Re John Holland Constructions Pty Ltd v Luigi Iannello [1982] FCA 18 (25 February 1982)

FEDERAL COURT OF AUSTRALIA

Re: JOHN HOLLAND CONSTRUCTIONS PTY. LTD.
And: LUIGI IANNELLO
No. A.C.T. G.27 of 1980 Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Blackburn, J.
Franki, J.
McGregor, J.

CATCHWORDS

Negligence - damages - appeal - loss of future earning capacity.

HEARING

CANBERRA
25:2:1982

ORDER

1. The appeal is dismissed.

2. The appellant is to pay the respondent's costs of the appeal.

3. The respondent is to pay the appellant's costs of the respondent's application to file a cross-appeal.

DECISION

This is an appeal by John Holland Constructions Pty. Ltd. from a judgment of a single judge of the Supreme Court of the Australian Capital Territory. The respondent Luigi Iannello was awarded damages of $175,660 in respect of an injury which he suffered on 20 December 1977 when some planks forming part of a scaffolding collapsed and the respondent fell approximately 4 feet to the ground landing on his feet. The damages were made up of (a) an agreed amount of $32,853 in respect of his loss of wages from the time of the accident until 7 August 1980 which was the commencement of the hearing, (b) $20,000 for pain and suffering and loss of the amenities of life, (c) $2,807 for out of pocket expenses and (d) $120,000 for loss of future earning capacity. The appeal was only in respect of the amount of $120,000. The notice of appeal alleged that this amount was excessive and that the learned trial judge failed to make proper allowance for the prospects of recovery in reaching this figure. Judgment was given by the learned trial judge in September 1980 and the appeal was heard by this court in 1981.

At the time of the trial Barrell Insurances Pty. Ltd. v. Pennant Hills Restaurants Pty. Ltd. [1981] HCA 3; (1981) 34 A.L.R. 162 had not been decided by the High Court but the judgment in it was delivered shortly before the hearing of the appeal by this court.

The learned trial judge adopted a method of discounting in relation to loss of future earning capacity. The figure his Honour adopted was 6% and since that case it is clear from the judgment of the High Court in Todorovic v. Waller [1981] HCA 72; (1981) 56 A.L.J.R. 59, that the correct discount rate should have been 3% and that this rate, when used in relation to likely loss of future earning capacity, is intended to make the appropriate allowance for inflation, for future changes in rates of wages generally or of prices, and for tax (either actual or notional) upon income from investment of the sum awarded and that no further allowance should be made for these matters.

The appellant put its argument on two grounds, first that the basis of assessment which was implicit in the trial judge's approach to compensation for loss of earning capacity is not justified on the evidence and particularly on the evidence which the judge accepted and secondly, upon the basis that the judge made an inadequate allowance for residual capacity to work, the likelihood of recovery and the vicissitudes of life.

The appellant placed its main argument on the first ground. Reference was made to Barrell (supra) and the appellant argued that the questions which arose in that case did not arise in this appeal because there was a lack of evidence sufficient to support any judgment based upon calculations of this type. The respondent relied upon Barrell and upon the cases which had been decided after Barrell in the New South Wales Court of Appeal. The respondent pointed out that the defendant had called no evidence and that the respondent had indeed suffered fractures of two or three metatarsals as a result of the accident and that probably he would never work again.

In our opinion the court is required to do the best it can with the evidence but it should not heap guess upon guess or, as it was put by the Privy Council in Paul v. Rendell (1981) 55 A.L.J.R. 371 at 372, engage in "a double exercise in the art of prophesying".

Two doctors were called in evidence, Dr. A.T. Cairns and Dr. W.J. Coyle, both orthopaedic surgeons. Medical reports were tendered from these doctors and also from a Dr. J.R. Corry, a consultant rehabilitation medical practitioner, and Dr. M.R. Tennant, an experienced psychiatrist.

