Lonergan v Sisters of St Joseph

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0121

PETER WILLIAM LONERGAN	Applicant
v
THE TRUSTEES OF THE SISTERS OF SAINT JOSEPH	First Respondent
AND
BISHOP PAUL BIRD (AS THE NOMINATED PROPER DEFENDANT IN RESPECT OF THE CATHOLIC DIOCESE OF BALLARAT)	Second Respondent

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JUDGES:	BEACH, MACAULAY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2022
DATE OF JUDGMENT:	28 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 208
JUDGMENT APPEALED FROM:	[2021] VSC 651 (Keogh J)

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NEGLIGENCE – Damages – Damages for loss of earning capacity – Applicant victim of sexual abuse – Liability admitted by respondents at trial – Award of $390,000 for loss of earning capacity – Expert evidence – Trial judge considered expert evidence and evidence of applicant’s geographic location and level of education when making award – Whether trial judge erred in discounting award on bases of applicant’s location and level of education – Whether assessment of damages for loss of earning capacity manifestly inadequate – Leave to appeal granted on ground 3 – Appeal dismissed.

PRACTICE AND PROCEDURE – Interest – Application of section 60 of Supreme Court Act 1986 – Damages for historical sexual abuse – Whether interest under s 60 runs from date of accrual of cause of action or date of commencement of proceeding – Interest runs from date of commencement of proceeding.

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Counsel
Applicant:		Mr J McComish with Ms A Wharldall
First Respondent:		Mr JT Rush KC with Mr JC Hooper
Second Respondent:		Mr J Ruskin KC with Mr BW Jellis
Solicitors
Applicant:	Ken Cush & Associates
First Respondent:	Carroll & O’Dea Lawyers
Second Respondent:	Colin Biggers & Paisley

BEACH JA
MACAULAY JA
KAYE JA:

The applicant was sexually and physically abused while a pupil at St Joseph’s Primary School and an altar boy at St Joseph’s Church in Ouyen, north west Victoria, when about 12 and 13 years of age in 1973 and 1974. He was abused by the parish priest of the church who also carried out a role at the school. As a result of the abuse, the applicant suffered post-traumatic stress disorder and a persistent depressive disorder which, as found at trial, disrupted his schooling, involvement with his church community and family life.
On 27 March 2020 the applicant commenced a proceeding in the Supreme Court of Victoria against the first respondent (the Sisters), as the proper defendant for a claim against the school, and against the second respondent (the Diocese) as the proper defendant for a claim against the church.[1] In the proceeding, the applicant sought general damages for pain and suffering and loss of enjoyment of life, damages for future treatment expenses, damages for past and future economic loss, and aggravated and exemplary damages.
[1]The first and second respondents were named as proper defendants under the Legal Identity of Defendants (Organisational Child Abuse) Act 2018.
Shortly before the trial, the respondents admitted that the priest had abused the applicant although the frequency and particulars of abuse remained in dispute. During the course of the trial, the Diocese and the Sisters both admitted breach of duty. The trial judge awarded the applicant $250,000 in general damages, $10,000 for future treatment expenses, $390,000 for past and future economic loss, and declined to award exemplary or aggravated damages. The judge awarded interest on damages pursuant to s 60 of the Supreme Court Act 2015 (the Act) but rejected the applicant’s submission that such interest should be awarded from the date the cause of action arose.
The only two issues in this application for leave to appeal are:
(a)whether the judge erred in his assessment of economic loss; and
(b)whether the judge erred in relation to the award of interest.
Expert evidence on economic loss was given for the applicant by an accountant, Mr David Heath. For the respondents, expert evidence was given by an accountant and agriculturalist, Mr Richard Ivey. In reaching his conclusions on the forensic accounting evidence the judge stated that he accepted the assessment of Mr Ivey subject to certain adjustments. In valuing the applicant’s future earning capacity, the judge adopted a figure derived by using a discount rate to arrive at net present value. The judge also discounted the applicant’s overall economic loss by 40 per cent on account of the possibility that, without injury, the applicant might have pursued a career between 1978 and his likely retirement in 2028 (at age 67) that was no different to the career he pursued with his injury.
The applicant sought leave to appeal on five proposed grounds, as follows:
•Ground 1: the trial judge erred in preferring the respondent’s expert evidence on the valuation of the applicant’s economic loss, in circumstances where the reasons for the judge’s preference for the respondent’s evidence was based on irrelevant or mistaken considerations (particularised on six bases);
•Ground 2: the trial judge erred in valuing the applicant’s future economic loss in a manner that applied a 5 per cent discount rate;
•Ground 3: the trial judge erred in discounting the applicant’s economic loss by 40 per cent on account of the possibility the applicant would have been a farmer in any event;
•Ground 4: by reason of the foregoing, and in all the circumstances, the trial judge’s valuation of the applicant’s economic loss at $390,000 was manifestly inadequate (contending that it should have been valued at $1,341,300); and
•Ground 5: the trial judge erred in finding that s 60 of the Supreme Court Act 1986 (Vic) prevented, in the circumstances of this case, the award of interest prior to the commencement of the proceedings even if ‘good cause’ were shown to the contrary.
Ground 2 was abandoned once the applicant acknowledged that, in fact, the judge had applied a 3 per cent discount factor to arrive at net present value of the future economic loss, a figure which the applicant accepted as being appropriate.

