BORAL MONTORO PTY LTD v McMILLAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, PRIESTLEY and BEAZLEY JJA 4 March 1998, 4 March 1998 [1998] NSWCA 42 Damages — personal injury — back condition with 20% permanent impairment — general damages — past and future economic loss — cost of future surgery and physiotherapy Mason P The respondent was injured at work on 11 June 1993 while loading large pallets stacked with ridge capping onto his truck. He was required to take sections of the ridge capping and load it on a small pallet so that it could be taken by forklift truck for shrink wrapping and then returned by forklift to his truck. It was dark. As the respondent moved across a large pallet, his foot went down between the slats. He lost balance, fell backwards and landed on his back. The ridge capping fell on top of him. The learned trial judge, Donovan AJ, found each of the defendants liable for breach of their duty of care. The respondent was a subcontractor to one defendant, DTM Pty Ltd and DTM Pty Ltd was a contractor to the other defendant, Boral Montoro Pty Ltd. The accident happened at the premises of Boral Montoro. This appeal is brought by Boral Montoro and is limited to the award of damages. The respondent was born in 1950. He completed his fifth year of high school in 1966. In January 1969 he became a police constable and he continued with the Police Force until 1985. He retired from the Police Force with the rank of Detective Sergeant. He purchased a table-top truck for the purpose of undertaking haulage and delivery work. It was in this business, in partnership with his wife, that the respondent was engaged at the time of the accident. The respondent consulted his general practitioner on the day of the accident. Initially he underwent acupuncture, heat treatment and physiotherapy. He was then referred to an orthopaedic surgeon, Dr Wallace, who first saw him on 9 July 1993. In August 1993 the respondent sold his truck. He has not returned to haulage work. Between November 1993 and June 1994 the respondent carried out some work as a private inquiry agent in his brother's business. He found difficulty carrying out that work because of his back. He found it difficult to sit at a computer or word processor for any length of time and also difficulty in carrying out surveillance work which required him to sit in a motor car for a long period of time. On 5 September 1994 the respondent and his wife took a twelve-year lease of the Railway Hotel, Bathurst. They were still in that business at the time of the trial in March 1997. A video of the respondent working at the hotel was taken in about March 1996. It showed him able to do some bar work although with stiffness and slowness. The trial judge's summary of the respondent's injury was that it was significant. Both Dr Stephen and Dr Wallace had come to the conclusion that the respondent had an internal deranging of the area of the L5/S1 disc with 2 UNREPORTED JUDGMENTS associated problems at L4/5. Dr Stephen thought that there was probably a tear of the annulus, having regard to the mechanism of the injury. Dr Burgess, on the other hand, concluded that it was discogenic pain at L4/S and LS/S1 with a pre-existing spondylitic condition. The trial judge said that on any view of it the plaintiff was asymptomatic prior to the injury. He held that there was no evidence to suggest that the plaintiff would not, apart from the accident, have been able to continue working till age 60 or 65. Dr Burgess, in his report of 11 July 1995, said: "This man had an occult mild degenerative change in his lumbar spine which caused no symptoms prior to his accident, as he describes it. Since his accident he has had the symptoms and signs of persistent lumbar spondylitis and irritability in the left sciatic nerve. He has clinical symptoms and signs of discogenic pain coming from L415 and L5/S1 with incipient left sciatica. I don't feel that he needs a CT scan to confirm this. His current situation is one of being permanently unable to cope with persistent lumbar stresses and he is fit only for duties that avoid stressing his back and he faces at some time in the future a worsening of his left sciatica and a need for laminectomy/decompression and consideration for fusion. His problem represents a 20 per cent permanent impairment of his back and a 10 per cent permanent loss of efficient use of the whole on his left leg. A quarter or 25 per cent of this disability I'd put down to the occult predisposing non-symptomatic lumbar spondylosis. I feel that he is capable of doing the things he is doing, for he finds it distracting and he has enough people around to do the heavy work. The prognosis for the future, however, is somewhat guarded. The respondent reported difficulty in driving a motor vehicle over long distances. He has difficulty dressing himself and his sleep is disturbed by ongoing pain. The pain is pretty constant and present in moderate or lesser degree every day. The respondent has had to give up pastimes such as golf and water skiing. The continuing back problems have created difficulties in performing the respondent's duties at the hotel. Physiotherapy offers some relief The trial judge was satisfied that the respondent suffers continuing disability stemming from the accident. He described the respondent as a "tryer' who made genuine but ultimately unsuccessful efforts to put the injury behind him. His conclusion, which