The learned trial judge held that the respondent sustained comminuted but not grossly displaced fractures of the bases of the left second and third metatarsals involving the tarso-metatarsal joints. His Honour dealt with the medical evidence in the following way:

"He was treated conservatively by his general practitioner, Dr. Smith. The treatment consisted of rest (elevation and use of crutches). Symptoms, however, persisted and, on 27 January 1978, Dr. Arklay, locum tenens for Dr. Smith, referred the plaintiff to Dr. W.J. Coyle, an orthopaedic surgeon. Dr. Coyle took the view, at that time, that, if anything, the plaintiff's injury had been over-treated. He instructed that the crutches be discarded and that activity, which I assume to be activity involving ordinary use of the foot, be resumed as comfort permitted under the supervision of the Woden Valley Hospital physiotherapy department. It seems that the plaintiff made a conscientious effort to rehabilitate himself and underwent a good deal of physiotherapy. Certainly the treatment he undertook seems to have satisfied Dr. Coyle who, reporting on 31 October 1978, stated that he was convinced that the plaintiff's disability was genuine and that he had made a conscientious effort at rehabilitation.

Nonetheless, the symptoms complained of by the plaintiff continued 'as bad as ever'. On 4 July 1978 Dr. Coyle, concluding that conservative treatment had failed, arthrodesed the medial two tarso-metatarsal joints at Woden Valley Hospital. Post-operatively the foot was immobilised in a plaster

cast until 18 August 1978 and then unsupported use was encouraged.

When seen on 29 September 1978, the fusion mass appeared radiologically solid but the symptoms continued unabated. Dr. Coyle was unable to explain this.

Having sought a second opinion from Dr. A. Cairns, another orthopaedic surgeon, Dr. Coyle followed Dr. Cairns' suggestion and performed further surgery on 14 February 1979 to extend the arthrodesis laterally to include the third metatarsal joint. He took the opportunity to inspect the earlier arthrodeses and found them solid. He carried out the additional fusion and again the result as shown by x-ray was successful.

Despite the two apparently successful operations, the plaintiff's symptoms remained as severe as ever. He was seen on 18 May 1979 when he complained of pain across the front of the ankle and also across the dorsal aspect of the first metatarso phalangeal joint when he put any pressure on this foot, especially when trying to toe off when walking. On examination at that time all the unfused joints appeared to have a good range of movement but forcing the foot movement caused considerable pain. The plaintiff was walking with the aid of a stick and claimed then to walk several miles each day.

Neither Dr. Coyle nor Dr. Cairns is able to establish an organic cause for the plaintiff's symptoms which continue.

Initially, Dr. Coyle and Dr. Cairns viewed the plaintiff as being an apparently stable and forthright individual but Dr. Cairns finally concluded that there must be some doubt as to the validity of that observation. Dr. Cairns suggested that some light might be shed on any psychogenic component in the continuing disability by the performance of a Pentothal pain study. He took the view that, if the current situation did not change (he was reporting on 12 August 1980), the plaintiff's position would remain static and unlikely to improve with the further passage of time and would render him incapable of pursuing any form of gainful employment which involves standing or walking.

There is a suggestion in a report by Dr. Corry, qualified primarily as a specialist physician but a consultant in rehabilitation medicine, that there has been soft tissue damage to the foot but Dr. Coyle does not accept this to be the case and on the whole I think I should accept generally Dr. Coyle's view. This leads me to the conclusion that the plaintiff's present complaints of pain, which I accept as genuine, have primarily psychogenic origin although I do not rule out the possibility of some minor persisting soft tissue damage.

I therefore find particularly helpful a report by Dr. Maxine Tennant, an experienced psychiatrist. She believes that the plaintiff has built up a critical-paranoid attitude about the treatment he has received. She believes also that when operation was undertaken in July 1978 the plaintiff's attitude was well established and he had a high expectation of further pain and failure in the treatment. She believes his pain to be genuine but cannot say whether it is due to physical factors, to psychological factors or to both. One feature of the pain is that it seems, on the evidence of Dr. Coyle, to be fairly generalised. I quote in full the last three paragraphs of Dr. Tennant's report:

'Mr. Ianello's nationality, limited education and real anxiety about future work prospects would all further contribute to the formation of a stress and the persistence of a traumatic neurosis.

Prognosis is difficult to predict. If physical pathology is the major factor it will obviously persist - and it must be remembered relatively minor pathology in a weight heaving part of the body can cause persistent and irritating pain likely to interfere with ability to cope with labouring work.

If there is a large psychological element litigation that is fair and successful in his eyes can be expected to reduce the level of his paranoid feelings of having been badly treated by the medical profession. This would thus improve the prospects of recovery.'