Background facts

The applicant was born in 1961. In 1973 and 1974, when he was a pupil at St Joseph’s Primary School and an altar boy at St Joseph’s Church in Ouyen, in north west Victoria, he was sexually and physically abused by the parish priest, Bryan Coffey.
The school was managed by the Sisters. The Ouyen parish is in the Catholic Diocese of Ballarat. The then-Bishop of the Diocese had appointed Coffey to his role as parish priest. Coffey was a prolific abuser of children. The repeated abuse suffered by the applicant at Coffey’s hands included:
(a)being made to strip naked and be weighed; and
(b)being spanked on his bare buttocks and having his genitals fondled.
The applicant gave evidence that prior to the abuse he was a well-behaved and conscientious student. After the abuse, there was a significant attitudinal change, with the applicant becoming disengaged, rebellious and unable to trust people in positions of authority, particularly men. He left school at the end of 1977, on the School’s recommendation, not having completed Form 5. He has not completed any secondary or post-secondary qualifications.
After he left school the applicant worked on the family farm with his brother, who was two years older than him, and his father. Neither he nor his brother were paid for that work. As will appear, an issue arose concerning the extent to which the benefit of free board, fuel and other provisions were to be accounted for as a form of remuneration in calculating his earnings while he lived and worked on the farm. He worked on the farm between about 1978 and 1986. For some of those years he also performed some labouring work for a cousin who was a builder, and did some grain handling work for a short time. For the rest of that period he worked on the farm full time.
There were other employment opportunities he did not pursue in his late teens and early twenties. This included work as a mechanic, electrician and a builder. On one occasion, he went with his father to meet a prospective employer. He could not make himself get out of the car and face the older man, precluding him from proceeding with that opportunity. He was also invited to train with the Essendon Football Club at age 16. When he arrived there was an older man in the changerooms. This caused him to leave as he felt unsafe.
At age 25 he obtained employment in a local hardware store where he worked for a couple of years. In 1987, he married his wife, Michelle, who was also from Ouyen. Michelle had left Ouyen after school to study teaching at university in Melbourne. Upon completing her degree, she worked for one year as a teacher in Altona before returning to Ouyen. She said whilst she enjoyed Melbourne, she preferred life in the country. With Michelle and her parents the applicant bought a roadhouse in Ouyen and, together, he and Michelle ran the roadhouse, where he worked seven days a week. After seven years they sold the roadhouse. For a further two years he worked full time on his parents’ farm, then he obtained employment, intermittently, with an agricultural machinery sales business in Ouyen for one year.
Around about this time, Michelle’s parents — also farmers — gave the applicant and Michelle a six acre block of land in Ouyen on which they built their home where they and their children have lived since.
Around the year 2000, the applicant’s parents divided the family farm between the applicant and his older brother. Before that time — in about 1984, when the applicant was 23 — his parents had purchased a further farm block to add to the existing farm, registering that block in the joint names of the applicant and his brother. The applicant said if he had obtained a different job and not returned to the farm then the block would not be his. Also, in 1997, the applicant’s mother had purchased another block of farmland using money from an inheritance and registered that land in the joint names of the applicant and his brother. After the family farm was divided between the two brothers, Michelle’s parents sold another parcel of farmland to the applicant and Michelle, the applicant contributing $20,000 his father had given him. In 2003 and 2015 the applicant and Michelle purchased further parcels of farmland so that, by the time of trial, their farm was made up of five blocks.
From 2000 onwards the applicant worked full time as a farmer on his and his wife’s farm. They remained living, however, on the six acre block of land which was not part of the farm. His evidence at trial was that he intended to work on the farm until his retirement.

Forensic accounting evidence

Usually, as was the case here, the task of assessing an injured person’s loss of earning capacity is facilitated by a comparison between the injured person’s hypothetical past and future earnings had they not suffered the injury (ie ‘without injury’) and their past and future earnings after being injured (ie ‘with injury’). By definition, the ‘without injury’ calculation is entirely hypothetical. The ‘with injury’ calculation is derived from the person’s past actual earnings plus their projected future earnings in their injured state. The difference between the two calculations provides at least a starting point for assessing the loss of earning capacity by reason of the injury.
One might expect the calculation of actual (‘with injury’) past earnings to be capable of a reasonable degree of precision. But even that calculation can be complicated when, as here, income has been derived from a business owned and conducted by the injured person. A calculation of past (and future) hypothetical (‘without injury’) earnings involves many contestable assumptions. Such a calculation seeks to hypothesise what would have happened to the worker had they not suffered the impact to earning capacity from the injury. When an impact occurs to earning capacity at an early, formative stage of a person’s life, the assessment of loss can involve a particularly high degree of assumption and projection.
Finally, any calculation of future earnings (whether with or without injury) involves making assumptions as to the length of time the person will work until retirement, the nature of that work and amount of annual income to be derived from it. It also requires the conversion of the assumed future earnings into a present value, for the purpose of awarding a once-and-for-all award of damages, allowing for both adverse and beneficial contingencies as well as the earning capacity of invested money.
As was the case here, the sort of calculations described above are frequently assisted by expert forensic accounting evidence, with experts expressing opinions on loss based upon identified assumptions.