is not challenged in the appeal, is that the respondent does have a significant disability and one that will impact materially upon his capacity to cam income for the whole of his working life. I shall now address the grounds of appeal. GENERAL DAMAGES At trial the respondent suggested that $130,000 was appropriate for general damages. The defendants submitted a range of about $55,000 would be appropriate. The trial judge allowed $100,000 for general damages with a past component of $35,000. The appellant has submitted that this award was excessive, given the fact that the respondent has not required hospital or surgical treatment and has been able to cope in employment, albeit assisted from time to time by physiotherapy or pain killers. His condition has plateaued. URJ BORAL MONTORO PTY LTD v McMILLAN (Mason P) 3 In my view the award is within an appropriate range having regard to the extent and lifelong duration of the condition which I have already described. The trial judge's view was, as I have indicated, that the respondent was a tryer but nevertheless his Honour found that he suffered significant and permanent disability. The attack on the award of general damages fails, in my view. PAST ECONOMIC LOSS A report from Towers Perrin calculated past economic loss at $85,905 which calculated pre-accident earnings at $588 per week and deducted actual earnings. Since these earnings came from a road haulage partnership and later a hotel business partnership between the respondent and his wife in circumstances where the greater part of the actual work was done by the respondent, the trial judge attributed $88 per week of the $588 net income to the respondent's wife. This adjustment led to a figure of $67,000. The respondent's counsel conceded at trial that $150 per week was an appropriate amount for the respondent, his wife and their daughter as the value of "accommodation, food, electricity, et cetera" accruing from the free board at the Railway Hotel, Bathurst. Calculated to age sixty-five, that sum amounted to $19,500. The appellant submits that the whole of that $19,500 should have been deducted from the past economic loss of $67,000, leaving a balance of $47,500. However, the trial judge only deducted $16,000 on the basis that $3,500 was the portion of the benefit accruing to the respondent's wife. His Honour apportioned the benefit so as to correspond roughly with the deduction of $88 from $588 on the income side of the partnership. I see no error in what the trial judge did. The concession admitted certain primary facts but those facts permitted assessment and application in the exercise of calculating damages. No single approach was called for. I do not think that the trial judge erred in attributing approximately eighteen per cent of the $19,500 to the respondent's wife. She, doubtless, performed work in the hotel. Not all of the board and lodging component should be treated as accruing to her solely through her husband. FUTURE ECONOMIC LOSS The respondent was aged forty-seven at trial. The trial judge awarded future economic loss to age sixty in the sum of $190,000. This was based on $500 per week, which led to a figure of $281,660, using the three per cent tables. The conventional reduction for vicissitudes brought it down to $239,275. Because the respondent was considered to have some residual earning capacity this figure was reduced to $190,000. None of this is in dispute in the appeal. What is challenged is the award of an additional $40,000 described as a lump sum cushion for the period aged sixty to sixty-five. The respondent had said in evidence: "Q. As at 1986 what were your intentions about continuing in this line of business? A. Continue probably till I retired. Q. Did you have any particular retirement age in mind at that time? A. Not really, no, about around 60, I suppose, I presume. The learned trial judge said that the interpretation he placed on this evidence was not that the respondent meant he intended to retire completely. His Honour took the view that the respondent would have worked at something after age sixty, although he felt it impossible to make a clear determination of what that 4 UNREPORTED JUDGMENTS might have been. The figure of $40,000 represents a calculated sum of about $ 240 per week, using the three per cent tables. The appellant submits that the trial judge had no evidence to support an award for any amount beyond aged sixty. I disagree. It is conventional for a judge to commence this part of a damages assessment on the basis that men will work until age sixty-five, the age at which the pension becomes payable (cf Medlin v State Government Insurance Office Commission (1995) 182 CLR | at 24, per McHugh J; Balasubramanian v Sara, Court of Appeal, unreported, 12 June 1997). Counsel for the appellant accepted this. In my view the trial judge was entitled to read the respondent's answer as less than categorical as a statement of his intention about the date of retirement. He was also entitled to make an appropriate allowance for continuing pre-accident employment after age sixty. The appellant points to the heavy nature of the haulage work in which the respondent was engaged pre-accident. That may be granted, but it does not follow that a person with the respondent's background would have, had he not been injured, continued in that same form of employment until final retirement. COST OF FUTURE SURGERY The parties agreed at the