The plaintiff gave evidence. It was noted that he walked with a pronounced limp, rather more slowly when demonstrating his affliction than when walking initially to the witness box. He used a walking stick in his right hand and seemed to reach automatically for support with his left hand when such support was at or nearly to hand. He gave evidence of persisting symptoms."

His Honour concluded "I am satisfied on all the evidence that the plaintiff

remains incapacitated for physical work involving standing or working. The remaining questions as to his capacity is whether he will, after the verdict, improve markedly, if at all".

His Honour proceeded to assess damages upon the basis that the respondent was not shown to have been in bad health other than in any way caused by the accident and he found that the respondent's life expectancy would be normal but said that he had, to some extent, to take account of the possibility of premature death. He then proceeded upon the assumption that he would work until he was aged 65 and that he was entitled to be compensated for 19 years loss of earning capacity. His Honour then discounted this period of work by taking into account a risk that such psychological damage as he found the respondent had suffered from this accident might have occurred in later years when he was engaged on building work. He also took into account the question of income tax to be paid on any earnings from the award or part of it invested and the possibiltiy adverted to by Dr. Tennant in the last paragraph of her report. In short, the learned trial judge discounted the plaintiff's period of economic loss to 15 years and made no allowance in respect of income tax which investment of his award might require to be paid. He treated the future loss of earning capacity as a loss of $233 per week for 15 years and using 6% tables calculated this loss as $121,529 which he discounted to $120,000 making what he called a modest allowance for the possibility of earlier death.

The 6% discount used by the trial judge has been shown to be too high by the High Court in Todorovic v. Waller (supra). The learned trial judge must now be held to have acted on an error of principle and therefore this court should review his assessment (Precision Plastics Pty. Ltd. v. Demir [1975] HCA 27; (1975) 132 C.L.R. 362 at 369).

We see no reason to differ from the learned trial judge's assessment of the medical evidence. The respondent, born in Italy, in 1934, was at the time of the hearing about 46 years of age. After 6 years of primary education he left school at the age of 12 to work on his father's farm. This involved hard physical labour. Thereafter at the age of 18 for 2 years he worked as a house painter and after 18 months of national service became a collection agent in Naples, an occupation he followed for approximately 8 years. In 1962 he came to Canberra and until his injury in 1977 worked at a succession of jobs involving hard labouring in the construction industry. At one time he was a leading hand labourer for 2 years. He married in June 1963 and has four children. It is agreed that his wage loss till 7 August 1980 totalled $32,853 after taxation.

Taking the figure of $233 per week as a basis for consideration and using 3% discount tables the present value of this amount for a period of 10 years is of the order of $105,000. For 15 years the corresponding figure is of the order of $140,000.

We consider that had the respondent not suffered the accident it is reasonable to assume that he would have been able to engage in labouring work in the building field for something of the order of 10 to 15 years.

Just as the onset of inflation has affected the question of discounting it is relevant to bear in mind also that certain other matters have changed in recent years. Whereas in the past unemployment was very low at the moment there is some continuing unemployment. This factor was mentioned by Mason J. at p.74 in Todorovic v. Waller, (supra) when his Honour said:

"In the event it would be necessary to take into account the greater risks of unemployment now that it has become such a pressing and deep seated problem."

On the material before the trial judge we would arrive at the figure of about $120,000 for loss of future earning capacity. Certainly this is not a figure which is mathematically arrived at with any precision but in our opinion it is an appropriate figure for that head of damage.

We also note that the trial judge had the opportunity of seeing the respondent and that he said in his judgment that the respondent walked with a pronounced limp.

We have had in mind that it was common ground, in our opinion, that the respondent was unable to work at least until 7 August 1980 when it was agreed that the net loss of wages for the period from the date of the accident up to that date was $32,853. We have also formed the opinion that because the respondent was an uneducated labourer aged 46 at the time of the accident his chance of obtaining regular or indeed any work is small.

The respondent obtained leave to file a cross-appeal asking the court to award a greater amount for loss of earning capacity than did the trial judge.

In our opinion the cross-appeal has not succeeded.

The appellant submitted that this was an appropriate case for the grant of a new trial when further evidence could be presented. This submission was based on the argument that the evidence presented by the respondent in the trial was inadequate for the judgment which had been given. We would dismiss the appeal.

On the question of costs we would order the appellant to pay the respondent's costs of the appeal.

