Glover v Australian Ultra Concrete Pty Ltd

[2010] NSWSC 1284

CITATION:	Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284
HEARING DATE(S):	22 October 2010
JUDGMENT DATE :	5 November 2010
JUDGMENT OF:	Harrison J
DECISION:	1. Verdict for the plaintiff for $2,252,531.56 made up as follows: (a) Non-economic loss: $107,775. (b) Economic loss (past loss of wages): $904,934 (c) Past domestic assistance: $75,088 (d) Future domestic assistance: $79,633 (e) Past out-of-pocket expenses: $11,850. (f) Future medical and out-of-pocket expenses: $25,000. (g) Loss of superannuation: $178,951.56 (h) Interest: $869,300. 2. Order the defendant to pay the costs of the trial before Newman J, in the Court of Appeal and of the hearing before me. 3. Order the defendant to pay interest on such costs and disbursements incurred and paid by the plaintiff in respect of the trial before Newman J and in the Court of Appeal at such rate as may be determined in accordance with Supreme Court Practice Note SC Gen 16. 4. Direct that the exhibits be returned after 28 days.
CATCHWORDS:	PERSONAL INJURY – industrial accident on 1 May 1994 – plaintiff unsuccessful at first hearing in 2000 - where matter remitted to Common Law Division for re-hearing following plaintiff's successful appeal to Court of Appeal in 2003 – costs of original trial and Court of Appeal to be determined by trial judge on re-hearing – defendant ordered to pay costs of both – where plaintiff claimed interest on past paid costs and disbursements from first hearing and Court of Appeal – defendant ordered to pay such interest – whether plaintiff entitled to damages for loss of superannuation – s 149 Workers Compensation Act 1987 – modified common law damages regime not apply to exclude or limit claim for lost superannuation – delay – where hearing scheduled for February 2007 vacated at request of plaintiff – where defendant not at fault - where plaintiff claimed interest on damages – whether plaintiff entitled to interest for period from commencement of proceedings until judgment following re-hearing in 2010 or lesser period – plaintiff entitled to interest for whole period – principles considered
LEGISLATION CITED:	Civil Procedure Act 2005 Supreme Court Act 1970 Workers Compensation Act 1987
CATEGORY:	Consequential orders
CASES CITED:	Andjelic v Marsland [1996] HCA 55; (1996) 186 CLR 20 Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd [2002] NSWSC 280 Bennett v Jones [1972] 2 NSWLR 355 Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80 Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1006 ICT Pty Limited v Sea Containers Limited [2006] NSWSC 1280 MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642 Seiwa Australia Pty Ltd v Seeto Financial Services Pty Ltd (No 2) [2010] NSWSC 118 Simmons v Colly Cotton Marketing Pty Ltd [2007] NSWSC 1092 Todorovic and Anor v Waller [1981] HCA 72; (1981) 150 CLR 402 Woods v Woods [2001] NSWSC 1108
PARTIES:	David John Glover (Plaintiff) Australian Ultra Concrete Pty Ltd (Defendant)
FILE NUMBER(S):	SC 1995/32519
COUNSEL:	P N Khandhar (Plaintiff) D J Russell SC (Defendant)
SOLICITORS:	Willis Lawyers (Plaintiff) Sparke Helmore (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

5 November 2010

1995/32519 David John Glover v Australian Ultra Concrete Pty Ltd

JUDGMENT

1 HIS HONOUR: On 22 October 2010, in accordance with an invitation that I had earlier extended, I heard further argument on some issues that remained outstanding following the publication of my reasons for judgment in the principal proceedings: see Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1006. This judgment deals with those issues. A familiarity with my original judgment is assumed.

Arithmetical and typographical errors

2 My calculation of Mr Glover's past loss of wages contained an arithmetical error. The correct figure should have been $904,934. There is no dispute concerning this.

3 At [176] of my earlier judgment the date "November 1994" appears. This is incorrect. As the content and conclusions in that paragraph otherwise suggest, that date should have been "March 1998". The wage calculations proceeded upon the basis of the correct date so that they are unaffected by the error.

