Andjelic v Marsland- Nominal Defendant v Gardikiotis

[1994] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S86 of 1994

B e t w e e n -

NIKOLA ANDJELIC

Applicant

and

STUART MARSLAND, by his tutor THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES

Respondent

Office of the Registry
              Sydney        No S82 of 1994

B e t w e e n -

THE NOMINAL DEFENDANT

Applicant

and

MARY GARDIKIOTIS

Respondent

Applications for special leave
  to appeal

MASON CJ
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 1994, AT 9.51 AM

Copyright in the High Court of Australia

________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR C.T. BARRY, QC and MR G.A. LAUGHTON, for the applicant Andjelic.   (instructed by Audrey Balla)

MR A.S. MORRISON, QC:   May it please the Court, I appear with my learned friend, MR D.J. HOOKE, for the respondent.  (instructed by Stacks - The Law Firm, with Goudkamp Mahony)

MASON CJ:   Mr Jackson, it may be convenient to call the next case on with this one because they have the common point and, therefore, we could hear counsel for the applicant in Nominal Defendant v Gardikiotis after we hear you.

MR C.T. BARRY, QC:   May it please the Court, in the matter of Nominal Defendant v Gardikiotis, I appear with my learned friend, MR G.A. LAUGHTON for the applicant.   (instructed by G.M Meadows, Solicitor for the Government Insurance Office)

MR A.S. MORRISON, QC:   May it please the Court, I appear with my learned friend, MR D.J. HOOKE, for the respondent.  (instructed by Gadens Ridgeway)

MASON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I say something immediately about the changes which have occurred in the interest provision in the Motor Accident Act 1988, section 73.  It is true that those amendments would make academic for future cases under that Act the issues now sought to be agitated but there are two further considerations.  The first is that there is a significant number of cases under the Motor Accident Act which are, as yet, undetermined by the Court of Appeal and they are set out in the affidavit of Ms Balla.  Secondly, similar issues continue to arise under the exactly equivalent provision of the Workers Compensation Act 1987 in relation to interest, and that provision has not been amended. It remains in a form exactly similar, apart from a couple of minor things, to the terms of section 73 in issue in the present proceedings.

Your Honours should have there copies of the various enactments to which I have referred.  The relevant provision of the Workers Compensation Act
is section 151M which deals with interest, and there is a document there, Your Honours, that shows the differences.

Your Honours, could I turn immediately to the central issue?  The central issue on which there was a difference of view in the Court of Appeal is whether the terms of section 73, which Your Honours will see set out at page 167 of the application book, operated in one of two ways.  The first way was simply as a threshold, and I will explain, Your Honours, what I mean by that in just a second.  The second possibility was that they provided as well the basis upon which interest should be awarded if it were to be awarded.

The decision of the majority, at page 168, lines 30 to 35, was that, as Your Honours will see, once the plaintiff overcame the statutory hurdles, ordinary principles applied.  What that meant, Your Honours, if I can go back to page 167, was that once the requirements of section 73(2) were satisfied, or one of the requirements were satisfied, then the terms of section 73(2) provided no guidance as to the manner of exercise of the discretion to award interest.

The other view for which we would contend was taken by Mr Justice Mahoney.  Your Honours will see that at page 184, commencing about line 34 and going through to page 185, line 25.  Your Honours, may I, when Your Honours have seen that, go back then to the terms of section 73, appearing at page 167?

Your Honours will see that in subsection (1) it is provided that:

Except as provided by this section, a court shall not, in relation to an award of damages, order the payment of interest -

and then the proposition is elaborated upon in the remaining words of that subsection.

The circumstances in which the exception in the  opening words of section 73(1) is to apply are set out in subsection (2).  Your Honours will see that the provisions of 2(a), 2(b) and 2(c) are all concerned with matters affecting the conduct of the litigation by the defendant. 