trial that the total cost of future surgery, being a fusion operation, if undergone by the. respondent, was $12,052. That was the evidence and the only evidence that was given on that topic. The trial judge said that the plaintiff had given evidence that he did not want to have future surgery, a sentiment with which he could sympathise. However, he held that there was a real issue that he might have to have some future surgery and he made "some allowance" for that. He noted that it was uncertain when that will be, if it occurs at all. Having noted that the figure for surgery, if carried out, was $12,052, his Honour said, "Doing the best I can and allowing for the fact that the surgery may not occur for at least a few years, but also allowing for the fact that at that time the surgery will probably cost significantly more than now, I will allow the sum of $9000." The medical opinion supporting the possible need for surgery was that of Dr Burgess, an orthopaedic surgeon, who had been consulted for medico legal purposes. He had said: "His current situation is one of being permanently unable to cope with specific lumbar stresses and he is permanently fit only for duties that avoid stressing his back, and he faces at some time in the future a worsening of his left sciatica and a need for laminectomy/decompression and consideration for fusion." Although the respondent's treating doctor, Dr Stephen, did not support surgery, the trial judge was, in my view, entitled to accept the evidence of Dr Burgess, which he obviously did. The matter in dispute is the deduction of only $3000. The appellant submits that a much greater deduction should have been made to recognise the possibility that surgery may not have been undertaken at all. The respondent had said: "BRANSON: Q. Mr McMillan, some of the doctors, particularly the specialists, that you have seen have discussed with you the possibility of spinal surgery, have they not? A. Yes. Q. And in particular Dr Burgess? A. Yes. URJ BORAL MONTORO PTY LTD v McMILLAN (Priestley JA) 5 Q. Please tell his Honour what your attitude is towards any such proposed spinal surgery? A. At this stage? ''m going to put up with it. Q. Is there any possibility in the future that you may submit yourself to spinal surgery? A. Yes, I will say I will eventually have to. Q. But you do not know when, obviously enough? A. No, I don't." In my view the trial judge was quite entitled to conclude that surgery was a real chance and to make an appropriate allowance. The allowance should also take into account the fact that if the chance came home it would be at some time in the future. I cannot understand the basis upon which the trial judge allowed, as he appeared to have done, for the fact that the surgery would probably cost significantly more in the future than it was at present. There seemed to be no evidence for this and the conventional way to allow for the impact of inflation is to recognise that the money will be capable of earning interest in the hands of the plaintiff who will receive it at time of verdict. I think it appropriate, therefore, to re-exercise the discretion. Doing the best I can do on the evidence, in my view there is a fifty per cent chance that the surgery will be called for and, if it is, it will happen in five years' time. On this basis the allowance has been calculated at $5713. This figure should apply rather than $9000. FUTURE PHYSIOTHERAPY The trial judge allowed for future physiotherapy in the sum of $18,441. He found that the cost of a visit would be $38.60 after initial consultation and concluded that the plaintiff may well have physiotherapy at the rate of one per fortnight over the balance of his life expectancy. I do not see how this figure is supportable on the evidence that was before his Honour. The medical evidence suggested that physiotherapy over a period of two years was advised by one of the doctors, Dr Wallace, and the evidence of the respondent himself was that, in the time prior to trial, he had had physiotherapy approximately every four to six weeks and that this had given him some relief. It was his practice to resort to therapy when the back pain became unbearable. It is necessarily a very impressionistic matter but, given the past history and the medical evidence, I think that once a fortnight was an unreasonably generous assessment for future physiotherapy. I have little difficulty in projecting the figure over the respondent's lifetime rather than the initial period, but I think that the evidence does not support such a regularity of physiotherapy. I would halve the amount that his Honour gave on that account. COSTS OF THE APPEAL On the question of the costs of the appeal, the appellant has been successful but only in very minor respects in disturbing the trial judge's award, in my assessment of the matter. I would propose that the verdict below be adjusted with figures to be calculated by the parties which may take into account interest, if that is worth worrying about, but adjusted only in the respects that I have mentioned, and I would order the appellant to pay the respondents' costs of the appeal. Priestley JA I agree. UNREPORTED JUDGMENTS Beazley JA I agree. Appellant to pay the respondent's cost of the appeal. Counsel for the appellant: M T McCulloch Solicitors for the appellant: Phillips Fox Counsel for the respondent: M C Branson QC/A Tudehope Solicitors for the respondent: Sutton Byrne, Penrith