Dann v Port Sorell Bowls Club Inc (No 2)
[2020] TASSC 53
•2 October 2020
COURT: SUPREME COURT OF TASMANIA
CITATION: Dann v Port Sorell Bowls Club Inc (No 2) TASSC 53
PARTIES: DANN, Kraig Anthony
v
PORT SORELL BOWLS CLUB INC
FILE NO: 783/2016
DELIVERED ON: 2 October 2020
DELIVERED AT: Hobart
HEARING DATE/S: 15 September 2020
JUDGMENT OF: Wood J
CATCHWORDS:
Interest – Recoverability of interest – Award of interest as damages – Elsewhere – Tasmania – Pre-judgment interest – Provision may operate retrospectively – General principles – Discretionary factors – Interest for period before the section commenced disallowed – Offers of compromise not taken into account – Award of interest separate from judgment sum.
Supreme Court Civil Procedure Act1932 (Tas), s 35A
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; Grincelis v House (2000) HCA 42, 201 CLR 321; Ruby v Marsh (1975) 132 CLR 642; Simonius Vischer & Co v Holt [1979] 2 NSWLR 322; Andjelic v Marsland (1995) 186 CLR 20, considered.
Aust Dig Interest [18]
Interest – Rate of interest and compound interest – Rate in cases of injury of death – Heads of damages that may attract interest – Interest rate for past-economic loss – Award should reflect losses incurred gradually – Calculation of interest on general damages.
Supreme Court Rules 2000 (Tas), r 5A.
Cullen v Trappell (1980) 146 CLR 1; MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, considered.
Aust Dig Interest [22]
REPRESENTATION:
Counsel:
Plaintiff: Peter Griffits
Defendant: Tom Cox
Solicitors:
Plaintiff: Griffits & Griffits
Defendant: Barry Nilsson Lawyers
Judgment Number: [2020] TASSC 53
Number of paragraphs: 62
Serial No 53/2020
File No 783/2016
KRAIG ANTHONY DANN v PORT SORELL BOWLS CLUB INC (NO 2)
REASONS FOR JUDGMENT WOOD J
2 October 2020
The plaintiff has recovered damages for personal injuries sustained as a result of an incident at a bowls club when he was helping as a volunteer and operating a barbeque at a function. His injury occurred on 17 November 2015. There was a finding for the plaintiff and damages were assessed in the sum of $1,074,880. The court's determination on liability and damages was handed down on 28 August 2020 (Dann v Port Sorell Bowls Club Inc [2020] TASSC 47). The plaintiff seeks an order for interest on the judgment amount from the day on which the cause of action arose until the day judgment is entered. Written submissions have been provided by the parties in relation to the question of whether an order for interest should be made, discretionary considerations bearing on the amount of the interest and further written submissions provided on whether the judgment sum should include the amount for interest, and whether the Court may have regard to offers of compromise in determining an award for pre-judgment interest. It is the agreed position that judgment should not be entered on the personal injuries claim until the Court's determination on the question of interest.
The power for the Court to make an order for pre-judgment interest is to be found in s 35A of the Supreme Court Civil Procedure Act 1932. The relevant parts of s 35A provide:
"(1) Unless otherwise agreed by the parties or provided for under section 34 or 35 , the court or a judge, when making a judgment requiring the payment of an amount of money, may order that the amount, or part of the amount, carries interest at rate not exceeding the prescribed rate for the whole or any part of the period commencing on the day after the day on which the cause of action arose and ending on the day on which the judgment is entered.
…
(3) For the purposes of subsection (1) , the prescribed rate is the rate per centum per annum that is from time to time specified in the Rules of Court."
The Supreme Court Rules 2000, r 5A, provides that for the purpose of this section, the prescribed rate of interest that is not to be exceeded under that section for a calendar year, or for part of a calendar year, is a rate equal to 4% plus the most recent cash rate published by the Reserve Bank of Australia as provided in r 5A(2)(a) and (b). The most recent cash rate is .25%. This is reflected in the most recent circular to practitioners (No 7 of 2020) which provides that the prescribed rate of interest for pre-judgment interest pursuant to r 5A(2A) for the period commencing 1 July 2020 and ending 31 December 2020 is a maximum of 4.25%.