Now, Your Honours, what subsection (5) then goes on to say is that:

Except as provided by this section, nothing in this section affects any other law relating to the payment of interest -

Now, Your Honours, our submission, and I can put it very shortly, is this, that it seems odd, we would submit with respect, for the legislature to have gone to the extent of, first, setting out the detail in section 73(2) and, secondly, combining that with the relatively emphatic terms of subsection (1) if all that was intended was that the existence of one of the sets of circumstances in subsection (2) was to allow interest to be awarded without there being any regard to the effect of the circumstance which have provided the occasion for the granting of interest.

GAUDRON J:   Assuming you be right in that respect, what consequence does that have for interest in this case?

MR JACKSON:   The consequence, Your Honour, is that whereas in the present case interest was awarded from the date of the injury, the appropriate time would be a time later than that, the time being that from which, in effect - Your Honours will see at the top of page 168. 

Your Honours, I should say Mr Justice Mahoney, in the light of the fact he was in dissent, did not go into detail in the calculation of what would happen.

GAUDRON J:   Would it have any consequence other than the time from which it should be calculated?

MR JACKSON:   No, Your Honour, but that affects the quantum, of course.

GAUDRON J:   Yes.  It does not go to rate?

MR JACKSON:   No, Your Honour.  Your Honour, perhaps I am answering that a little quickly in saying that.  The position would be, of course, that interest would be interest calculated prima facie from a later date.  When one started to do the actual exercise, it may be that that gives rise to slightly different considerations in relation to the quantum of the interest.  But, Your Honour, the primary thing is the date.

Your Honours, could I just say one further thing about this and it is this, that as is obvious from the fact that the two members of the Court of Appeal, the majority, were of the view that section 73(2) simply provided a threshold, it is apparent, of course, that it is a possible view that that is all it does, in our submission, however, the combination of (1) and (2) indicates that it is not the better view.

Your Honours, could I go then to the two other matters raised in relation to the application, and these are both on the assumption that the first submission would not succeed   The first concerns interest on non-economic loss.  That is dealt with by section 79.  I should say, Your Honours, section 79 - if I could take Your Honours to it for just a moment - deals with the award of damages for non-economic loss.  Your Honours will see it on the penultimate page of the document which is headed Motor Accident Act 1988.  As Your Honours will see from section 79(3):

The maximum amount which may be awarded for non‑economic loss is $180,000.

It was only to be awarded “in a most extreme case”.  The term “non-economic loss” dealt with by section 79 is a term which is defined by section 68, which is on the first page of the document that Your Honours have and it is apparent that it relates to both past and future events.  The maximum provided for by section 79(3) is a maximum which, from time to time, was increased by the operation of the escalation provision in section 80.

Your Honours, the respondent, at the time of trial, had been awarded a sum slightly less than the then maximum in that he was awarded $168,300 at a time when the maximum was $192,600.  Your Honours, that that is so appears at page 117, line 26 and at page 118, lines 26 to 38.  The award was increased by the Court of Appeal and it was increased to, in effect, the maximum applicable at the time of judgment.  That that is so appears at page 123, line 40, through to page 124, line 5. 

Now, Your Honours, the $211,000 contains a sum in‑built inflation factor in the sense that there is the increase in the statutory amount by reason of the operation of section 80, between the trial and the judgment.  Now, Your Honours, no doubt, that is not an exact amount and it may not reflect adequately or perhaps it reflects inadequately the way in which there has been changes in the value of money but it does represent a legislative choice about the amounts.

The award of interest was on the whole of the $211,000, the higher amount, from the date of injury.  That that is so, Your Honours, appears at page 170, line 15, through to page 171, line 25 and, also, Your Honours, at page 174, lines 26 to 30.  And, Your Honours, if I could just perhaps say it again, the increase to $211,000 was brought about only because the judgment on appeal was given at a later time. 