Loss of superannuation

4 Mr Glover claims loss of superannuation. This is opposed on the basis of a legal argument to which I shall shortly refer. In the event that Mr Glover succeeds on that argument, the parties are agreed that the correct figure for superannuation is $178,951.56.

5 Part 5 of the Workers Compensation Act1987 dealt with "Common Law Remedies". Division 3 of Part 5 dealt with "Modified common law damages". The relevant sections of the Act are as follows:

" 151F General regulation of court awards

A court may not award damages to a person contrary to this Division.

151G Damages for non-economic loss

(1) No damages are to be awarded for non-economic loss unless the injured worker's ability to lead a normal life is significantly impaired by the injury suffered by the worker.

(2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.

(3) The maximum amount which may be awarded for non-economic loss is $204,000, but the maximum amount may be awarded only in a most extreme case.

(4) If the amount of non-economic loss is assessed to be $36,000 or less, no damages for non-economic loss are to be awarded.

(5) …

151H No damages for economic loss unless injury serious

(1) No damages are to be awarded for economic loss unless the injured worker has received a serious injury or dies as a result of the injury.

(2) …

151I Damages for economic loss – loss of past or future earnings etc.

(1) This section applies to an award of damages:


(a) for past economic loss due to loss of earnings; or

(b) for future economic loss due to deprivation or impairment of earning capacity; or

(c) for the loss of expectation of financial; support.


(2) In the case of any such award, the court is to disregard the amount (if any) by which the injured or deceased worker's weekly earnings would (but for the injury or death) have exceeded the maximum amount of weekly payments of compensation under s 35.

(3) …

151J Damages for future economic loss – discount rate

(1) If an award of damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss which is referable to:


(a) deprivation or impairment of earning capacity; or

(b) the value of future services of a domestic nature or services relating to nursing and attendance; or

(c) loss of expectation of financial support; or

(d) a liability to incur expenditure in the future,


the present value of the future economic loss is to be qualified by adopting the prescribed discount rate.

(2) …"

6 The defendant submitted that a potential award for loss of superannuation benefits is an award for past economic loss due to loss of earnings. Mr Glover's superannuation claim is for loss of the compulsory superannuation payable by the defendant as his employer. It is only because Mr Glover has lost wages that he has lost superannuation benefits in this way. Loss of past superannuation is therefore just another species of "past economic loss", and just like the loss of a weekly wage, it is a past economic loss "due to loss of earnings". The defendant submitted that the loss was in the same category as loss of long service leave, holiday pay, sick pay, travelling allowances, medical benefits, salary sacrifice or any other additional payment made over and above a weekly pay packet.

7 I have already found that Mr Glover's damages for past economic loss are limited by operation of s 151I(2). My (revised) calculation of a final sum for loss of weekly wages includes a period from 1 October 1997 when the actual wage, which could have been earned by Mr Glover, was greater than the maximum weekly amount under s 35. Therefore, at least from that date Mr Glover has received the maximum award that he can under the modified common law damages regime, because of the operative effect of s 151I(2). The defendant contended that there was no scope for additional damages to be awarded.

8 Alternatively, the only award that could be made for loss of superannuation benefits would be for the period from 14 November 1994 to 30 September 1997 where Mr Glover's net weekly wage fell below the s 35 maximum amount. That differential would leave room for an award of superannuation during that period.

9 The basis of Mr Glover's response to this argument is to be found in s 149 of the Act. It provided relevantly as follows:

" 149 Definitions

(1) In this Part:

" damages " includes:


(a) any form of monetary compensation, and

(b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),


but does not include:


(c) compensation under this Act, or

(d) additional or alternative compensation to which Division 8 of Part 3 applies, or

(e) an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996 , or

(f) any sum required or authorised to be paid under an award or agreement within the meanung of the Industrial Relations Act 1991; or

(g) any sum payable under a superannuation scheme or any life or other insurance policy, or

(h) any amount paid in respect of costs incurred in connection with legal proceedings, or

(i) damages of a class which is excluded by the regulations from this definition…".