Mr David Heath

Mr Heath was retained by the applicant’s solicitors to estimate the applicant’s economic loss suffered by reason of his physical and sexual abuse by Coffey. Mr Heath was instructed by the solicitors to assume:
(a)First, without injury, the applicant would have:
(i)completed high school studies at the end of 1978;
(ii)commenced full time employment in 1979 with earnings consistent with those of an average full time working Victorian male;
(iii)received employer superannuation contributions; and
(iv)retired at age 70.
(b)Secondly, at the date of calculation, the applicant’s current and future ‘with injury’ annual earning capacity (as a farmer) would be $22,500, continuing until retirement at age 70.
Mr Heath wrote a report dated 26 May 2021. He stated that, for his calculations:
•he made no adjustment for the vicissitudes of death, illness or unemployment;
•for ‘without injury’ earning capacity he adopted the average weekly earnings of a full time working Victorian male (‘AWE’) as published by the Australian Bureau of Statistics (ABS);
•past actual ‘with injury’ earnings were primarily derived from the applicant’s tax returns, but where they were absent he used the occupational earnings from ABS publications or the applicant’s past average business earnings;
•he took into account employer superannuation contributions while the applicant was actually employed in positions between 1989 and 1999 but, because the applicant’s tax returns did not disclose any personal superannuation contributions while he was self-employed, no other superannuation contributions were taken into account; and
•for future loss of income, he adopted a discount rate of 3 per cent per annum for calculating net present value.
Mr Heath also set out his instructions concerning the applicant’s actual employment history together with the assumptions which are recorded at [21] above.
Mr Heath’s report contains a number of tables, including:
(a)a table of the applicant’s actual ‘with injury’ earnings (derived as explained) for financial years 1 July 1978 to 1 July 2020, being: nil earnings (while the applicant worked on his parents’ farm until 1986); earnings from employment and self-employment as a farmer from 1987 through to 1 July 2017; and, thereafter, earnings to 3 February 2031 (at age 70) of $22,500 per annum as the ‘long term average business profits’;
(b)a table of the annual AWE figures, from 1 January 1979 to 1 July 2020, as published by the ABS;
(c)a table of income tax and Medicare levy rates for the relevant period and income bands; and
(d)a table of superannuation guarantee contribution rates per year over the relevant period.
From those various tables, Mr Heath calculated that, without injury, the applicant’s earning capacity would have been:
(a)from 1 July 1979 to 28 May 2021:
(i)earnings — $1,568,274.
(ii)superannuation — $153,619.
(b)from 29 May 2021 to 2 February 2031 (aged 70):
(i)earnings — $619,199.
(ii)superannuation — $92,605.
Mr Heath calculated that the applicant’s ‘with injury’ earning capacity was:
(a)from 1 July 1979 to 28 May 2021:
(i)earnings — $616,877.
(ii)superannuation — $5,972.
(b)from 29 May 2021 to February 2031:
(i)earnings — $188,527.
(ii)superannuation — nil.
The difference between the applicant’s past and future economic earning capacity with and without injury was thus:
(a)past and future earnings — $1,382,069.
(b)past and future superannuation — $240,252.
(c)total loss of earning capacity — $1,622,321.
To that total, Mr Heath made several adjustments. They were made as a result of matters contained in Mr Ivey’s report which were put to Mr Heath in cross-examination, namely:
(a)the value of two instant asset write-offs permitted by the Australian Taxation Office in financial years 2018 and 2019; and
(b)the future value of a $51,000 un-taxed farm management deposit used to reduce taxable income in a previous income year to be brought to account as income when it was withdrawn.
As a result of those adjustments, Mr Heath conceded that, by adding back the asset write-offs for the 2019 year the assumed ‘with injury’ income of $22,500 would be increased by $60,000 and the same assumed income figure for the 2020 financial year would be increased by $50,000. Because the income for those two years had been used to calculate the assumed average income thereafter, with those changes the average future earnings after 2021 through to 2031 would need to be increased by an aggregate amount of $120,000. The impact of the farm management deposit was a straight addition to ‘without injury’ earnings of $51,000. The combined effect of the four adjustments was to increase the applicant’s ‘without injury’ earnings by $281,000 and to commensurately reduce the total economic loss figure. The adjusted total economic loss figure became $1,341,300.

Mr Richard Ivey

Mr Richard Ivey was retained by the respondent to estimate the applicant’s lost earning capacity by reason of the abuse. He had the benefit of Mr Heath’s report at the time of preparing his own. Mr Ivey was asked to comment on Mr Heath’s report and also to make his own analysis of the lost earning capacity.
Mr Ivey made the following specific comments about Mr Heath’s report and the method he had adopted:
(a)as previously mentioned, Mr Ivey drew attention to the instant asset write-offs applied to the 2019 and 2020 financial years and was of the view that they should be removed to reflect the true value of the operating profit of the farm business;
(b)as also mentioned, he was of the view that the impact of the farm management deposits made and redeemed had not been accounted for in Mr Heath’s report, resulting in an underestimate of past income (before tax);
(c)he considered that Mr Heath’s use of AWE figures was not appropriate for three reasons, namely:
•first, ‘average’ figures were ‘skewed’ by a relatively small number of high income earning individuals, so that a ‘median’ figure within the data set would be more reflective of a ‘typical’ measure of earnings;
•secondly, earnings for all Victorian males would be substantially higher than those within the ‘statistical region’ in which the applicant resided, namely north-western Victoria; and
•thirdly, because Mr Heath was instructed to assume (on the ‘without injury’ hypothesis) that the applicant would have entered the workforce after the end of Year 12, that assumption necessarily implied that the applicant would not have undertaken further non-school education. The median income of male employees without non-school education was, according to the ABS survey, 23.4 per cent less than the corresponding income figure for all Victorian males with or without non-school qualifications;
(d)whereas Mr Heath had allowed for a retirement age of 70, the ABS survey results showed that for males who had already reached 60–64 and were still working, the average intended retirement age was 66.8 years; and
(e)there were various non-cash benefits (‘non-cash benefits’) that should have been taken into account during years the applicant: (1) worked on the family farm for no income while receiving full board (1983 to 1986); (2) received a share of primary production income while also residing at home and receiving board and travel benefits (1987 to 1998); and (3) received subsidised rent, board, rations and some personal expenses (from 2001 onwards after assuming control of the family property).

