Dighton v The Nominal Defendant (No 3)

[2012] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

DIGHTON v THE NOMINAL DEFENDANT (No 3)

[2012] SADC 15

Judgment of His Honour Judge Tilmouth

22 February 2012

PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - CORRECTION UNDER SLIP RULE

Held:  Judgment varied to amend original amount of interest under the 'slip' rule.

Wheeler v Page and Harris (1982) 31 SASR 1; District Court (Civil) Rules 2006 6R 242(2)(a), referred to.

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS

Held:  The plaintiff is precluded from arguing at a very late stage in the proceedings for a reduction of interest on past economic loss.

The Commonwealth of Australia v Amann Aviation (1991) 147 CLR 64, referred to.
Henderson v Henderson (1843) 67 ER 313; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, applied.

DIGHTON v THE NOMINAL DEFENDANT (No 3)
[2012] SADC 15

The issues

1. On 8 December 2011 the court delivered reasons in which primary findings of fact were made in relation to liability and quantum in this action for damages for personal injury resulting from a motor vehicle accident.[1]  The court gave liberty to the parties to further address several issues before final judgment was entered.  This they did by way of written and then oral submissions taken on 20 December 2011.

   [1]    Dighton v The Nominal Defendant [2011] SADC 187

2. On 23 December 2011 the court delivered a second set of reasons in which the claim for damages was assessed in monetary terms.[2]  The court once again gave liberty for the parties to speak to the precise calculations.  The outstanding issue of costs was also reserved.  This judgment deals with one residual issue in relation to damages in order to allow final judgment to be entered.  The question of costs will be dealt with later.

   [2]    Dighton v The Nominal Defendant No 2 [2012] SADC 1

   Interest on past economic loss

3. The outstanding issue concerns an amount of interest in respect of past economic loss.  In the principal judgment the court observed that the plaintiff appeared entitled to interest based on the Wheeler v Page and Harris[3] principle.  It was later determined that the appropriate interest rate was one of 6 per cent.[4]  The calculated amount at 6 per cent over the period of time involved was reduced by half on account of the fact that the relevant loss was progressive rather than instantaneous, and then rounded to $18,000 by way of a lump sum.

   [3] (1982) 31 SASR 1, [2011] SADC 187 at [140]

   [4]    Dighton v The Nominal Defendant No 2 [2012] SADC 1 at [7]

4. The plaintiff originally sought an award of $40,645.80 based on an interest rate of 6.5 per cent, to the date of commencement of the trial on 16 May 2011.[5]  However I did not appreciate that this figure was already halved, so that in effect in the reasons for judgment of 23 December 2011 this component of the damages claim was divided by four as an oversight.  It was not disputed by the defendant that this is in fact what occurred or that the court intended to award interest at 6 per cent in a lump sum.  There was accordingly no opposition to substituting the sum of $36,000 for that of $18,000 allocated to interest on past loss of earnings, in keeping with the intention expressed in the judgment of 23 December.

   [5]    Plaintiff’s Calculations on Final Judgment to be entered 12 November 2011, Para 9

5. Being satisfied therefore that the justice of the case so requires, there will be an order pursuant to 6R 242(2)(a) of the District Court (Civil) Rules 2006 varying the judgment delivered on 23 December 2011,[6] by deleting the sum of $18,000 against the component for interest on past loss of earnings in paragraph [22] and inserting in lieu thereof the sum of $36,000, and by altering the sum entered by way of final judgment in paragraph [23] from $517,081.84 to $535,081.84.

   [6]    Dighton v The Nominal Defendant (No 2) [2012] SADC 1

   Reduction of interest?

6. Mr James submitted for the first time on 8 February 2012, that the interest award just made should be reduced to allow for the fact that the plaintiff had the use of monies attributable to lost earnings by way of the WorkCover redemption payment of 23 October 2007.  It is accepted that the sum of $184,500 was allocated to ‘weekly payments of income maintenance’.