10 The definition of "damages" expressly excludes any sum payable under a superannuation scheme. In other words, superannuation is not expressly contemplated as a head of damage under the legislation. Superannuation has otherwise been conventionally recognised and applied as a head of damage at common law: see, for example, Todorovic and Anor v Waller [1981] HCA 72; (1981) 150 CLR 402. In short, the limitations applying to damages do not apply to those heads of damage that have been specifically excluded. An award of damages in accordance with s 151F is not an award of "any form of monetary compensation" that includes superannuation.

11 The defendant did not make submissions that dealt with Mr Glover's argument based on s 149. That is unsurprising. In my opinion the definition of damages in that section clearly excluded superannuation from the operation of the modified common law damages regime in Division 3. The availability of superannuation as an unmodified head of common law damages remained. Mr Glover is entitled to the agreed sum of $178,951.56 for this head of damage.

Interest on damages

12 Section 100(1) of the Civil Procedure Act2005 provides as follows:

" 100 Interest up to judgment

(1) In proceedings for the recovery of money (including any debt or damages or the value of any goods), the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit:


(a) on the whole or any part of the money, and

(b) for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect."

13 Section 151M of the Workers Compensation Act is also relevant. It provides as follows:

" 151M Payment of interest

(1) Except as provided by this section, a court may not, in relation to an award of damages, order the payment of interest (and no interest is payable) on an amount of damages in respect of the period from the date of the death or injury to the worker to the date of the award.

(2) A court may order the payment of interest:


(a) if the defendant has not taken such steps (if any) as may be reasonable and appropriate to assess the merits of the plaintiff's claim and liability of the defendant in respect of the claim; or

(b) if, where it would be appropriate to do so, the defendant has not made an offer of settlement; or


(c) if:


(i) the defendant has made an offer of settlement; and

(ii) the amount awarded by the court (without the addition of interest) is more than 20 per cent higher than the highest amount offered in settlement by the defendant; and

(iii) the court is satisfied that the highest amount offered by the defendant was not reasonable having regard to the information available to the defendant at the time the offer was made.

(3) Except as provided by this section, nothing in this section affects any other law relating to the payment of interest on an amount of damages."

14 Mr Glover claims interest on his damages. There is no dispute that he is entitled to such interest but the quantum is in issue. This is because there is a dispute about the period over which interest should be calculated. The defendant contends that the interest should be calculated over a period of only 13.5 years. The amount of interest referable to that period is agreed by the parties to be $684,904. Mr Glover, in contrast, contends that the interest should be calculated over a period of only 16.5 years. The amount of interest referable to that period is agreed by the parties to be $869,300.

15 Although the defendant originally contested its liability to pay interest in accordance with s 151M, for reasons that are now unnecessary to relate, it no longer does so. The agreements between the parties make it clear that the defendant accepts both a liability to pay interest and the rate at which it should do so, the defendant contesting only the period over which interest should be calculated. The defendant has accordingly implicitly accepted that I have the power, in the circumstances as they apply to this case, to award such interest in accordance with s 151M(2) of the Act.

16 The difference in the parties' respective approach to the calculation of interest up to judgment arises in the following way. The re-hearing in this matter was listed to commence on 12 February 2007. It did not proceed on that day because Mr Glover successfully applied to vacate the date. In the events that occurred, it was not heard until it came before me on 29 June 2009. The defendant resists Mr Glover's claim for interest from 12 February 2007 upon the basis that it was ready and willing to proceed with the trial on that day as originally scheduled and that through no fault of the defendant the hearing was vacated to suit Mr Glover's convenience or to accommodate the difficulties then confronting him for which the defendant was not responsible. Mr Glover does not contest the proposition that the defendant had nothing to do with the vacation of the hearing.