Section 35A commenced on 9 September 2019. This section made provision for the award of pre-judgment interest which did not earlier exist in Tasmania in relation to a cause of action with respect to personal injuries. Section 35A provided that the Court may allow interest in the amount recovered in an action for a debt or sum certain. Section 35 provides for the inclusion of interest in judgments in actions for conversion or trespass concerning goods, and on insurance policies. There are as yet, no cases that have considered the application of s 35A. Similar provisions have been in effect in other jurisdictions for some time, and cases from these jurisdictions have been of assistance in the interpretation of the Tasmanian provision and the consideration of the arguments in this case.
General principles
Section 35A gives the Court a discretion when making a judgment to make an order that the amount to be paid, or part of the amount, is to carry interest, at a rate the Court determines, not exceeding the prescribed rate, for the whole or any part of the period between the day after the day on which the cause of action arose and the day judgment is entered.
The discretion to award interest is described by Bernard Cairns, author of Australian Civil Procedure (11th ed, 2016) at 687, as "widely expressed; it is designed to assist the court to do more complete justice between the parties."
The purpose of an award of interest is to compensate a plaintiff for being kept out of moneys that, in law belong to that person: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657: Grincelis v House (2000) HCA 42, 201 CLR 321 at [29]. In Ruby v Marsh (1975) 132 CLR 642, Barwick CJ at 652 and 653 stated:
"The purpose of giving courts the power to award interest on damages is to my mind twofold, and neither aspect of the purpose should be lost sight of. In the first place, the successful plaintiff, who by the verdict has been turned into an investor by the award of a capital sum, and whose claim in the writ has been justified to the extent of the verdict returned, ought in justice to be placed in the position in which he would have been had the amount of the verdict been paid to him at the date of the commencement of the action. In the second place, the power to award interest on the verdict from the date of the writ is to provide a discouragement to defendants, who in the greater number of actions for damages for personal injuries are insured, from delaying settlement of the claim or an early conclusion of proceedings so as to have over a longer period of time the profitable use of the money which ultimately the defendant agrees or is called upon by judgment to pay."
It may be that in personal injury cases, the compensatory purpose is more evident or has more significance than the purpose of encouraging early resolution of litigation: Grincelis v House at [16].
The exercise of the judicial discretion conferred by the section must be controlled by the due and proper consideration of all relevant circumstances: Pheeney v Doolan [1977] 1 NSWLR 601 per Reynolds JA at 613-614.
Where the legislature confers a discretion, it confers a burden on the court to ensure that the legislation operates fairly: Simonius Vischer & Co v Holt [1979] 2 NSWLR 322. In that case, the court was concerned with a similar section, s 94 of the Supreme Court Act 1970, which provided the court with a discretion to award interest in unfettered terms. Moffitt P at 338 referred to the views expressed in two decisions of the New South Wales Court of Appeal, and discussed the court's discretion. Drawing on that discussion the following principles are identified:
·The discretion is to be exercised in each case having regard to what is fair between the parties.
·It is preferable that the discretion is exercised with a degree of consistency.
·The basic consideration is that money has been outstanding for a period, so that one side has had the benefit of it, and the other has not.
·The discretion is not one to be exercised punitively, eg to punish delay or failure to observe court procedures. However, it may be that there are cases where it would not be proper for the court to have regard to reasons for the lapse of time from the cause of action to judgment.
Informing the Court's approach to calculations of interest is that the object of interest is to restore the plaintiff – so far as money is able – to the situation in which he or she would have been but for the defendant's legal wrong: Grincelis v House at [29]. The award of interest of damages for personal injury should do no more than assist in the restoration of a plaintiff: Haines v Bendall (1991) 172 CLR 60 at 67. Consequently, the courts are concerned not to adopt an approach that over-compensates a plaintiff.
Does s 35A operate retrospectively?
