Rooke v Tagaloa [2000] NSWCA 228

New South Wales Court of Appeal

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

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.