With these observations, Mr Ivey essentially undertook the same analysis Mr Heath had performed — that is, he calculated a hypothetical set of past and future earnings using an assumed expected earning rate, together with superannuation, to arrive at the ‘without injury’ earning figure. He then compared that figure with an actual set of ‘with injury’ past earnings and superannuation, together with projected future income and superannuation.
Mr Ivey was of the opinion that an appropriate expected earnings figure for the applicant, for assessing the ‘without injury’ scenario, was a figure reflecting 76.6 per cent of the AWE. That is to say, Mr Ivey applied the 23.4 per cent deduction referred to in [31(c)] above to take into account his view that median was more appropriate than average, and to better reflect geographical and educational characteristics appropriate to the applicant. Rather than cumulate deductions for all three factors, Mr Ivey considered that an adjustment for the absence of non-school qualification would adequately capture the adjustment required for all factors. Accordingly, he projected the earnings of such a person from 30 June 1979 to 30 June 2021, and further from 1 July 2021 to 3 February 2028 (when the applicant would turn 67) discounted by 5 per cent for net present value.
For the ‘with injury’ scenario, Mr Ivey produced two detailed tables which summarised:
(a)the profit and loss statements of the farm enterprise between 2001 and 2020; and
(b)the applicant’s earnings from 1978 to 2021 (the final year being ‘projected’).
Mr Ivey’s calculation of the applicant’s past earnings of $1,075,945 was substantially greater than Mr Heath’s original figure for the same variable ($616,877) for two main reasons:
(a)Mr Ivey included non-cash benefits of $296,885 whereas Mr Heath did not; and
(b)Mr Ivey adjusted for total asset write-offs and the farm management deposit, whereas, originally, Mr Heath did not do so.
During the trial, it was put to Mr Ivey that he had incorrectly assumed (as in fact he did) that from 2001 onwards the applicant had lived on the farming property on which he derived his income, and in doing so he received accommodation and other benefits that he would not have received had he lived offsite. In fact, as already described, the applicant and his family lived on the separate six acre property given to them by Michelle’s parents in 1987. In light of that incorrect assumption, Mr Ivey struck out a substantial portion of the non-cash benefits from his table. Nevertheless, he retained $25,000 of that line item to take into account the years 1983–1986, which he had previously included, together with some further years on which the applicant had lived on the family farm which Mr Ivey had not previously been aware of. Mr Ivey’s calculation of past earnings was reduced by these adjustments to $804,060.
Mr Ivey took a different view to Mr Heath concerning the calculation of the applicant’s ‘without injury’ future earning capacity (as a farmer) through to retirement age. To project future earning capacity, Mr Heath assessed the applicant’s current earning capacity (at the date of his report) to be the applicant’s average earnings over the previous 10 years of income. Mr Ivey calculated the figure by reference to the past three years of income. Mr Ivey justified his position by reference to his knowledge and experience as an agriculturalist, arguing that the average of the immediately preceding three year period would supply a more reliable estimate of the ongoing annual earnings from the applicant’s farming operation. The three-year average was appreciably higher than the 10-year average. Mr Ivey also projected loss of future earnings through to the applicant’s age of 67 (2028) rather than 70 (2031) as Mr Heath had done.
Mr Ivey’s initial calculation, comparing the applicant’s future expected ‘without injury’ earnings (ie, discounted AWE) to his future expected ‘with injury’ earnings (as a farmer), implied that the applicant would be better off as a farmer by about $68,000, thereby reducing overall economic loss by that sum. However, Mr Ivey acknowledged that an allowance for the applicant having received the non-cash benefits was built-in to his three-year average figure which, in turn, inflated the average income. After omitting the non-cash benefits from income in the previous three years, Mr Ivey recalculated the three-year average. The result changed the $68,000 economic gain to a loss of $39,959. That figure was calculated using a 5 per cent discount figure. Using a 3 per cent discount figure, the net present value of the future loss became $42,447. Adopting that latter figure for future economic loss, we infer that Mr Ivey’s assessment of past and future economic loss was in the order of $620,000, which the judge increased to $650,000 to allow for a more generous calculation of the ‘without injury’ superannuation asset.[2]
[2]The final figure of $650,000 resulted from the judge increasing Mr Ivey’s adjusted assessment by a further $30,000 (Reasons, [183]). Presumably, therefore, the judge found that Mr Ivey’s adjusted assessment was around $620,000. In line with that presumption, our own reconstruction of Mr Ivey’s adjusted assessment having regard to the matters referred to at Reasons [176] is about $624,000.
At the hearing of the appeal, the applicant accepted that the figure which the judge ultimately adopted as Mr Ivey’s calculation of future economic loss[3] had been derived by the application of the 3 per cent discount figure, thereby disposing of proposed ground two of the appeal.
[3]Reasons, [176].