17 The purpose of the discretion in s 100 is to permit a successful party to be properly compensated for the practical loss it has suffered: Andjelic v Marsland [1996] HCA 55; (1996) 186 CLR 20. In MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 at 663 the High Court said this:

"With great respect to the judgment of Gibbs J. in Cullen v. Trappell, although it is a fallacy to refuse to award any interest on the ground that the verdict contains a built-in inflationary factor, it is equally fallacious to hold that a plaintiff will be properly compensated for the delay in obtaining damages for pre-trial pain and suffering only if the award of damages contains an amount for interest calculated at the commercial rate or rates. The function of an award of interest is to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period: Batchelor v. Burke [1981] HCA 30; (1981) 148 CLR 448, per Gibbs C.J. at p 455. But the loss or detriment which a plaintiff suffers by being kept out of his or her damages for pre-trial pain and suffering cannot be equated with the amount which those damages, invested at the commercial rate of interest, could have earned during the relevant pre-trial period. The determinants of rates of interest have been the subject of much dispute among economists. But it cannot be denied that during periods of significant inflation, such as those which have existed in Australia during the last 25 years, commercial rates of interest reflect a component to compensate a lender for the decline, by reason of inflation, in the real value of the principal which occurs during the period of the loan: see the comments, for example, in Hawkins v. Lindsley (1974) 49 ALJR 5, at pp 6-7; 4 ALR 697, at p 699; Sharman v. Evans [1977] HCA 8; (1977) 138 CLR 563, at p 588; Todorovic v. Waller, at pp 429, 448. Damages for pre-trial non-economic loss, however, are assessed in accordance with the value of money as at the time of the award. In no way is any loss which a plaintiff incurs by reason of being deprived of his or her damages for pre-trial non-economic loss brought about by inflationary factors. In those circumstances, to award interest on damages for non-economic loss during the pre-trial period by reference to commercial rates is to compensate the plaintiff for a "loss" which he or she has not sustained."

18 I note that I have not been asked to distinguish, and will assume that the parties themselves have distinguished, between elements of economic and non-economic loss within the damages awarded upon which their respective agreed interest sums have been calculated.

19 Successful plaintiffs who obtain a money judgment will generally be entitled to an award of interest: Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642 at 644. Because the award of interest is essentially compensatory, the defendant's conduct in defending the proceedings (whether or not reasonable and diligent), does not ordinarily provide a proper basis for either making or refusing an award of interest. This is quite apart from circumstances where provisions such as s 151M of the Workers Compensation Act apply.

20 If the purpose of the discretion to award interest is to compensate the plaintiff for the period during which he or she has been out of his or her money, there seems little merit in a detailed consideration of the competing claims as to the cause or causes of any delays by the parties that may have extended the period during or over which the interest is claimed. The position may be different if the parties' respective access to investment opportunities or interest rates is different but where the prevailing opportunities are not dissimilar then the defendant's obligation in effect to account to the plaintiff for the use of the plaintiff's money should substantially inform the outcome. The general principles applying to an exercise of the discretion in question were discussed in ICT Pty Limited v Sea Containers Limited [2006] NSWSC 1280 at [14] – [19].

21 The factual basis for the decision I am asked to make is limited. It has not significantly been coloured or characterised by pejorative suggestions of fault or blame beyond Mr Glover's concession that the defendant was not at fault in causing the delay or contributing to it. I have been greatly assisted by the learned analysis of Moffitt P in Bennett v Jones [1972] 2 NSWLR 355 at 367 as follows:

"When there is part of a verdict, which may properly be the subject of an award of interest, because it relates to money which has been outstanding, the wide discretion to award interest arises. At this point we are concerned with how this Court should itself exercise this discretion. Before doing so, it is relevant to inquire what is the relevance of delay. If a plaintiff fails in some respects to give to a defendant all the information required under the court's procedures, or fails, before the action, to volunteer all information that would enable a defendant to tender or pay the sum eventually awarded, or, if the plaintiff defaults in court procedures in some other way, ought this attract a discretion not to award interest, or to limit the award?