When leave was granted to the respondent to file a cross-appeal the question of costs was reserved. We would order the respondent to pay the appellant's costs of the application to file the cross-appeal. However, we do not consider that the costs of the appeal itself were increased by the cross-appeal and therefore my order for costs in relation to the cross-appeal would be limited in the way we have stated.

JOHN HOLLAND CONSTRUCTIONS PTY. LTD. (appellant) has appealed against a decision of a Judge of the Supreme Court of the Australian Capital Territory wherein he awarded $175,660.00 as damages for personal injury suffered by LUIGI IANNELLO (respondent). The hearing was on 4 September 1980. Judgment was reserved then delivered on 5 September 1980.

The events which gave rise to the action need not be referred to in any more detail than to say that the respondent was injured on 20 December 1977 when, during the course of his employment by the appellant, he was walking upon some planks forming part of a scaffolding, the planks fell and he also, some four feet to the ground landing on his feet. Thereby he sustained, to his left foot, comminuted but not grossly displaced fractures of the bases of the second and third metatarsal bones involving the tarso-metatarsal joints. Liability was not in issue, interlocutory judgment having been signed on 29 January 1980. The task of the learned Judge at first instance was to assess damages.

When the matter was called upon before us, the respondent sought leave to enter a cross appeal claiming that because of error by the learned trial Judge in discounting the amount included for future economic loss, the sum awarded was inadequate. After argument, we allowed the filing of a Notice of Cross Appeal.

The respondent was born in Italy on 7 September 1934, left school at the age of 12 and worked in that country, first of all on a farm and generally on the land, thereafter as a house painter and for a period of eight years in Naples as a collection agent. There was also a period of 18 months' National Service.

In February 1962 the respondent came to and has since lived in Canberra. To this time he has followed various occupations, viz. driving a front end loader and bulldozer, working as a labourer, as a concreter and as a contractor. He has also worked as a labourer with a company engaged in building sewerage tunnels. He commenced employment with the appellant in June of 1977. Following the accident respondent was taken to Queanbeyan Hospital where x-rays were taken. He was then sent to his own Doctor.

In his Honour's judgment, he found that the respondent was treated conservatively by his general practitioner, Dr. Smith, until, on 27 January 1978, by that gentleman's locum tenens, he was referred to Dr. Coyle, an orthopaedic surgeon. The last named took the view that, if anything, the respondent had been "over-treated". He instructed that a crutch then being used by the respondent be discarded; that activity be resumed as comfort permitted subject to supervision. The learned trial Judge considered the respondent had made a conscientious effort to rehabilitate himself, undergoing a great deal of physiotherapy. He referred to Dr. Coyle's statement in his report of 31 October 1978 in this regard. Nevertheless the symptoms, complained of by the respondent, continued "as bad as ever". It is common ground that on 4 July 1978 at Woden Valley Hospital Dr. Coyle arthrodesed the medial two tarso-metatarsal joints whereafter the foot was immobilised in plaster until 18 August 1978. Then unsupported use was encouraged. Dr. Coyle reported (20 May 1980) that despite radiological evidence of successful fusion seen on 29 September 1978, the symptoms continued unabated. Dr. Coyle was unable to explain this. As his Honour's judgment noted, on 14 February 1979, after a second opinion, (i.e. from Dr. Cairns) the arthrodesis was extended laterally to include the third metatarsal joint; this also was shown to have been successful and on inspection at this time the earlier arthrodeses were found to be solid. As the learned trial Judge mentioned, in Dr. Coyle's examiation of the respondent on 18 May 1979, the latter complained of pain across the front of the ankle and across a dorsal aspect of the foot referred to in the judgment. This pain was said to occur when respondent put pressure on the foot. On examination, all the unfused joints appeared to have a good range of movement, the respondent was walking with the aid of a stick and claimed then to walk several miles each day; but forcing the foot movement caused considerable pain.

His Honour's judgment apparently accepts that neither of two orthopaedic surgeons who have seen the respondent, viz. Dr. Coyle and Dr. Cairns, were able to establish any organic cause for the continuation of these symptoms. Dr. Cairns suggested that some light might be shed on any psychogenic component in the continuing disability by the performance of a Pentothal pain study; and if the current situation did not change, i.e. the situation as at 24 July 1980, referred to in a Report dated 12 August 1980, the respondent's position would remain static, unlikely to improve, and would render him incapable of pursuing any form of gainful employment which involved standing or walking. But he recommended the Pentathol Study. His Honour, with some hesitation, accepted Dr. Coyle's view that there had not been soft tissue damage to the foot. His Honour then wrote -

"This leads me to the conclusion that the plaintiff's present complaints of pain, which I accept as genuine, have primarily psychogenic origin although I do not rule out the possibility of some minor persisting soft tissue damage."

