Haines v Bendall

[1990] HCATrans 163

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S32 of 1990

B e t w e e n -

TREVOR WILLIAM HAINES

Applicant

and

DENNIS BENDALL

Respondent

Application for special leave

to appeal

MASON CJ
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 6 AUGUST 1990, AT 3.26 PM

Copyright in the High Court of Australia

Haines 1 6/8/90

MR A.R. ABADEE, QC: If it please Your Honours, in this

matter I appear with my learned friend,

MR P.R. GARLING, and my learned friend, MR

R. GAMBI, for the applicant. (instructed by Paul J.

McGahen).

MR C.R.R. HOEBEN:  May it please the Court, I appear for the

respondent. (instructed by Abbott Tout Russell

Kennedy)

MASON CJ: Yes, Mr Abadee?

MR ABADEE:  May it please the Court, there are two points of

public importance which, in our respectful

submission, arise in respect of this application.

The first question is whether the receipt of

lump sum compensation under the workers

compensation legislation of New South Wales and

indeed, similar legislation in other States and the

Commonwealth, should be taken into account in determining the amount of interest that should be

awarded in respect of past general damages in an

action for damages at common law.

The second point of public importance is

whether the decision of this Court in Batchelor v

Burke, where the Court held that in the computation

of interest in respect of past economic loss one

should have regard to weekly compensation paid

under workers compensation legislation, is a

principle that applies to other forms of

compensation or other forms of damage apart from

damages for past economic loss.

I hand to the Court a photostat copy of the

decision of the Court's judgment in Batchelor v

Burke. May I also hand to the Court a document

headed "Calculation of Interest" which will

indicate the economic importance of the questions

generally.

If I may proceed to the document described as

"Calculation of Interest", 1. represents the

factual matrix of the particular case in

hand; 2. represents what the situation would have

been in terms of interest in the event that the

lump sum compensation had been paid within six

months of the occurrence of the accident, and that

might indeed occur from time to time where there

is, in fact, a clear loss of function or use that

has manifested itself either at the time of injury,

for example, an amputation or alternatively, within

a short period of time of the happening of the

injury. 3. is a calculation taking, for example,

not the facts of this case, but a tabled injury for

loss of eyesight in certain circumstances; and

Haines 2 6/8/90

4. represents what the amount of interest would be

on a lump sum payment in a situation where there is

a loss of one leg in the circumstances postulated

by the example.

The injury to Mr Bendall occurred on

5 December 1979. It is common ground that on or

about 1 April 1985 in respect of his subject injury

which affected the spinal cord and manifested

itself in terms of partial loss of the use of the

lower limbs, and also some partial loss of the use

of the left arm, the section 16 payments on
1 April 1985 in accordance with the statute were in

the sum mentioned of $49,000.

On 14 October 1988, His Honour entered

judgment for the plaintiff and then proceeded to

calculate an interest payment in respect of past

general damages. The past general damages were in

the sum of $75,000 and the award of interest in

respect of past general damages was the sum of

$52,800. The amount of interest, however, in

respect of the section 16 payment between the date of the payment and the date of the trial would, on the approach that His Honour adopted, namely of

allowing 8 per cent, have been in the sum of almost

$14,000. Had the relevant section 16 payment been

made within six months of the happening of the

injury, then the amount of interest on that

section 16 payment component between the date of

injury and the date of trial would have been in the

sum of $32,678.

The provision, section 16, has, however, been

amended in 1987 pursuant to the amendments

incorporated in that Act. However, the table of

injuries in respect of which a lump sum can be
awarded has been retained, and there is in addition

a further entitlement for a specific head called

"Pain and Suffering". The point that we make is

that section 16 is still a live provision in terms

of its counterpart.

There are counterpart provisions in the State

Acts throughout the Commonwealth. Indeed, the Acts

show that there is a general pattern of Australian

compensation schemes for lump sum compensation in

addition to other entitlements to workers

compensation payments. The relevant equivalent

provisions of section 16 are section 11 of the

Victorian Act, section 14 of the Queensland Act,

section 10 of the Ordinance of the ACT - - -

MASON CJ:  We need not trouble you further at this stage, Mr

Abadee.	We will hear what the respondent has to
say.

Haines	6/8/90
MR ABAOEE: If the Court pleases.

