Duane John Hayes an Infant by His Next Friend Colleen Joyce Greenshields v Carol Braggins (No. 2) No. SCGRG 86/1766 Judgment No. 4493 Number of Pages 4 Damages Interest

[1994] SASC 4493

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA ANDERSON J

CWDS
Damages - interest - Past-gratuitous assistance not to attract interest. Bruno v Davies 144 LSJS 226, applied. Masinovic v Motor Vehicle Insurance Trust (1986) 42 SASR 161, distinguished.

HRNG ADELAIDE, 22 March 1994 #DATE 8:4:1994

Counsel for plaintiff:     Mr M A Frayne

Solicitors for plaintiff: Andersons Barker Gosling

Counsel for defendant:     Mr D C Lovell

Solicitors for defendant: Phillips Fox

ORDER
Damages calculated.

JUDGE1 ANDERSON J Reasons for the assessment of damages herein were delivered on 25 February, 1994. Further submissions relating to interest and administration expenses were heard on 22 March, 1994. It is necessary for a protection order to be made.

2. The only contentious issue related to whether interest should be paid on that portion of the assessed damages relating to past-gratuitous assistance. Mr Frayne also sought to have part of the principal sum and the sum for past-gratuitous assistance, at least, paid by the defendant directly to the plaintiffs rather than have it paid to the Public Trustee, attract a capital commission, and then be immediately paid out.

3. In support of his submission that the first plaintiff is entitled to have interest awarded on the sum assessed for past gratuitous assistance he relied upon the Full Court decision in Masinovic v Motor Vehicle Insurance Trust
(1986) 42 SASR 161. In that case the Court, by majority, allowed interest upon such an award. White J dissented and relied upon his reasons for so doing in Bruno v Davies 144 LSJS 226 when he distinguished the former case on the facts of the latter.

4. Two of the bases upon which he distinguished Bruno v Davies from Masinovic apply to the facts of this case and Mr Lovell urged that I adopt a like course. Mr Frayne submitted that I was bound to follow the majority of the Full Court in Masinovic and, by implication, there existed no basis upon which this case might be distinguished from that.

5. What have now been several first instance decisions since Masinovic have been divided as to whether to follow it. The matter will obviously need the attention of the Full Court again in the foreseeable future.

6. Upon the facts of this case I decline to do as sought for by Mr Frayne. I too distinguish Masinovic upon the facts and respectfully adopt the approach of White J in Bruno v Davies. Firstly, here no money was paid by the mother of the first plaintiff for his care when he was at home with her as occurred in Masinovic. Secondly, there is no evidence that Mrs Greenshields, because of the need for her to care for her son, has forgone the opportunity to work and so earn as was established by the evidence in Masinovic. Thus, I hold that the first plaintiff is not entitled to an award for interest in relation to past gratuitous assistance.

7. Following from this is the question of the rate of interest applicable to past economic loss. Mr Frayne suggested 10% taking into account the under and overs. Mr Lovell, in the circumstances where interest for past gratuitous assistance has been disallowed submitted that as it is effectively calculated from January 1989 it should, in accordance with the schedule tendered as P51 by Mr Frayne, be a lesser sum. A perusal of that table shows interest rates almost equally over and under 10 per cent for the total number of quarters noted from January 1989 until the present. I apply a rate of about 10 per cent and fix interest on past economic loss at $11,750.

8. Interest on past non-economic loss is to be allowed at 4 per cent for the period since 4 February, 1982 and is fixed at $9,154.00.

9. Thus, the total interest to be allowed in relation to the assessed sum is $20,904.00.

10. The second plaintiff is to have interest at 10 per cent for the sum for which she is to have judgement, for the period from December 1987 as the earlier order of Perry J compensated loss to that point. I allow a lump sum of $2,800.00 in this regard.

11. As I have mentioned, Mr Frayne sought to have portion of the judgment sum not paid to Public Trustee so as to not attract capital commission as it was intended to be immediately disbursed to enable the first plaintiff to purchase and furnish a house, to have a holiday and to purchase a car. For a similar reason he sought to have the past-gratuitous assistance awarded paid directly to Mrs Greenshields.

12. I indicated during submissions that I was not of a mind to direct payment by the defendant to other than a secure source. Mr Ades of the Public Trustee's office was present at my request and suggested the course which I now adopt and which is to be reflected in the Minutes. I order that of the judgment sum to be paid to Public Trustee the sums of $116,691.00 and $61,614.00 not attract capital commission in the expectation that they will be paid out as set out above.

13. Thus, the management fee payable to the Public Trustee is to be calculated omitting the aggregate of these sum from that calculation.

14. There must be included in the judgment sum the management fee charged by the Public Trustee upon the sum awarded by Perry J in 1988. It is agreed that that sum is $1,766.93.

15. The final calculation of damages is thus:
    For first plaintiff: As assessed $932,114.00
    Interest $20,964.00
    Past management fee $1,766.93 $954,784.93
    Less agreed contribution of 30% $668,349.45
    From this sum is to be deducted the sum for which I have
    directed the Public Trustee not claim a management fee,
    namely: $116,691.00 $ 61,614.00 $178,305.00

16. Hence $490,044.45 is the sum to which the Public Trustee fee is to be applied. I do not have sufficient information to make this calculation and leave it to be agreed between the parties as an inclusion in the judgment sum when the Minutes are brought in. Those Minutes are to contain the usual provisions relating to a protection order in addition to the orders which now flow from these reasons.

17. I shall hear counsel as to the question of costs.