Judge’s Reasons

The judge found, inter alia, that as a result of the abuse, the applicant suffered post-traumatic stress disorder. The judge also found that the applicant satisfied a diagnosis of persistent depressive disorder, and that he has suffered episodes of major depressive disorder. The abuse led to consequent disruption of three elements which had been central to the applicant’s development, namely school life, the Catholic church community and family. Resulting psychiatric injuries had had an adverse effect on his education. Furthermore, psychological stress caused by the abuse contributed to the applicant’s alcohol use.
The judge concluded that the applicant had suffered a loss of earning capacity since leaving school at age 17. His employment from age 17 to his mid-20s was unskilled, itinerant and unproductive. Had he not been abused, the judge found that there was a very high chance that the applicant’s secondary education would have successfully prepared him for entry into the workforce, and that his work history from his late teens through to 2001 would have included more consistent, stable and higher skilled employment than in fact occurred. Further, there was at least a reasonable possibility that this would have included a trade or other non-school qualification.
However, the judge found that the evidence did not disclose any loss of capacity to work as a farmer from which any economic consequences flowed.
For reasons to be outlined below, the judge preferred the assessment of economic loss as calculated by Mr Ivey over the assessment made by Mr Heath. Taking all matters into account, the judge considered that it was appropriate to discount the past and future loss estimate made by Mr Ivey (as finally adjusted), namely $650,000, by a factor of 40 per cent to arrive at a total economic loss figure, expressed in present terms, of $390,000.
On the question of interest to be applied, the judge considered that he was bound by ‘the proper construction of s 60 of the Supreme Court Act’ and by the authority of the Court’s decision in Hardie v Herald and Weekly Times Pty Ltd (No 2),[4] to reject the applicant’s submission that interest should be awarded from the date of the cause of action. Nonetheless, he thought that interest should be calculated on the applicant’s past loss (being $175,000 for pain and suffering, and $350,000 for loss of earning capacity) at a rate of 4 per cent.
[4][2016] VSCA 130 (‘Hardie’).
Returning to the reasons why the judge preferred Mr Ivey’s assessment — which is the subject of proposed ground 1 — the judge set out six reasons:[5]
First, whether average weekly earnings, median earnings, or some other figure is used as the basis of an assessment of without injury earning capacity will depend on the facts of the particular case. In this case, it is appropriate to use a discounted average weekly earnings figure to take account of the increased chance of Mr Lonergan living in rural Victoria and not obtaining non-school education or qualifications.
Second, Mr Ivey made an appropriate allowance for non-cash benefits received by Mr Lonergan in the early years after leaving school when he was living on the farm.
Third, Mr Ivey made appropriate adjustments for the farm management deposit and instant asset write offs.
Fourth, Mr Ivey calculated 2021 earnings, and projected future farm earnings, based on an average of the previous three years. I accept Mr Ivey’s opinion, based on his knowledge of and expertise in agricultural trends and produce prices, that 2021 earnings are likely to be higher than in previous years, and that the three-year average he has adopted is a conservative assessment of farm earnings for the foreseeable future.
Fifth, Mr Ivey’s calculations were set out transparently in his report. By comparison Mr Heath’s recalculation which was undertaken from the witness box, did not take into account adjustments for the farm management deposit and instant asset write offs, and was opaque.
Sixth, Mr Lonergan expressed no clear intention about retirement. On the one hand he said he had considered retirement and discussed it with his wife. On the other he said unlike his father-in-law he would prefer to continue working rather than be in a nursing home. In the circumstances I conclude the approach to retirement age taken by Mr Ivey is reasonable.
[5]Reasons, [177]–[182].

Proposed grounds of appeal

Ground 1 (preferring Mr Ivey’s assessment)