MR HOEBEN:  Your Honours, we have nothing to say in relation to the general application of the principle. What

we do say is there is no error disclosed in the
findings of the Court of Appeal. But what my
learned friend is attempting to do is to compare

oranges with apples, that there is no Batchelor v

Burke correlation between a section 16 payment and

a payment of general damages such as is dealt with

here.

The concept of section 16 deals with a

permanent loss of function of various parts of the

body dealt with in a schedule. General damages,

however, is a much broader concept. It deals with
pain and suffering, loss of amenity, loss of

enjoyment of life, and there is a quite useful

expansion of that concept in the Court of Appeal

judgment, for example, discomfort, inconvenience.

I think they specifically refer to there the loss

of pleasure derived from various activities. It is

a very broad concept.

TOOHEY J: But is not the point, Mr Hoeben, that the workers

compensation payment is subsumed in some way in the

award of general damages? The fact that one is

greater than the other does not necessarily answer

the applicant's proposition.

MR HOEBEN:  Your Honour, in our respectful submission, the

area of	overlap is so small as to not really
involve	very much in the way of correlation. For
example

McHUGH J: Well, the legislature seems to think it does

because it requires you to pay the money back, not

require that you repay a proportion of your lump

sum payment. But if you get a common law award of

damages you have to pay the lot back. I mean, just

as a matter of justice it just seems extraordinary

that interest should be payable on this portion of

the award when the plaintiff has already had the

benefit of the money.

MR HOEBEN: Well, Your Honour, in relation to that, the

question of justice or injustice really, although

to some extent this was dealt with in Batchelor v

Burke, it is not really any injustice perpetrated

on the tortfeasor here because it did not pay the

money. It is seeking to take advantage of a

payment made by a third party but that, I

appreciate, is not a complete answer to

Your Honour's point. But Your Honour - - -

McHUGH J: And that is what Their Honours said in Batchelor

v Burke.

Haines 4 6/8/90

MR HOEBEN: Indeed, they disregarded that aspect.

TOOHEY J: Well, would the point hold good if the tortfeasor

was the employer?

MR HOEBEN:  The injustice point that Mr Justice McHugh has

referred to would certainly have much more force,

in our respectful submission. But Your Honour, there is another answer we wish to make to that

particular proposition and it is this. A section

16 payment is a payment for permanent loss of

function, and it involves a -

TOOHEY J: It used to be "a fit use". Is it still that?

MR HOEBEN:  I think it has been expanded, Your Honour, but

it is "use" or "loss of function" - it is defined

in subsection (5) of section 16. But Your Honour,

it involves both a past and future element. It is

a payment made for the loss at the time of the

assessment. The general damages against which it

is sought to be offset by my learned friend is an

allowance made by the court for "past". And so

again, Your Honour, it is a distortion, in our

respectful submission, to follow the approach urged

by my friend, and that is to simply look at the

payment and say, "Well, that has to be deducted
from those general damages applied to the past".
But that really is our attack on the point,

Your Honour, that really the level of overlap - and

there is some - is so slight as to really not be a

matter which this Court ought to concern itself

with.

For example, there are situations where there

is no, or almost no overlap.	We can take two
extremes.	You could have the coma situation where

a person could have an entitlement to section 16

which was very high indeed, but his entitlement to general damages, it being a subjective assessment,
would be very low because his consciousness or

appreciation of what he has lost and suffered would

be low.

Alternatively, there is the example that

Mr Justice Carruthers used in his judgment, that

one could have an award of general damages which

was extremely high for psychiatric injuries and

damage, but the section 16 award would be nil

because there was no physical loss. So,

Your Honour, it is our submission essentially - - -

McHUGH J:  But in that case you would not have had any

payment under section 16, would you?

MR HOEBEN: Well indeed, Your Honour, but the concepts is

what we are dealing with. We say where there is an

Haines 5 6/8/90

overlap it is slight, and they really do deal with

different things.	They are our submissions,
Your Honours.

MASON CJ:	The Court need not trouble you, Mr Abadee.
MR ABAOEE:	Thank you, Your Honour.

MASON CJ: There will be a grant of special leave in this

case.

AT 3.38 PM THE MATTER WAS ADJOURNED SINE DIE

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