7. No prior consideration was given to the issue at any time earlier, because it was not raised.  The WorkCover redemption agreement itself Exhibit D18, does not purport to allocate payments for income maintenance as between the past and the future.  There was no evidence before the court explaining how this agreement was reached or as to any calculations or negotiations as to the past and future components, if any.  All that can be said with any confidence is that the $184,500 covers the pre-agreement loss of income from the date of the subject accident on 13 August 2004 to 20 September 2007 (say three years) and thereafter for the remainder of the plaintiff’s working life.  As he was born in October 1969, he was therefore 38 at the time of redemption.  This leaves 27 years to retirement at aged 65.

8. The defendant proposes an arbitrary calculation which purports to attribute $100,000 of the redemption payment to income maintenance for the past, for which there is simply no basis.

   Reduction of interest - consideration

9. These facts give rise to two considerations.  Firstly should the defendant be entitled to maintain the point at such a late stage in the proceedings?  The trial concluded in early June 2011 and occupied 13 sitting days.  Proceedings were adjourned to 26 August 2011 when closing submissions were made.  In the meantime both parties filed substantial written submissions on all issues.  Further submissions in both oral and written format were received and spoken to on 20 and 23 December 2011.  On none of these occasions did Mr James take the opportunity to raise the issue now under discussion.  As mentioned he first did so on 8 February 2012, without prior notice to the plaintiff.

10. When the hearing resumed on 14 February 2012, Mr Roberts strongly objected on the basis that it was too late to agitate the question.  He further maintained that if the issue had been duly raised in a timely fashion, the plaintiff could have considered calling evidence with a view to identifying how the redemption agreement was made up with respect to income maintenance.  The fact remains that there must have been negotiations leading up to the payment, so the plaintiff has been deprived of the opportunity of considering his position and calling evidence on the topic if he wanted to.  In the written submission filed by the defendant on 13 February 2012, the point is acknowledged that these negotiations were ‘within the plaintiff’s knowledge (and not the defendant’s) to lead alternative evidence if he wished to’.  This rather serves to demonstrate the point the plaintiff makes.

11. In the combined situation it is far too late for the issue to be raised now because of the need to put an end to this litigation and because of the potential prejudice it will cause the plaintiff.  To allow this course now would compromise procedural fairness (6R 10(2)(b)), interrupt the course of the trial (6R 113(2)(d)) as well as the expeditious and economical conduct of the trial (6R116(1)(b)). Accordingly I rule against the defendant on the issue of the reduction of the interest award on past earnings loss on the basis that it could and should have been agitated earlier in the litigation and that it will be productive of further delay in order to permit the plaintiff to consider his position and to call evidence should he be so advised: Henderson v Henderson,[7] Port of Melbourne Authority v Anshun Pty Ltd.[8]

    [7] (1843) 67 ER 313 at 319

    [8] (1981) 147 CLR 589 at 598-599

12. Even if it was appropriate to permit the defence to maintain this point at such a late stage, as a second consideration I would refuse to make an order reducing the interest component on discretionary grounds.  This comes about because of the impossibility of calculating an appropriate amount and because of the paucity of the evidence on the topic, despite the fact that the court is required to do the best it can on the evidence such as it is.[9]

    [9]    The Commonwealth of Australia v Amann Aviation, (1991) 174 CLR 64 at 83

13. I have reached this conclusion for the following reasons:

    ·There is no sufficient basis upon which to allocate any particular sum to the loss of past income;

    ·No attempt is made by the defendant to calculate actual past economic loss;

    ·No reduction is made to reflect the fact that income maintenance is paid on a reducing scale;

    ·Being an accelerated benefit, no consideration is given to the likelihood of the redemption being calculated on present day value at the time of the agreement;

    ·It is not proved when the payment was actually received by the plaintiff;

    ·The likely reduction would be trivial in the context of the award already made, given that the period of past loss is some three years as against 27 years for the future.

    Orders

14. The terms of judgment delivered by the court on 23 December 2011 are varied pursuant to 6R 242(2)(a) of the District Court (Civil) Rules 2006, by deleting the sum of $18,000 against the component for interest on past loss of earnings in paragraph [22] and inserting in lieu thereof the sum of $36,000 and by altering the sum entered by way of final judgment in paragraph [23] thereof from $517,081.84 to $535,081.84.  The contention that the interest so allowed should be reduced is refused.