The plaintiff's accident occurred on 17 November 2015. A question arises as to whether s 35A applies to allow the payment of interest for the period between the time when the cause of action arose and the time when the section commenced. It might be thought that s 35A would not operate so as to allow for interest with respect to a period before the section came into effect. The presumption against retrospectivity would require "reasonable certainty" that a statute changing the law has application to facts or events that have already occurred in such a way as to affect rights or obligations: Maxwell v Murphy (1957) 96 CLR 261 per Dixon CJ at 267; Rodway v The Queen (1990) 169 CLR 515 at 518.
In Andjelic v Marsland (1995) 186 CLR 20, consideration was given to the retrospectivity of the power to award interest in s 73 of the Motor Accidents Act 1988 (NSW). It was said that the section was expressed in terms wide enough to allow the payment of interest for any period after the cause of action arises. It was said that the expression of the power is broad enough to show with "reasonable certainty" that the power to award interest was intended to be retrospective.
Of course, the construction of s 35A and whether it is retrospective turns on its terms. Here, the power to award interest on damages for causes of action relates to the period "the day after the day on which the cause of action arose and ending on the day on which the judgment is entered." Section 35A expressly provides for interest relating to this period. It appears with "reasonable certainty" that a retrospective power was intended. It then becomes, as it did in Andjelic, a question of discretion as to whether or not the power should be exercised.
Discretionary considerations
As outlined above, the discretion is to be exercised in each case having regard to what is fair between the parties. Largely, the arguments were directed at the period of interest, and whether as a matter of fairness interest should not be awarded with respect to the period before the commencement of s 35A. There was though a narrow argument for the defendant, although not strenuously pressed, that there should no award.
Late notice of claim
It was pointed out by the defendant that a claim for interest was not made until the closing stages of the trial. It was submitted that the late notice of the claim for interest is a discretionary factor that would weigh against making an award.
The first point to make is that the terms of s 35A do not curtail the Court's discretion by imposing a pre-requisite that a claim must first be made. The entitlement to interest is triggered by the "making of a judgment requiring the payment of an amount of money".
There is authority from other jurisdictions that a claim for interest should be pleaded and if it is not pleaded that it is a factor that bears on the exercise of discretion: Simonius at 338. That was not argued in this case and I have not been taken to any rule that requires that a claim for this form of "relief" be pleaded. It is important to be mindful that we should not transplant the practice of other jurisdictions which have grown up around specific statutory provisions and rules of court that may not mirror the Tasmanian legal landscape.
Of course, it is appropriate and desirable that the defendant have notice of a claim. The reasons for this arise from considerations of fairness to the defendant. Justice requires that the defendant be made aware that interest is being claimed and of the nature of the claim in order to have a proper opportunity to answer it: Pheeney v Doolan at 606.
While notice may be good practice and desirable, I wish to make it clear that I am not lending support to a position that a claim is necessary or that it should be pleaded in the ordinary course. I leave these questions undecided.
The concession was made by the defendant during submissions that late notice of the claim was not a significant factor given the circumstances of this case. It is noted that s 35A commenced in September 2019 and a claim for interest was made at the trial in December 2019.
I do not regard the "late" notice as a factor that in this case would weigh against the discretion to award interest in the circumstances of this case. Indeed, the notice, in my view, was sufficient, particularly given the novel nature of pre-judgment interest in Tasmania and that the defendant has been afforded plenty of opportunity to respond to the claim.
Should interest be computed for a period before the commencement of s 35A?
The defendant contends that in exercising its discretion, the Court should regard it as unfair to apply the operation of s 35A to a time before it commenced. It can be seen that the section allows for an order to be made with respect to "part of the period" since the day after the cause of action arose.
The simple point must be acknowledged that, but for the new section, no award for pre-judgment interest could be made. Similarly, if the litigation had resolved before the commencement of s 35A, no award could have been made. The question is, how should that arbitrary happening of the commencement of the section affect the parties?