Your Honours, we would submit it was wrong to allow the award of interest to depend on the fact that a higher amount might have been awarded if there had not been the statutory limitation on damages.  That that approach was taken by the Court of Appeal appears at page 170 in the passage commencing at line 15 and going through to page 171, line 25 and, in particular, Your Honours, in the large paragraph on page 170 where the court said, in effect, if there were not a statutory provision of section 79 then, under the general law, you would get much more. Because there is a statutory restriction, in those circumstances, Your Honours will see, in the passage to which I have referred, because of the statutory restriction, they say, at the bottom of page 170:

It follows that the plaintiff is entitled to interest on this component in full -

Your Honours, the short fact was that the capped figure was the maximum which might have been obtained and the only question was whether that figure should have been paid at an earlier time.  Your Honours, in deciding that there should have been an award of full interest, and that is that there should not have been an application of, in effect, a Gogic principle, we would submit that the Court of Appeal erred.  If there is a ceiling on damages and the ceiling moves because of inflationary factors, there is every reason to apply the Gogic figure.  The Gogic approach and the view of the majority, at page 171, in the first paragraph on that page, should not be accepted because - - -

GAUDRON J:   Was this argument in fact put in the Court of Appeal?

MR JACKSON:   Your Honour, the argument was put that the Gogic principle should be applied.  The argument was rejected.

GAUDRON J:   But by reference to the in-built inflation factor or on some other basis?

MR JACKSON:   Your Honour, in part, as an underlying part of the argument.  Perhaps it was not put in exactly the same way as I put it to Your Honour.

GAUDRON J:   It does not seem to emerge in the judgments.

MR JACKSON:   If Your Honours look at page 171, Your Honours will see at the top of the page the argument was that the Gogic principle should be applied.  Then Your Honours will see the way in which it was rejected.  Your Honours will see the reference to “a built-in inflationary factor” at lines 10 and 11 as being what Gogic establishes, and then between lines 15 to 22, in effect, what I have been putting is rejected.  Your Honour, I think it is probably right to say it was not put in quite the same way.

Your Honours, what we would submit is, really, that the terms of section 79 are essentially terms which represent the legislative view as to the effect to be given to inflation and there is no basis for having any further interest component in such a case.

Your Honours, the third matter with which we would seek to deal concerns past gratuitous services.  The amount which was awarded in respect to those services was $84,934.  That appears at page 134.  All that sum was the subject of an award of interest.  In the past there had been a difference of view on whether interest should be allowed on amounts of this kind which were not actually paid and the position in New South Wales differed from that in some other States.

That was overruled by the majority’s decision in the present case.  Your Honours, I should say that we recognise that the Court has already refused special leave on a similar issue arising in another State under the general law.  But what the majority’s decision in the present case, we would submit, leaves out of account is that where there is a legislative provision dealing with the matter, as there is in section 72(5) and (6), in the present case, dealing with the way in which those sums are to be calculated, that represents, we would submit, the legislatures view that whilst an amount may be allowed for, the amount is to be arbitrary and the amount is to be paid whenever the case comes to be heard.  Your Honours, those are our
submissions.

MASON CJ   Yes, thank you, Mr Jackson.  Mr Barry, it may be convenient to hear you.  You have an additional point.

MR BARRY:   Yes.  The additional point, Your Honours, arises in relation to fund management.

MASON CJ:   Do you want to add to Mr Jackson’s submissions, in the first instance?

MR BARRY:   No, Your Honour.

MASON CJ:   You are content to adopt his - - -

MR BARRY:   Yes, Your Honour.  Could I identify the additional point that arises in the Gardikiotis application by taking Your Honours to page 59 of the application book at about line 26 where Mr Justice Meagher deals with the head of damage under the heading “Fund management”.  His Honour there says:

On any view, the plaintiff is entitled to a very large verdict: in my opinion, on the heads of damage discussed so far, the figure is -

and His Honour nominates some figures. He goes on:

Subtracting the sums referable to out‑of‑pockets and past voluntary care, she will still have an enormous fund which she will have to manage for her remaining forty years.   She is certainly not mentally incapacitated (although, equally, she is not a genius), but is hardly fit to invest such a fund without outside advice.  She has selected a branch of Westpac for that purpose.....In principle, I cannot see why if a defendant’s tort has generated a reasonable need in a plaintiff for fund management, and that need is reasonably foreseeable, the plaintiff is not entitled to recover a sum representing that need by way of damages.  In principle the situation seems quite clear; as far as authorities go, the only obstacle is some dicta by Clarke JA in Treonne Wholesale Meats v Shaheen, which should be regarded overruled by Rosniak v GIO.