A number of questions arise. Is the power to award interest such that it should be used punitively, so a plaintiff or defendant is penalised for delay or failure to observe court procedures; or is it entirely compensatory, so as to do no more than that which is fair in a pecuniary sense between the parties? Is the jurisdiction to be exercised, or not exercised, simply by inquiry whether the defendant ought to have paid money to the plaintiff at some earlier date; or is it to be awarded on some more neutral basis, as that, for some reason, the money has been outstanding for a period, in which the defendant had the benefit of not paying it and the plaintiff the detriment of not having it, and that delay and the conduct of a party is relevant, only so far as by reason of it, there is, or may be, economic disadvantage to the opposing party by an award of interest being, or not being, made? For reasons I will indicate, in my view the approach last mentioned in each of the two foregoing queries is that which is in conformity with the statute."

22 Even though the delays in concluding the proceedings since 12 February 2007 have not been caused by the defendant, it has suffered no loss or detriment or other prejudice that is out of proportion to the obligation to pay interest on the money that it has retained and benefited from during that period. In neutral terms the defendant is being asked only to account for the advantage that it has enjoyed and which Mr Glover has been denied. There are no dissimilarities of benefit or burden to which my attention has been drawn that would favour the exercise of discretion moulded to account for them. In the absence of any such factor that ought to colour or direct me in my task, I consider that the parties' respective positions are evenly poised, so that the defendant should pay interest to Mr Glover for the whole of the period of 16.5 years in the sum agreed by the parties to apply to that period.

Interest on past legal costs

23 Mr Glover also claims interest on past paid legal costs. These are costs incurred by him and paid for representation at the first trial. I am not asked to calculate any particular sum for this part of his claim but only to determine his entitlement, if any, to interest on past legal costs as an exercise of discretion.

24 Section 101 of the Civil Procedure Act contains the power to order interest on costs. It is relevantly as follows:

" 101 Interest after judgment

(1) …

(4) The court may order that interest is to be paid on any amount payable under an order for the payment of costs.

(5) Interest under subsection (4) is to be calculated, at the prescribed rate or at such other rate as the court may order, as from:

(a) the date or dates on which the costs concerned were paid, or


(b) such later date as the court may order."

25 In Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd [2002] NSWSC 280 at [23] – [24], Einstien J said this:

"[23] In my view, by its terms, s 95(4) is plainly not limited to the awarding of interest only where an applicant demonstrates a " special " case. As the applicants point out in their written submissions in reply, Justice Barr recently in Grogan v Thiess Contractors Pty Limited [2000] 1101 paragraph 10 said:

'Subsection (4) bears no requirement that interest on costs is not to be awarded in an ordinary case. It does not fetter the power of the Court to order costs in an appropriate case. The width of the power conferred by the subsection is, I think, consistent with that of the power over the ordering of costs generally: Supreme Court Act s 76; McWilliam Wines v Liaweena (NSW) per Rogers J at 192 .'

[24] As the applicants further submit, the reasoning of Barr J in Grogan has recently been endorsed by Grove J in Puntoriero v Water Administration Ministerial Corporation [2002] NSWSC 217 at paragraph 10. Grove J further stated “ The words of the statute [i.e. s 95(4)] are unambiguous and they contain no restriction to special circumstances ."

26 In Woods v Woods [2001] NSWSC 1108, Hamilton J held that the Court has power to order interest on costs payable from a date prior to the date of a costs order. See also Simmons v Colly Cotton Marketing Pty Ltd [2007] NSWSC 1092 per Bergin J and Seiwa Australia Pty Ltd v Seeto Financial Services Pty Ltd (No 2) [2010] NSWSC 118.

27 Mr Glover submitted that in the circumstances he was clearly entitled to interest on costs and disbursements incurred by him in the first hearing and on the appeal. These costs and disbursements were incurred prosecuting litigation against the defendant that was ultimately successful. He contended that, but for the tort, Mr Glover would never have been out of pocket for these sums. Mr Glover does not seek interest on the costs of the hearing before me.

28 The defendant referred to what is said by Professor Dal Pont in "Law of Costs", LexisNexis, 2003, dealing with the position before the enactment of the Civil Procedure Act. Section 95(4) of the Supreme Court Act1970 was the equivalent provision. The following propositions emerge from paragraph 19.17 at 651:

"(a) Section 95(4) confers a general discretion to make an award of interest on costs calculated before the judgment.