The first proposed ground details six separate bases for why the applicant contends the judge erred in preferring the evidence of Mr Ivey over the evidence of Mr Heath. The applicant seeks to establish that, in concluding that Mr Ivey’s analysis should be preferred, the judge took into account mistaken or irrelevant considerations and thereby ‘erred’: that is, that he made specific errors or an error of a House v The King[6] nature in arriving at his factual conclusion. The claimed ‘mistaken or irrelevant’ considerations target each of the six reasons the judge gave for preferring Mr Ivey’s evidence as set out in the previous paragraph.
[6](1936) 55 CLR 499.
Each of the six bases will be addressed separately. Before commencing to do so, the first observation to be made is that the question before the judge was not which accountant should be preferred as more or less reliable or impressive. The question was, what was a fair and reasonable assessment of damages required to compensate the applicant for the loss of earning capacity caused by the abuse. As the High Court stated in Amaca Pty Ltd v Latz,[7] it is impossible to assess damages by a mere matter of mathematics: ‘[t]he process must always be one of judgment, rather than calculation’.[8] With that in mind, a number of the challenges made under this ground appear to cavil with the judge’s personal ‘preference’ for one accountant over the other on specific issues rather than the means by which the substance of the opinion might or might not lead to the conclusion that the judge’s overall assessment of economic loss was flawed.
[7](2018) 264 CLR 505.
[8]Ibid [92].
The first basis is that the judge erred by adopting a discounted average earnings figure, whereas Mr Ivey argued for using median (rather than average) earnings. This basis was a springboard for a number of criticisms. One was that the judge’s reasons for preferring Mr Ivey’s analysis in fact disclosed a disagreement with Mr Ivey’s approach. That is, whereas Mr Ivey had recommended the use of median, ultimately the judge accepted a measure calculated by reference to average weekly earnings. This criticism misunderstands the evidence. As explained at [33] above, discounted (i.e. by 23.4 per cent) average weekly earnings was the assessment proposed by Mr Ivey to represent the median of the relevant data set, in combination with other criteria.
Another criticism was to suggest that state-wide average weekly earnings was the ‘orthodox’ measure of earnings to be used in calculating economic loss for personal injury cases. This argument is without foundation. Despite the applicant pointing to cases where such a measure has been employed, there is no legal rule establishing that state-wide average weekly earnings must universally be used in determining loss of earning capacity. None of the cases cited by the applicant suggest that there is such a principle.
It is a matter of fact and evidence in each case which measure of earnings would best reflect the injured person’s likely career path, absent the relevant injury. Sometimes that measure can be estimated by reference to the earning capacity of a particular trade, profession or occupation. If that is not possible, a cruder form of estimation is to adopt an average earning rate of a person within a demographic appropriate to the injured person.
Because the applicant was injured whilst young and before entering employment, there was no identifiable trade, profession or occupation to guide the assessment. But, the judge had evidence upon which it was open to him to conclude that the appropriate demographic characteristics to attribute to the applicant, without injury, were those of a male resident in north-western Victoria who had no post-school education qualifications.
As to education qualifications, it is to be recalled that the applicant’s solicitors instructed Mr Heath to make the assumption that the applicant would have entered the workforce immediately after concluding year 12. Neither of the applicant’s siblings had post-school qualifications and there was no evidence that his academic record was particularly different to theirs. It was open to the judge to accept that it was reasonable for Mr Ivey to make the same assumption that Mr Heath had been instructed to make.
As for the geographical aspect of the demographic, there was a considerable body of evidence upon which it could reasonably be thought that the applicant would, as a matter of probability, spend his working life in north-western Victoria, whether as a farmer or in some other occupation. His family resided there; he had close childhood connections to his grandparents, aunt and uncle who lived there; his wife came from the region and, after studying in Melbourne, she preferred to return there to live and work; his parents and his wife’s parents were themselves farmers in that region and gave the applicant and his wife land in the region to live on and to farm; and, although he was not as keen as farming as his older brother, the applicant was experienced at farming from an early age. Of course, there remains the possibility that the applicant would have moved out of the north-western region to live and work, absent his injury. But, even so, it was at least open to the judge to accept that the appropriate demographic by which to assess the applicant’s future earning capacity was by reference to a male in north-western Victoria.
Finally, when assessing damages for personal injuries, average weekly earnings may be the usual yardstick in the absence of expert evidence that would justify adopting the median.[9] Here, however, the judge had the assistance of an opinion of a qualified forensic accountant that the median, rather than the average, was the more appropriate centre-point of the earnings data-set because, in the case of the applicant, it would exclude what were considered to be distorting extremes. Again, on the evidence, it was open to the judge to accept that opinion as a reasonable view.
[9]Rosniak v Government Insurance Office (1997) 41 NSWLR 608, 623–4 (Mason P), 627 (Meagher JA).
In summary, on the evidence presented it was reasonably open to the judge to conclude that the projected earnings of the applicant, without injury, should be assessed by reference to the median income of a hypothetical male, north-western Victorian who had no post-school education qualifications. An allowance of 76.6 per cent of AWE was, in Mr Ivey’s opinion, a fair representation of that hypothetical earner. In Mr Ivey’s view, that yardstick was preferable to that of the average weekly earnings of all male Victorians because it was more specifically tailored to the applicant’s circumstances.
The applicant has not demonstrated that the judge took into account any mistaken or irrelevant consideration, or otherwise made an error by preferring Mr Ivey’s assessment on this basis.
The second basis related to Mr Ivey’s use of the applicant’s non-cash benefits (such as the provision of accommodation and food, the family paying his fuel, etc.) in calculating the his actual earnings. The way in which Mr Ivey dealt with them is set out above.[10] The applicant seemed to argue that the very fact that Mr Ivey had made an error in his original calculation by including non-cash benefits from 2000 through to 2021 was a cause for doubting the credibility of his overall opinions. An ‘error’ in a factual assumption does not necessarily undermine an expert’s credibility. Mr Ivey originally applied the facts as he understood them when making his calculations; but when informed of different facts he adjusted his calculations accordingly. Apart from needing to adjust for an incorrect fact, it was not suggested that there was anything wrong, in principle, with Mr Ivey taking non-cash benefits into account as a form of remuneration.
[10]Above [31(e)],[35], [36].
The applicant also pointed to some concessions Mr Ivey made in evidence. They were that, for the purpose of making calculations, it would have been better for Mr Ivey to know what actual value benefits the applicant had received, rather than inferring what those benefits would have been. The applicant relied upon those concessions to discredit Mr Ivey’s findings and overall opinion. The second respondent identified certain documents, prepared by the applicant, which had been tendered in evidence at trial. Those documents, the second respondent argued, supplied an appropriate evidentiary basis for the judge to have accepted at least $25,000 in non-cash benefits. On their face, those documents did indicate that the applicant had received benefits of the kind and value as contended by the second respondent.
On this issue, there was a rational basis in principle for taking into account non-cash benefits; Mr Ivey deleted the amount allowed for benefits during the period that none were received and made an appropriate, consequential, adjustment to his calculation of future economic loss;[11] and there was an evidentiary basis for making an allowance of the dimension ultimately allowed, even if arrived at by a different calculation. No mistaken or irrelevant consideration has been established. In any event, the amount in question, namely $25,000, is of such a modest scale that it is not, of itself, capable of influencing whether the total economic loss award was outside any reasonable range.
[11]See above, [36].
The third basis concerned the allowance to be made for the farm management deposit and the instant asset write offs. These have already been described.[12] Mr Ivey had suggested from the outset that they should be accounted for whereas, initially, Mr Heath had not taken them into account at all. In cross examination, Mr Heath accepted they should have been. Mr Heath’s calculations of the adjustments were made in the witness box. The applicant argued that because both accountants took the two factors into account in the end, there was no reason to differentiate between them on that topic. There is no substance in this argument. Plainly, in so far as it is relevant, it was open to the judge to be more impressed by the accountant who first identified a matter that should be taken into account than the one who evidently failed to do so.
[12]See above, [28],[31(a)],[31(b)].