Except as quoted, Dr. Cairns, called in plaintiff's case, was not asked and did not express an opinion as to whether he was then able to work or whether he would ever be able to work; or, if so, what sort of activities he could undertake.

Dr. Coyle's evidence appears to have been largely accepted by the learned trial Judge. I note that in his report of 31 October 1978, Dr. Coyle said that he was unable to give any prognosis for the respondent's foot injury; that it may be that he will remain disabled for some time and that further surgery may be necessary. In his report of 20 May 1980 the Doctor, after viewing the latest complaints of the respondent and noting that he claimed to walk several miles each day, said that he remained at a loss as to the cause of the symptoms; that he had wondered whether there was a significant functional element because, inter alia, he could not any longer relate his symptoms to the known injuries. He said -

"I do not believe that he is malingering but I feel that some of his symptoms must be emotionally based. I think the prognosis for recovery is poor at least until his workers compensation litigation is complete."

As to the respondent's pain, he said in his viva voce evidence -

". . . . I do believe he has some pain. I am just doubtful about the degree of real pain that he has. I am sure it is real in his eyes."

Referring to the prospects of respondent improving, he gave his evidence -

"Do you now think that some rehabilitation training might make him more

active and less painful?----I would not be optimistic about that.

What about special boots?----You know, I doubt if it is going to make a great deal of difference.

Could it make some?----It could. The difficulty I have is localising the site of his pain. He had fractures involving the medial two or possibly three of the tarsometatarsal joints. Now, they have been fused, they have been - I have direct vision evidence that the medial two were successful fused and radiological evidence that the third is fused. Now this is roughly the site of his pain. There is no convincing clinical or radiological evidence to show - signs to show that he has got trouble anywhere else. He just has pain everywhere.

You have seen Dr. Corry, in exhibit C, suggest this:

It is possible that with special footwear and gait restraining* his level of activity could be improved and he could become competitive for some light sedentary unskilled occupation such as watchman.

Do you disagree with that, doctor?---- Well, I certainly do not disagree with it. I would not be optimistic."

* may be meant "retraining".

Respondent was also examined on 23 July 1980 by a psychiatrist, Dr. Maxine Tennant. The learned trial Judge found her report of 28 August 1980 which was of the examination on 23 July 1980 "particularly helpful".

After references to it, he quoted this passage from her report -

"Mr. Ianello's nationality, limited education and real anxiety about future work prospects would all further contribute to the formation of a

stress and the persistence of a traumatic neurosis.

Prognosis is difficult to predict. If physical pathology is the major factor it will obviously persist - and it must be remembered relatively minor pathology in a weight heaving* part of the body can cause persistent and irritating pain likely to interfere with ability to cope with labouring work. If there is a large psychological element litigation that is fair and successful in his eyes can be expected to reduce the level of his paranoid feelings of having been badly treated by the medical profession. This would thus improve the prospects of recovery."

*Probably the word in the report "heaving" should have been "bearing".

Dr. Coyle did not express any opinion himself as to the area of work which

the respondent might undertake nor did he state, except as to the period before the first arthrodeses, applicant was unable to work.

The respondent himself in evidence said that he could walk for half an hour or three quarters of an hour; then he must rest. Further, if he sat for long periods, his foot would go to sleep. He said also that he used to go down to the coast before the accident but could not do so now, could not walk along the sand with a stick and cannot do any more gardening.

From the evidence it seems that there was an attempt to provide him with special shoes but he did not continue to attend to finalise this provision. He thought maybe that it was worth trying to have such shoes. He stated that after this case he would "look about it" to see if it "can do something for me". He was referring to the provision on his behalf of special shoes. The respondent himself did not say that he could do no work nor did he discuss what work he might undertake. He has not been gainfully employed since the accident.