(b) Circumstances relevant to the court's determination may include:


(i) the amount of costs paid;

(ii) the length of time the claimant has been out of pocket before recovery;

(iii) whether the respondent has been relieved of the need to borrow at interest or has obtained the advantage of leaving monies invested at interest;

(iv) the terms of the retainer agreement between the claimant and his or her lawyer;

(v) how the parties have conducted themselves during the litigation.

(c) The main factor that may cause the court to award interest on costs appears to be delay in the resolution of proceedings where a party has been out of pocket for an inordinate time. For example, in Maronis Holdings Limited v Nippon Credit Australia Limited , Bryson J awarded the defendants interest on costs under s 95(4) " In view of the protracted nature of the interlocutory stages of the litigation due largely to the plaintiffs' many amendments to their pleadings ".

29 The defendant argued that no material has been produced by Mr Glover of the kind identified in the paragraph last quoted. Moreover, Mr Glover points to no conduct of the defendant as having caused the delay. The power to award interest on costs is discretionary.

30 In my view, the matters identified by Professor Dal Pont are obviously instructive but not mandatory requirements. In addition, the need to demonstrate the existence of such factors is to some extent in tension with the approach that I have previously endorsed, explained by Moffitt P with respect to the question of a discretion to award interest on damages. I consider that I should adopt the same approach to the question of Mr Glover's claim for interest on paid costs as I took to his claim for interest up to judgment on damages. All other things being equal, Mr Glover is entitled to such interest.

Costs of the trial before Newman J and of the appeal to the Court of Appeal

31 In Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80 at [94] the Court said this:

" The order for a new trial and the orders as to costs

[94] The appellant sought only a new trial. This was entirely appropriate as it would be impossible to determine on the material before this Court which of the witnesses was in fact telling the truth. This is a matter for the trial judge at the new trial. The trial judge would be best equipped to deal with any questions of costs that might arise."

32 The Court of Appeal did not criticise the manner in which Mr Glover's case was originally conducted before Newman J. Mr Glover was successful on his appeal. He was equally successful in his case before me.

33 UCPR 42.1 provides as follows:

" 42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs."

34 The defendant drew my attention to the following principles as those that should inform the exercise of my discretion to award costs in the circumstances of this case. First, where the Court of Appeal has ordered a new trial the general rule is that the costs of the first trial will abide the event of the new trial, or the costs may be left to be determined at the re-trial. Secondly, if the new trial has been caused principally by a party's error in the conduct of the original hearing, that consideration may justify ordering that party to pay the costs of that hearing irrespective of the outcome of the new trial. Thirdly, where both parties have contributed to procedural miscarriages, the court may order each party to bear its own costs of an appeal or make no order as to costs to the intent that each party will bear its own costs of the appeal.

35 The defendant emphasised the following matters that arise from a consideration of the decision of the Court of Appeal in 2003. Mr Higgins gave evidence at both trials. At the first trial, Mr Glover was cross-examined to suggest that he had told Mr Higgins that his injuries occurred when Mr Glover was pushed over by his wife. Mr Glover denied this in cross-examination. Mr Higgins gave evidence at the first trial in the same terms as the re-trial that he asked Mr Glover what had happened to him and Mr Glover replied that his wife had pushed him over. At the first trial Mr Higgins was not cross-examined about this evidence.

36 The judge at the first trial found against Mr Glover. That was partly based upon a misinterpretation of the evidence of a Mr Thompson. The Court of Appeal held that it was not incumbent upon the defendant to plead fraud in answer to Mr Glover's claim but that there was a duty of fairness to confront a plaintiff with such a contention before it was proper to rely upon it. The Court of Appeal accepted that the cross-examination of Mr Glover made it clear that the question of whether he was injured at work was going to be a serious issue at the trial.