If I may take Your Honours to Treonne.  At page 529, Mr Justice Clarke at about line D said:

The award in the present case is sustainable in my opinion because the tort caused both the respondent’s intellectual disability and consequent need for assistance in the management of his affairs.  In other words, the expenditure flowing from the intellectual inability to manage his affairs was a tortiously inflicted loss.  It was for this loss that he was entitled to compensation.  It is only in the measurement of that loss that account is taken of the respondent’s financial position after the case.  This is consistent with the principle that while damages are in theory assessed as at the date of the infliction of the injury account is taken of post accident events in the actual assessment.  This is because the actual post accident history provides a more informed basis for assessment than the speculative guess which is all that could be made on the day of the accident.

But it is quite another thing to include within the compensable loss flowing from the accident the cost of managing a verdict fund where the accident itself has not created the need for that management.  In that case nothing which has happened as a consequence of the accident created a need for fund management.  What causes the need, if there is one, is the acquisition of a fund upon obtaining a verdict.

And that, Your Honours, is the point of principle.

GAUDRON J:   But Justice Meagher, surely, accepts that and he says, in this case, it is the defendant’s tort has generated a reasonable need because she was not fit, she was not a person who was fit, for whatever reason, to manage the fund in consequence of the accident.

MR BARRY:   Except for this, Your Honour, that in all of the other cases the tortious injury involved brain damage or intellectual impairment or it involved injury to a child.  In the case of this respondent, His Honour’s observation was that she was:

not mentally incapacitated (although, equally, she is not a genius) - - -

GAUDRON J:   Yes, but then there may be communication difficulties, for example, that would clearly present difficulties of the same kind as mental incapacity.

MR BARRY:   There was no suggestion that there were any such difficulties.  In any of the evidence in the case was never presented on the basis that she had suffered an impairment in her ability to manage her affairs as a result of the tort.  The case was that she had suffered very significant and catastrophic physical disabilities as a result of the tortious conduct.  Your Honours, our submission is that if the tortious conduct creates an impairment then, in accordance with conventional principles, if a need is thereby created then that need is compensable in terms of an award of damage for a fund to manage it.  But if the plaintiff has not been damaged intellectually, that is, there is no interference in his or her capacity to manage her affairs as a result of the tort, our submission is that that plaintiff is in exactly the same position as someone, for example, who may recover a large award of damages for some other tort other than personal injury.  Defamation obviously springs to mind.  If someone receives a huge verdict as a result of defamation verdict, they may or may not have the ordinary skills to manage the fund but no one would suggest that in those circumstances an amount should be included to cover the cost that will be occasioned to them of managing the verdict moneys when they receive them.

I should say something about Rosniak.  His Honour says that:

Treonne Wholesale Meats v Shaheen, which should be regarded as overruled by Rosniak v GIO -

the only extent to which Treonne was overruled in Rosniak was that in Treonne, Mr Justice Clarke said that some discount should be given from the fund management figure to allow for the fact that a person might normally spend some money, in any event, in the management of their affairs and there should be some discount; in Rosniak, the Court of Appeal said that if the tortious conduct has caused the need, then you fully compensate the need, you do not discount it.  It is only to that extent that Treonne was overruled in Rosniak.

If I could indicate, Your Honours, that the other judgment of the court below is at page 68, which is the judgment of Mr Justice Sheller, and the relevant part

of the judgment of His Honour is at page 68, about line 24, where His Honour said:

Finally I agree with the amount proposed by Meagher JA to enable the cross-appellant to employ the services of a fund manager.  That this is a recoverable head of damages was the opinion expressed by Meagher JA In Government Insurance Office of New South Wales v Rosniak.  Mahoney JA was of opinion that there was no inflexible rule.  At 684-5 he said:

“The matter was considered by Clarke JA in Treonne, in a judgment with which McHugh JA and I agreed:  A plaintiff is to have the losses actually resulting, presently or in the future, from the defendant’s default:  in the relevant sense the plaintiff is to be put in the position in which she would have been had the default not occurred.  Many, if not most, plaintiffs lack the appropriate skill to manage a large award.  But that does not mean that, when the amount awarded is large, the management costs are to be seen as resulting from the defendant’s negligence.  Often, perhaps ordinarily, they will not.  On the other hand, where the defendant’s negligence produces a particular incapacity in the plaintiff such that, because of that capacity, her affairs must be managed for her, that I think will be usually sufficient.”