In Simonius Vischer (above), the Court of Appeal of New South Wales considered a situation such as this where there was a proceeding current after the Act commenced but the cause of action commenced before the commencement of the Act. Thus, there was a period prior to, and a period after, the commencement of the Act. The judgment of Moffitt P referred to that scenario and went on to state at 337:
"The legislature left it to the court, in the exercise of a discretion, to deal with the whole period. However, the substantive nature of an award [of interest], and ordinary principles of fairness, make it difficult to contemplate that the discretion would ever be exercised in respect of the period prior to the commencement of the Act. No such award should be made in the present case."
The argument for the plaintiff is that in this case, the judgment sum should carry interest from the time the cause of action arose. The plaintiff argued that of particular relevance is what action the defendant would have taken if it had been aware from the time when the cause of action arose that interest might be payable. It is submitted that "the acid test of what the defendant would have done lies in the amount of the best offer it made to compromise the action: (i) up to the time when the amendment came into force; (ii) in the two and a half months from then until the start of the trial; from the end of the trial until judgment." The plaintiff submitted that if the defendant made no realistic efforts to compromise within any of those periods, it can hardly amount to unfairness to the defendant to exercise the discretion in favour of the plaintiff. In other words, if the conduct of the defendant shows that the statutory provision would not have made the slightest difference to the progress of the litigation, then unfairness dissipates entirely.
In response to this argument, the defendant argued that the notion of unfairness to the defendant is broader than that suggested by the plaintiff. It is not confined to how the defendant would otherwise have acted. Counsel for the defendant referred to considerations identified by Reynolds JA in Simonius Vischer at 339 and the fact that a defendant or insurer will have ordered their affairs over a long period of years in ignorance of a claim of interest which is likely to be productive of unfairness or detriment and possibly of a kind difficult to precisely pinpoint or demonstrate.
Having regard to this sort of consideration, and that the section adds to the liability of defendants vis-a-vis past cases, I cannot see how a retrospective order fulfils the purpose of s 35A of achieving fairness between the parties in this case.
Offers of compromise
I assume for the purpose of considering the plaintiff's argument that the defendant made no realistic offers of compromise at any stage of the litigation. However, I do not see that this neutralises unfairness of the kind identified in Simonius. If the defendant had known about the risk of an award order for pre-judgment interest, the litigation may have taken a different course at some point after the cause of action commenced, or the defendant may have ordered its affairs differently. It is speculative now to assess how the parties may have approached the litigation if s 35A had been part of the legal context.
While the defendant's attitude to settlement offsets the particular unfairness that another case might have arising from computing interest before the section commenced, it is not a material consideration in favour of retrospectivity. The plaintiff contends that the discretion should be exercised in his favour because of the purpose identified in Ruby v Marsh of providing a discouragement to defendants from delaying an early conclusion of the proceedings. It is to be remembered though, that the purpose of the section is not to identify fault and punish delay. It seems to me that the purpose of discouraging delay is best carried into effect with regard to defendants who are aware of the risk of an award. It is also a disincentive to defendants at large so that other defendants do not allow litigation to drag on unnecessarily. In both respects, the purpose is best fulfilled via defendants who are aware of the risk of an order.
Resolving the period of interest
The fair result seems to be that the plaintiff should have an award of interest calculated from the time when the section commenced.
I conclude that in this case the award of interest should not be made with respect to the period before the section commenced. The plaintiff is entitled to compensation for being kept of out of his money for a period of almost five years. But fairness would dictate, in this case, that the change in the law should not have a retrospective effect. I do not see it as necessary to express a view beyond the facts of this case. There may be cases where a retrospective order is appropriate in order to do justice between the parties. Certainly, Parliament did not see fit to fetter the Court's discretion in relation to the retrospective application of s 35A.
For the reasons I have given, it would not helpful in this case to have regard to offers of compromise that were made. Without expressing a concluded view, I have reservations about whether the Court may have regard to offers in determining a claim for pre-judgment interest. Rule 286(2) prohibits the Court from having regard to any offers "until all questions of liability and the relief to be granted are determined."
My preliminary view is that a discretionary award of pre-judgment interest is "relief" for the purpose of this rule. In Pheeney v Doolan (above), Moffitt P at 605-606 referred to an award of interest under s 94 of the Supreme Court Act (NSW) as relief which is claimed by a plaintiff within the terms of a particular provision of the New South Wales Rules of Court. It seems to me that, given the nature of an award of pre-judgment interest is compensation for the deprivation of the money a plaintiff is lawfully entitled to, it follows that it should be regarded as "relief".