This case, I suggest, with respect, posed difficult problems for the learned trial Judge of estimation of damages, as his reasons indicate. It does not appear that it was sought to satisfy his Honour, according to my reading of his reasons, as to his continuing incapacity to work for a measurable period; or at least his Honour did not make such a finding. I do not mean to imply that, confronted with the evidence in this case, his Honour could be expected to make with accuracy such a prediction. Yet the reasons for judgment does not in terms make any specific finding relevant to this quite crucial problem. In the area of his reasons bearing upon this matter, his Honour said -

"I am satisfied on all the evidence that the plaintiff remains incapacitated for physical work involving standing or walking. The remaining question as to his capacity is whether he will, after verdict, improve markedly, if at all."

I note that his Honour did not otherwise express a finding as to the future. And later -

"Dr. Coyle does not think that special shoes or any rehabilitation that might be undertaken is likely to assist the plaintiff to get back to work and I accept this view particularly since the plaintiff seems to have had an unfortunate experience when he sought rehabilitation as a result of a suggestion by an officer of the Department of Social Security."

Dr. Coyle in evidence did express a lack of optimism about the possibility of respondent benefiting from rehabilitation or special shoes. However, to state that because of lack of confidence in rehabilitation or the use of special shoes

"......Dr. Coyle did not think....... special shoes or any rehabilitation ......is likely to assist plaintiff to get back to work...."

seems to me to attribute to Dr. Coyle a more pessimistic view about respondent's work capacity than he expressed.

It is to be observed that the reaction and experience referred to in his evidence that respondent had regarding special shoes, does not seem to have been of such dimension as would dissuade a reasonable man, wishing to improve a situation, from continuing to seek assistance of the kind mentioned. In fact, the respondent stated in evidence that Dr. Corry had only told him about the special shoes "about a month ago" and that "after this case" he would, in effect, look to see "if it can do something for me".

It is clear that the learned trial Judge assessed compensation for loss of earning capacity of the respondent for 19 years i.e. for up to an age of 65 and upon a basis that there was a total loss. He did, however, state that such a loss would be to over compensate him and with that approach he discounted the respondent's period of economic loss from 19 years to 15 years, making no allowance, as part of the discounting process, in respect of income tax which investment of the award might require to be paid.

Upon a consideration of the whole of the evidence and the judgment, some of the findings from which I have quoted, and assisted by Counsels' arguments, first I should state that there seems little dispute about objective facts. Rather is there contention about the appropriate evaluation thereof.

In my view the evidence did not establish, at least after August 1980, that the respondent was totally incapacitated from all work; or that he would so remain thus entitling him to inclusion as to one component of his damages a calculation for 15 years (being a normal worklife expectancy discounted by respondent's own sensitivity to 'psychological damage'). There is room for noting respondent's capacity for exaggeration, as his Honour seems to have found. I do not refer only to the failure of medical evidence having regard to undisputed findings to justify the amount of pain from the physical condition; but, rather, to respondent's evidence that he was no longer able to go to the Italian Club. His Honour understandably expressed his failure to be satisfied that the respondent had been so affected as the result of his condition.

Accordingly, I am of the view that the sum included in the total damages for economic loss is out of all proportion to what had been established; and that this was not a case where it was appropriate to capitalise a continued weekly loss for the period mentioned. Nor, in the circumstances such a discrete calculation not being appropriate, is it suitable to apply discounting figures.

In any recalculation, one would wonder anyway if a labourer on building sites really could have a worklife expectancy to 65 or 60 years; but this was not the subject of argument. And the greater present prevailing risk of unemployment would, I consider, argue for a less optimistic view than heretofore of an earning capacity in 1977 continuing into the present and future - cf. per Mason J. in Todorovic v. Waller 16 December 1981 H.C. (unreported) at p.29 - particularly for a labourer on construction work.

In my view, the evidence called for attribution of a global sum rather than permitting the calculation of a present value of a recurrent periodic payment. For myself, making due allowance for the trial Judge's view of the matter, I consider that instead of $120,000, $80,000 would be a generous estimate of the sum to compensate respondent for any destruction of earning capacity.

I am aware that the other members of the Court have taken a view of this matter which differs from mine and would add that were I to consider the use of discount tables appropriate, I would, with respect, agree with the approach adopted by the majority:

I would propose that -

1. The appeal be upheld.

2. For the judgment of $175,660.00 there should be entered judgment for the respondent in the sum of $135,660.00.

3. Respondent to pay the costs of this appeal.

4. The cross appeal be dismissed with no order as to costs.