37 The Court of Appeal held that Mr Glover had not been guilty of any lack of diligence in failing to obtain Mrs Glover's evidence for the first trial, or in failing to seek an adjournment.

38 The defendant contends before me that Mr Glover failed at the first trial because, for whatever reason, no cross-examination was directed towards Mr Higgins. Newman J was therefore left in the unsatisfactory position of Mr Glover having denied the allegation but with no challenge having been made to the person who made it.

39 The defendant submitted that this is a case where there were irregularities in the conduct of the first trial by both sides, so that both parties bore some responsibility for the result in the first trial and the necessity for an appeal. Accordingly, there should be no order as to the costs of the first trial or the appeal.

40 Mr Glover submitted that the Court of Appeal made no criticism of him or the conduct of his case at the first trial. Much of the Court of Appeal's reasons are concerned with how Mr Glover was ambushed by the failure to notify Mrs Glover's allegation. Mr Glover was wholly successful on the appeal. Mr Glover submitted that the defendant should be ordered to pay the costs of the first trial and of the appeal.

41 Neither party suggested that the costs of the hearing before me should not follow the event of that trial.

42 I have considered the reasons of the Court of Appeal, contained in the judgment of Ipp JA, in some detail. It thoroughly canvasses the series of issues that are briefly referred to already. At the heart of the Court's decision is the fact that Newman J made an error in the way that he characterised the evidence of Mr Thompson. In his judgment his Honour remarked that Mr Thompson had stated he was unaware that the appellant had an accident on 1 May 1994 and maintained this position in cross-examination. Each of these remarks by Newman J was incorrect. Mr Thompson had not testified that he was unaware of the alleged accident and was not challenged in cross-examination as to whether the appellant had told him of the injury. These errors would alone in my view have led to the appeal being allowed, even in the absence of the other significant matters that arose for consideration.

43 The most significant issue in the Court of Appeal was undoubtedly Mr Glover's application to lead fresh evidence. That in turn would appear to have arisen predominantly out of the failure by the defendant to articulate in its defence the basis upon which it chose not to admit that Mr Glover's accident had occurred in the way he alleged in his statement of claim. Even though the defendant was not criticised for this approach, there does appear to be a connection between the significance of the errors of Newman J and the outcome at the first trial. In other words, if Mr Glover had been on notice of the defendant's challenge to the way in which the accident was said to have occurred, Newman J would in all likelihood have been confronted with the additional, or fresh, evidence referred to in the Court of Appeal. His Honour would then have been required to determine that dispute with evidence that arguably would have influenced the outcome. It seems at least possible, if not likely, having regard to the evidence that was before me at the second hearing and the view I formed about the issue of liability, that a different outcome at the first trial would have resulted if that had occurred.

44 In all of these circumstances it seems to me that Mr Glover's success in the Court of Appeal was almost, if not entirely, inevitable. By the same token, he should not have lost before Newman J if the issues that emerged in the Court of Appeal had been agitated with the clarity that emerged there. This in my opinion leads to the conclusion that the costs of the first trial and in the Court of Appeal should abide Mr Glover's success in the proceedings before me. The defendant should pay Mr Glover's costs of the first trial and of the appeal.

Conclusions and orders

45 In these circumstances the following orders should be made:

1. Verdict for the plaintiff for $2,252,531.56 made up as follows:

(a) Non-economic loss: $107,775.
(b) Economic loss (past loss of wages): $904,934
(c) Past domestic assistance: $75,088
(d) Future domestic assistance: $79,633
(e) Past out-of-pocket expenses: $11,850.
(f) Future medical and out-of-pocket expenses: $25,000.
(g) Loss of superannuation: $178,951.56
(h) Interest: $869,300.


2. Order the defendant to pay the costs of the trial before Newman J, in the Court of Appeal and of the hearing before me.

3. Order the defendant to pay interest on such costs and disbursements incurred and paid by the plaintiff in respect of the trial before Newman J and in the Court of Appeal at such rate as may be determined in accordance with Supreme Court Practice Note SC Gen 16.

4. Direct that the exhibits be returned after 28 days.


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