Counsel for the defendant drew to my attention that there was little delay that could be sheeted home to the defendant after the commencement of the section. Indeed the trial concluded approximately three months after the section commenced. I do not regard that piecemeal approach to the timeline of the litigation as being correct. We are concerned with the defendant holding onto money that the plaintiff was entitled to from the time of the commencement of the cause of action. While it would be unfair in my view, in this case, to compute interest from a date before the section commenced, the rationale for the order is the defendant's conduct in holding on to that money for the period from the day after the commencement of the cause of action and the failure to resolve it during that period.
The heads of damages that may attract interest
It is argued for the defendant that only part of the award of damages should attract interest and that it should only be allowed for past loss not future loss of earning capacity or future medical expenses. It was argued for the plaintiff that the whole of the award of damages should attract interest. This was said to be consistent with the purpose of discouraging delay. The argument relied on Ruby v Marsh, and an approach, it was submitted, by the High Court of having regard to what was an appropriate award of interest overall, rather than dissecting an award of damages.
The case of Ruby v Marsh was concerned with a matter of statutory construction of s 79A of the Supreme Court Act 1958 (Vic) and an award of damages under the Wrongs Act 1958 (Vic). The award the subject of appeal was a single sum for damages by way of compensation for the loss sustained by the plaintiff and her infant daughter through the death of her husband. The view of Barwick CJ at 653 and 654 was that a successful plaintiff should have interest on the whole of the damages, otherwise it would do an injustice to the plaintiff and diminish the effect of the provision regarding interest. However, this approach was not the view of the majority: per Gibbs J at 656; per Stephen J at 662 and 663 and Jacobs J at 666. The majority of the judges took the view that in personal injuries cases it was acceptable and proper to break down an award into components for the purpose of making an appropriate allowance of interest. The rationale is that in the case of financial detriment which lies in the future and is yet to be experienced, the plaintiff has not in any real sense been kept out of compensation moneys.
The approach of allowing interest only for past loss is well settled: MBP (SA) Pty Ltd v Gogic (above); Grincelis v House (above); Cullen v Trappell (1980) 146 CLR 1.
Like s 94(1) of the New South Wales legislation, s 35A refers to the Court having power to order that the amount of money, or part of the amount, carries interest, which, as Reynolds JA stated in Pheeney v Doolan at 615, "invites dissection".
I conclude that the Court has power under s 35A to discriminate between components of the award. It is consistent with the purpose of the section of allowing the courts a wide discretion in order to achieve a just outcome.
General damages for pain, suffering and loss of amenities
In Gogic, the court had to decide whether damages for non-economic loss, namely for pain and suffering, should carry interest under s 30C of the Supreme Court Act 1935 (SA) at a commercial rate. A component of commercial interest rates is to compensate an investor for the loss of the value of money because of inflation. The judgment of the Court at 663 pointed out that general damages for pre-trial pain and suffering are assessed in accordance with the value of money as at the time of the award. Any loss which a plaintiff incurs by reason of being deprived of his or her general damages has not been brought about by inflationary factors. The Court canvassed a formula which applied the real rate or rates of interest in the relevant period rather than a fixed figure such as 4%. A formula was considered of adopting the commercial rate or the ten-year bond rate and deducting a figure for inflation. The Court preferred the approach of a figure of 4 per cent. It was acknowledged that it is somewhat arbitrary but it represented the judgment of the Supreme Court of South Australia in Wheeler v Page (1982) 31 SASR 1 as to "what is fair and reasonable compensation for a plaintiff in that State for being deprived of the use of his or her money after taking into account that, from time to time, the real rate of interest will rise above or fall below that figure".
In Gogic, the Court was concerned with pre-trial pain and suffering. By contrast in this case, the Court awarded a single amount for past and future pain and suffering. A just outcome may be achieved by adopting a lower interest rate or awarding interest on part of the total. Approaching the matter in a "broad and practical way", as endorsed by the High Court (Cullen v Trappell (1980) 146 CLR 1 at 22), I will award interest on half of the amount assessed for pain and suffering. A question remains about the rate of interest.