I can indicate to Your Honours that Mr Justice Priestley, at page 44, line 15, said:

Having had the benefit of reading the reasons in draft of Meagher JA and Sheller JA, I see no need to do more than say that, subject to-

some observations, that he agreed with them.  Your Honours, that is the additional point in relation to Gardikiotis.

MASON CJ:   Thank you, Mr Barry.  Mr Morrison.

MR MORRISON:   Your Honours, first of all, in relation to the Marsland issues, we say that the changes which have been made by the New South Wales legislature are retrospective in effect and that apart from a relatively small group of cases with a not very substantial sum of money in terms of the sorts of amount which come before this court being involved, there is otherwise no issue of general importance raised by the appeal.  The suggestion that the Workers Compensation provisions are significantly affected by the outcome of this, we say, is incorrect because one of th e features of the Workers Compensation provision in regard to the statutory limit is that the statutory limit is fixed in the Workers Compensation Act in New South Wales as at the date when the tort was committed, whereas, under the Motor Accident Act it is fixed as at the date of judgment and that makes a very substantial difference to the way in which any approach to interest has to be taken in actions at common law but brought within the provisions of the Workers Compensation Act.

GAUDRON J:   Is not the distinction you make one that tends against you in this case

MR MORRISON:   No, Your Honour, for this reason:  what was never argued in the Court of Appeal was this.  Indexation did not commence when this case occurred.  This case occurred just after the beginning of the Motor Accident Act on 1 July 1987.  Indexation was delayed until 1 October 1990, so that there was for the great bulk of the time before judgment no indexation.

Now, that might not be a situation which would apply to other cases or would have applied to other cases if the legislature had not intervened to remove the right to interest altogether.  But the fact of the matter is that in this case the Court of Appeal was entitled to say, “What possible application can Gogic have to a case where indexation was delayed until the case was almost at judgment stage?”  It was not suggested in the Court of Appeal that there should be some partial application of Gogic or that Gogic should commence from 1 October 1990.  That submission was never put.  What was sought was 4 per cent reduced to 2 per cent in respect of Gogic for the whole period regardless of the fact that there was no CPI increase for the great bulk of the period - - -

McHUGH J:   Is that relevant, because you get damages for the future?  So, why does not Gogic apply?

MR MORRISON:   That is a slightly different point, Your Honour.

McHUGH J:   I know it is a slightly different point but it seems to me to be the fundamental point. 

MR MORRISON:   The rationale behind Gogic, we would say, was that there is in effect judicial inflation in verdicts over time.  There was none; could be none because between 1 July 1987 and 1 October 1990 the statutory limit remained fixed.  So that the rationale for the application of Gogic simply did not have a base in this case.  The second point that Your Honour makes is a different matter and that is in relation to the question of whether you should get interest on the whole of the sum or on part of the sum.  That is not a Gogic issue, with respect.  That is a question of the way in which one treats the sum.

What the Court of Appeal did in this case was to say, “It is a fixed statutory sum created without reference to the amount which would have been allowed at common law and on the basis of the authorities to which we have referred, there is an appropriate and proper basis for saying that in law the plaintiff was entitled to that statutory sum as at the date when the tort was committed, because it is not general damages and because the sum for general damages would inevitably have been significantly larger, given the facts of that case or, indeed, of probably any case.  For that reason, it was appropriate to treat it in a different way from the way one would treat general damages, given the statutory definition, given the restrictions on the recovery, given the scheme of the statute.” So, that was the way the Court of Appeal treated it and, with respect, we would say that that simply was right and was open to them.