The fourth basis was directed to Mr Ivey’s projection of future loss based upon a three-year average and not a 10-year average.[13] Mr Ivey, who not only had accounting experience but also experience as an agriculturalist, gave quite detailed reasons why the 10-year average would not have been properly representative of the applicant’s earning capacity as a farmer as at 2021. He explained his view why a three-year average was more representative. It is unnecessary to rehearse the detail of that explanation. The applicant argued that there was no evidentiary basis for this view beyond Mr Ivey’s ‘own assertion’. Mr Ivey’s qualification to express the opinion was not challenged and his opinion was admitted as that of an expert on the subject. Whether or not another judge might have come to another view, the judge had properly admissible evidence before him which he was plainly entitled to accept, as he did. Again, there is nothing in this criticism.
[13]See above, [37].
The fifth basis concerned the judge preferring Mr Ivey over Mr Heath on a criteria of transparency when, in fact, both accountants performed a certain amount of calculation in the witness box. This argument chiefly concerned Mr Heath’s treatment of the farm deposit and asset write off adjustments, on the one hand, and Mr Ivey’s re-calculation for the adjustment to the non-cash benefits, on the other. The applicant argued that a similar observation could be made of both accountants. Even before going to the detail, this is a very weak argument.
Turning to the detail, Mr Heath’s reported calculations did not contain sufficient information to reveal whether or not he had made any allowance for the farm deposit and asset write offs — which, it turned out, he had not — and he only conceded them under cross examination. By contrast, Mr Ivey had set out in detail the manner in which he accounted for non-cash benefits. The consequence of the change to his factual assumption could be readily understood as numerical adjustments to line items in his tables, stated by him in the witness box. One was a criticism as to the relative obscurity of items that had been included in the figures; the other was a criticism about a factual assumption with a transparent numerical consequence. There is no substance to this basis of alleged error.
The sixth basis for error was that the judge had distinguished between Mr Ivey and Mr Heath on the basis of their respective opinions of the appropriate retirement age to project for the applicant. Mr Ivey had relied upon ABS expected retirement age of 66.8 (rounded to 67) for a person now 60-64 years of age and in work,[14] whereas Mr Heath had simply begun with an assumed general retirement age of 70. In examination in chief, Mr Heath was asked to state what would be the effect of allowing for retirement earlier than age 70. Unsurprisingly, Mr Heath said that it would affect the totals he had calculated. The applicant relied upon that concession as somehow assimilating his approach with that of Mr Ivey.
[14]See above, [31(d)].
The judge noted that, other than having discussed retirement with his wife, the applicant had not expressed any clear intention regarding his retirement age. In those circumstances, the judge preferred to adopt the statistically expected retirement age appropriate to the applicant’s current age. Here, what was important was the judge’s assessment of an appropriate retirement age; not his preference for one accountant over the other. There is nothing in this criticism.
In short, there is no reasonably arguable basis for contending that the judge made an error for having expressed his general preference for Mr Ivey’s assessment of the applicant’s loss of earning capacity. Leave to appeal on this ground is refused.

Ground 2 (applying the wrong discount for net present value)

As explained earlier, this ground was abandoned.

Ground 3 (error in applying a 40 per cent discount to total economic loss)

As recorded above, the judge discounted Mr Ivey’s adjusted assessment of economic loss, $650,000, by a factor of 40 per cent to arrive at the award sum of $390,000. By proposed ground three, the applicant contends that the judge was wrong to apply a