In Tasmania, the maximum figure is 4% plus the Reserve Bank cash rate. I have considered whether I should use that as a starting point and then deduct an amount for inflation. However, as the High Court said in Gogic at 664, whatever interest rate is used to compensate a plaintiff, it can be at best only a rough guide as to the value of the plaintiff's loss during the period when he or she was deprived of the use of his or her money. It strikes me as a flawed approach to bring a precise figure regarding inflation to what can only be and is meant to be a rough measure of loss as a maximum, being 4% plus the cash rate.
Counsel for the defendant argued that the approach that should be taken is that general damages not attract any interest, and this was fair given that the prevailing rate of interest on secure investments is very low. It was noted that a brief review of the major banks offerings for term deposits demonstrates that the rate is well below 1%. However, the High Court in Gogic pointed out at 666 that a plaintiff is awarded interest because he or she has been deprived of the use of his or her money, not because he or she has foregone investment opportunities. The High Court went on to state, relevantly for our purposes: "It would be wrong, for example, to refuse to award a plaintiff interest simply because the real rate of interest during the relevant period was zero or a negative figure."
In this case, assessing what seems to be fair, and taking a pragmatic approach, I select an approach of adopting a 2% figure. I wish only to add that I do not regard this approach of a per cent figure or the figure itself as setting a precedent for other cases. This approach turns on its facts, and the issue is just one of many issues that have arisen in relation to a new statutory provision. Undoubtedly, in the future there will be cases where this issue will be the focus of counsel's attention and by then, the Court will also have the benefit of some contextual jurisprudence on s 35A.
Past economic loss
It was pointed out on behalf of the defendant that at present given the cash rate, 4.25% is the prescribed maximum rate of interest. It was submitted that given the low rates for return on investment prevailing over the last few years, interest should be calculated at a lower rate, say 3%. I note that the official cash rate as determined by the Reserve Bank of Australia can be regarded as accommodating to an extent or making some allowance for this factor of fluctuations in returns on investment loans.
No other reason for departing from the maximum prescribed rate has been advanced. Noting that the section provides for a maximum, and that taking all factors into account this is not, in my view, a case for the maximum, I will allow 3.25%.
The defendant argued that the award for interest needs to reflect the fact that some of the losses have been incurred in the last 12 months and so it would overcompensate the plaintiff if he received interest on all of his past loss for a period of 12 months or approximately 12 months. Counsel for the defendant pointed to a practice in other jurisdictions of making allowance for this factor. Counsel suggested halving the past lost earnings that accumulated in the most recent 12 months. The point is that if the plaintiff is to receive the benefit of interest for a period of approximately 12 months, being the period when s 35A commenced, the award for interest should reflect the fact that a portion of damages for his past wage loss represent amounts that arose gradually over that period. The more usual situation before the courts is that interest is being awarded from the date of the accident to the date of judgment and loss of earnings before judgment occurs gradually over that period. Similarly, in that situation, it would over-compensate a plaintiff to award interest in full from the date of the accident until the date of judgment.
It can be seen that it is the practice of other jurisdictions to make an allowance of this kind such as by halving the appropriate rate of interest: Grincelis v House at [22], or by taking the totality of the loss and applying the appropriate interest rate for one-half of the period of time during which the loss was suffered: Cullen v Trappell (above) at 19 and 22. In the context of this case, the approach of making this sort of allowance seems logical and fair and there is no suggestion by the plaintiff that it is not or that it is contrary to principle. For the purpose of calculating interest and making allowance for this factor, I will adopt the approach suggested by the defendant and halve the plaintiff's past lost earnings that were incurred for the period from 28 August 2019 to 28 August 2020.
Calculations
The defendant accepts for the purpose of calculating interest that past medical expenses of $12,092 were incurred over 12 months ago.