But in any event, let us even, for the moment, suppose that was wrong, the right to interest has been retrospectively swept away.  There is a handful of cases involving relatively small sums of money for that closed period when that right was open.  The basis, therefore, we say, for treating this as a matter of general importance has gone since the New South Wales legislature chose to intervene.

The question of past gratuitous services, Your Honours, we say, is to be dealt with a little differently.

MASON CJ:   We need not trouble you on this, Mr Morrison.

MR MORRISON:   Thank you, Your Honours.

MASON CJ:   You have got the other point to deal with.

McHUGH J:   The fund point.

MR MORRISON:   I am sorry, Your Honours, the fund management point.  The question of fund management, we say, was dealt with on the special leave application from this Court in Newman v Nugent last year, in August last year.  All that has happened since August last year is that New South Wales has fallen into line with the other States so that there is, on the fund management point, simply a situation where this Court, on the facts, decided in this case that this plaintiff had a need to have her fund managed.

McHUGH J:   Newman v Nugent has nothing to do with this point, has it?

MR MORRISON:   No, it has not, I am sorry, Your Honour, I was thinking back to the gratuitous care issue.  What happened in this case was that the issue of impairment was dealt with by the court in the way which is set out in our submissions and the question of communication was addressed by the court because there was a finding that she could do virtually nothing without assistance.  That is in the application book, 13, at 19 to 24; that her ability to write was impaired.  That is at 4, 18 to 23; that she suffers ongoing pain; that she is, effectively, in the position of a partial quadriplegic.

Now, in those circumstances why was not the court entitled to find that she needed assistance?  Her background level of skill was that of having been employed as a postal worker.  She was to be expected to manage a fund of $2 million to produce a return after inflation and after taxation of 5 per cent.

McHUGH J:   This may not be a suitable vehicle but that is not the ratio of the case, is it?  The ratio of the case is that she was hardly fit to invest such a fund without outside advice.  Where is the causal link between the defendant’s negligence and this head of damage?  If somebody wants to invest the money, it is a voluntary act by that particular person for which the defendant cannot be held responsible, can it?

MR MORRISON:   At the end of the day the question has to come back to whether or not the discount rate which has been fixed takes into account what was referred to in Barrell and Todorovic as those costs involved in obtaining the return necessary to meet the discount rate.  Now, the discount rate which the Parliament imposed was a higher discount rate than the Court thought appropriate in Todorovic, that is, at 5 per cent.  We would submit that on a proper reading of what was said in Todorovic it is not clear that fund management was taken into account in the fixing of the discount rate at 3 per cent there.

McHUGH J:   But why should it be?  I mean, if one plaintiff wants to put the verdict moneys in a block of flats, do they get this amount for the fund.  But somebody who says, “I’ll give my money to some fund to manage” can require the defendant to pay for the costs of the fund?

MR MORRISON:   Taking Your Honour’s example: this lady ‑ we will deal with this lady in particular - would not be going round collecting the rent from the block of flats.  This lady would not be managing the accounts.

McHUGH J:   That is because of the facts of the particular case that she cannot communicate, but I am talking about this question of outside advice.  Supposing Mr Carson had said, “Look, I’ve got $600,000.  I’m a solicitor, I don’t know what to do with this defamation verdict.”  Would he be entitled to get the costs of expert advice of how he is going to invest his $600,000?

MR MORRISON:   Your Honour, in the end the question as to whether fund management is needed is a factual issue dependent upon the individual and the facts of the case.  One can envisage situations where there might be an individual who would not need assistance with fund management in dealing with a large sum of money.  One

can envisage other situations where the person would have an incapacity to manage a relatively small sum of money, but what is clear is that there are costs involved.  Now if a discount rate which has been fixed does not take account of those costs - and we submit that if one looks at what was said in the second reading speeches in 1984 and 1988 when the 5 per cent discount rate was initially imposed and reimposed in 1988, there was simply no reference to the question as to what was intended to be included in it.