In reasons delivered on 28 August 2020, past wage loss was assessed as the sum of $452,753, calculated to that date. The usual situation will be that judgment will be entered on the same day as the Court's determination regarding assessment of damages. As mentioned, judgment has been deferred to allow submissions and a ruling to be made on interest. Counsel for the defendant provided calculations for past wage loss that brought that sum "up to date" that is, to a date the judgment and the ruling on interest were anticipated. In my view that approach should not be taken. For the purpose of calculating interest the plaintiff is entitled to interest up until today, but only on past wage loss as assessed. It is the relevant portion of the judgment amount which carries interest. Therefore, the Court ought not engage in assessing damages from the date of assessment until today and treat that as past wage loss and include that for the purpose of calculating interest.
However, the matter of interest is a little more complicated than just taking the amount assessed as past loss and then calculating interest until the date of judgment (in this case, today). For the past 12 months until the date of assessment the loss should be halved, as explained above. It is acknowledged that this approach involves elements of approximation.
Having regard to the assessment of past wage loss as set out in the judgment, for the period 23 November 2015 to 27 August 2019, the plaintiff’s past wage loss is $357,697.
From 28 August 2019 to 28 August 2020, his past lost earnings is $95,056 of which half is $47,528.
Together with past medical expenses of $12,092 the total past loss for the purpose of calculating interest is $417,317.
Interest for the period 9 September 2019 to 2 October 2020 on $417,317 at a rate of 3.25% is $14,491.76.
Two percent interest on half of the general damages award of $80,000, for the period 9 September 2019 to 2 October 2020 is $854.79.
The total amount for interest on these assessed amounts is $15,346. The awards for these heads of damages were reduced by 15% for contributory negligence. Accordingly, the award for interest should be $13,044.
Should interest be included in the judgment sum?
The plaintiff contends that an award of interest should not form part of the judgment and should be separate. The plaintiff highlighted that the words of s 35A convey that the judgment amount has already been determined, and that the words "carries interest" are inappropriate to indicate that the interest forms part of the judgment which carries it. It was noted that the language of s 35 is different, referring to damages in the nature of interest which suggests that it will form part of the judgment. The language of s 35A is also different to the way in which the sections in legislation of other jurisdictions are expressed. It was submitted that Parliament could easily have conveyed that interest is to form part of any judgment but it chose to employ different wording and this should be regarded as deliberate.
The defendant's submission relies on the wording that interest may be made "when making a judgment". It was submitted that this is an express statement that the interest component is part of, and not separate from, the pronouncement of judgment. The defendant argued that regardless of which of the two constructions were correct, an order for interest could not be made after judgment. That, in my view, is plainly correct. To make an award for interest after judgment would be inconsistent with the wording of the section and the tense employed in the phrase "when making a judgment". As submitted by the defendant, it also does not sit well with the operation of post judgment interest under s 165. Post-judgment interest runs from the time judgment is delivered: Potts v Frost (No 2) [2012] TASSC 32 per Porter J at [21] and Langmaid v Dobsons Vegetable Machinery Pty Ltd (No 2) [2014] TASSC 55 per Tennent J at [56].
The terms of s 35A are quite different to equivalent provisions in other jurisdictions. For instance, in South Australia, the Supreme Court Act 1935, s 30C, provides that interest is to be included in the judgment. In New South Wales, s 100 of the Civil Procedure Act 2005 provides that "the court may include interest in the amount for which judgment is given."
The correct interpretation of s 35A is plain from the terms of the provision and the natural meaning of the language. The interest allowed is distinct from the judgment amount. The section provides that it may be ordered that the judgment requiring payment of an amount of money may carry interest. Evidently, the amount of money required to be paid is distinct from the interest. The section makes it plain that the time to order interest is when making a judgment, and as I have said, not at some later time. Whether the interest ordered may ultimately be subsumed in the judgment sum that is entered is a different matter and may be open, given the terms of the section.
Order
In conclusion, part of the sum assessed of $1,074,880 as explained above, should carry interest for the period from the commencement of s 35A of the Act until today, being the day on which judgment is entered. When entering judgment for the plaintiff in the sum assessed, an order will be made that interest be paid by the defendant to the plaintiff in the amount of $13,044.
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