So one falls back to general principle.  The question then is did Todorovic intend to include the cost of fund management.  We say it did not.  But, in any event, even if it did, that was a case where ultimately the Court came down to 3 per cent.  We have here imposed a higher discount rate of 5 per cent and the one thing that is apparent from any reading of Rosniak is that the debate in that case between the actuaries for the two parties was not whether or not  with proper management advice the fund would last the distance but, rather, how much too early it would run out.  That was the issue.

But in the end we say it was a factual question in this case as to whether there was a need created by the accident.  These are matters of fact for individual cases.  We simply say that this is not a suitable vehicle for the question to be determined, given that this plaintiff had high levels of disability which would have inhibited her in any event in the management of her affairs.

GAUDRON J:   Though the findings with respect to her disabilities do not seem to have been carried over to the judgment as to fund management, do they?

MR MORRISON:   They are not repeated there but they were found elsewhere in the judgment and we provide the reference to them.  They were not specifically referred to, Your Honour is correct, in regard to this aspect but that, indeed, is the very reason why this case is not a suitable vehicle for dealing with this issue.

MASON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I say three things by way of reply.  The first is that the interest provision in the Workers Compensation Act is in the same terms - the first issue to which I adverted arises under that Act as it did under the previous provisions of the Motor Accident Act.   The second thing is this, that in relation to the Workers Compensation Act it is true that the maximum amount of the loss is that fixed at the date of the injury as distinct from the date at which the judgment is given.  That is true in relation to the second point which we advanced.  However, there remains the general proposition about the approach to be taken which is the first point to which we adverted, namely, is the other provisions of subsection (2) substantive or merely a threshold provision.

Your Honours, the third thing is, in relation to the past cases - may I say two things:  it was drawn to my attention whilst my learned friend was addressing that perhaps Your Honours do not have Ms Balla’s affidavit to which I made reference earlier.  Your Honours, in case that is so, may I give Your Honours four copies of the affidavit which sets out the cases that are ‑ ‑ ‑.

MASON CJ:   This is in relation to the outstanding litigation?

MR JACKSON:   Yes, Your Honour.  Now, Your Honours, in relation to the outstanding litigation, a possible view of the affect of the transitional provision in the amendment to the Motor Accident Act is that if the appeal were to succeed, the result might be that the no-interest provision would apply in respect of the judgments given by the Court of Appeal but if the appeals were successful on interest, the one thing that would happen would be that the judgments below would be changed.

GAUDRON J:   What about costs?  What should happen to costs if you were granted special leave?

MR JACKSON:   Your Honour, the Court might or might not impose a condition and if it did, well then, we would no doubt be bound by it.

MASON CJ:   I would not regard that question as one which should excite any optimism on your part, Mr Jackson.

MR JACKSON:   Your Honour, it does not, I hasten to say.  Your Honours, so if the Court were minded to impose a condition there would not be anything further I would wish to say about it.

MASON CJ:   Mr Barry.

MR BARRY:   On the fund management point, can I take Your Honours to the findings by the trial judge who, Your Honours, had the opportunity of seeing and hearing the plaintiff, unlike, with respect to Their Honours in the Court of Appeal, Their Honours did not.  It is at page 25 of the application book.  It starts at about line 25 where the learned trial judge at first instance says this:

The plaintiff is not brain damaged, she is a reasonably well educated girl and in fact a very impressive young lady who will not work and who will have ample time to invest her money and to manage her interests.  There is some evidence she has some difficulty in writing but I cannot see how that is going to affect her management of the funds.  I have considered the case I have been referred to and I have concluded that she does not need any assistance and I am not prepared to allow it.

In our respectful submission, those findings would make this an appropriate vehicle for this point to be tested.

MASON CJ:   The Court will take a short adjournment to consider the course it will take in this matter.

AT 10.32 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.38 AM:

MASON CJ:   There will be a grant of special leave to appeal in each case.  But there will be excluded from the grant of special leave the question relating to interest on damages in respect of the provision of gratuitous services.  It will be a condition of the grant of special leave in each case that the appellant pays the costs of the respondent in any event and that the appellant does not seek to disturb the orders for costs made in the courts below.

AT 10.39 AM THE MATTER WAS ADJOURNED SINE DIE