40 per cent discount to his economic loss to take account of the possibility he would have been a farmer in any event.
It is important to clarify the task that the judge was performing. As explained by the High Court in Malec v J C Hutton Pty Ltd,[15] in contrast with making a finding whether an event did or did not occur — made on the balance of probabilities — a court required to determine future or hypothetical past effects of an injury, in order to assess damages, estimates the likelihood the event would have occurred or might occur, and adjusts the award of damages to reflect the degree of probability.[16]
[15](1991) 169 CLR 638 (‘Malec’).
[16]Ibid 643 (Deane, Gaudron, McHugh JJ).
Further, the goal is to estimate the damages required to compensate for a loss of capacity to earn income which is productive of financial loss.[17] The compensable loss is not a loss of income. Strictly speaking, the calculation does not turn on a comparison between what money a person would have earned apart from the injury and what money the person will earn after the injury. Nor does it ‘depend on calculating the income from a particular career, but in calculating the damage to a capacity to carry on various careers’.[18] The selection of a particular career or other yardstick as an exemplar of potential earnings is simply a means of illuminating the worth of the capacity to earn income which has been lost.
[17]Graham v Baker (1961) 106 CLR 340, 347.
[18]State of NSW v Moss (2002) 54 NSWLR 536, 553 (Heydon JA).
The judge reminded himself of these principles.[19] His salient factual findings about the applicant’s likely career course, apart from injury, are set out above.[20] The judge also acknowledged that the yardstick selected by Mr Ivey to reflect ‘without injury’ earnings had built into it discounts against the possibility that the applicant might have worked in a major population centre, attained a non-school qualification or achieved unusually high earnings. For that reason, the judge said, ‘I have been careful… not to apply a double discount for those factors’.[21]
[19]Reasons, [196]–[197].
[20]See above, [41].
[21]Reasons, [199].
The judge then concluded as follows:[22]
I accept that as a young boy Mr Lonergan did not have a great interest in the farm and had no desire to become a farmer. However at that time Mr Lonergan’s thoughts about a career were largely unformed. There is a strong history of farming in Mr Lonergan’s family. It was Mrs Lonergan’s desire to live in the country, and she gravitated back to Ouyen in her mid-20s. Her parents were also farmers. Mr Lonergan may well have become a farmer despite his lack of childhood interest in that occupation. Because the evidence does not disclose a loss of capacity to work as a farmer from which any economic consequences flow, the possibility Mr Lonergan would have been a farmer in any event warrants a significant discount on Mr Ivey’s assessment.
The total period of past and future loss is about 49 years. I concluded that in the first 22 years, before he commenced to run his own farm, there is a high probability that but for the abuse Mr Lonergan would have earned income in line with Mr Ivey’s assessment. In the second period of 27 years the chance of earning in line with Mr Ivey’s assessment was reduced because Mr Lonergan may have become a farmer in any event. Taking all of these above matters into account I conclude the appropriate discount of the past and future loss calculations by Mr Ivey is in the order of 40%. I assess Mr Lonergan’s loss of earning capacity damages at $390,000.
[22]Ibid [200], [201].
The applicant argued that the discount of 40 per cent involved error for a variety of reasons. First, the applicant argued that the discount reduced the damages for factors that had already been taken into account when the judge adopted discounted AWE as the yardstick for comparing ‘without injury’ earnings to ‘with injury’ earnings — in other words, the judge applied a double discount.
It is significant in our view that the judge consciously reminded himself of the need to avoid discounting the damages twice for the same factor. As counsel for the second respondent submitted, saying so does not guarantee that you will not do it, ‘but it’s a very good start’. It is a good start because it means that the judge was aware that, having already discounted for the chance that the applicant would be an unusually high earner, and for factors relating to educational qualification and region, he should not include the same considerations in whatever discount he adopted to reflect the chance that the applicant would have achieved the earnings of the resulting cohort over the course of his working life.
It is incorrect, however, to construe the process the judge engaged in as applying two ‘discounts’. The first step, as we have explained, was to estimate the earning capacity the applicant possessed at the time of injury. Doing so does not involve calculating the income the applicant would have earned; but, for practical reasons, estimating some likely career path or adopting some realistic yardstick of likely future earnings is a useful starting point to make a judgment about the pre-injury earning capacity. Choosing the reduced AWE as that yardstick was what Mr Ivey thought was most realistic. For reasons already explained, the judge considered that to be an appropriate yardstick measure.
Having adopted that measure as the prediction of the applicant’s pre-injury earning capacity, the judge correctly acknowledged that, because it was neither a 100 per cent certainty nor mere speculation that the applicant would have earned at such a level over the whole of his working life between 18 and 68 years, some estimation had to be made of the chance he would have done so. Seen that way, there was no process of discounting twice. But, there is a risk that in selecting a realistic demographic cohort and discounting for the chance a person may not achieve the earnings of that cohort, the same considerations could overlap. As we said, the judge was aware of that risk. The fact that he employed the two-step process does not, of itself, mean that any double discounting occurred and we would not draw that conclusion unless something else made it apparent that he did.
Secondly, the applicant argued that the discount was to take into account the possibility that the applicant would have been a farmer in any event, and yet no evidence was produced that farmers earned less than the median earnings of males without non-school qualifications. Thirdly, the judge distinguished between the periods of time before and after the applicant became a full-time farmer in 2000, and considered that it was only the latter period that warranted a discount. Therefore, the applicant contended, the 40 per cent discount applied to the whole loss arithmetically translated to a 72.5 per cent discount of the loss attributable only to the latter period.
In our view, both of these arguments involve misconceptions. The judge noted that the total period for which loss of earning capacity was claimed was 49 years. As a matter of fact, the applicant became a full-time farmer in 2000 and will continue to be a farmer until retirement. Significantly, the evidence did not disclose any loss of capacity to earn income as a farmer for which any economic consequence flowed. Mr Ivey’s loss calculation assumed that the applicant would go on sustaining loss of income every year from 2000 to 2028 because in each of those years the applicant’s actual and projected farm earnings were and will likely be less than the discounted AWE.
Without injury, the judge considered that there was such a degree of possibility that even with injury the applicant would have been a farmer in any event — especially from about 2000 onwards after he was given farmland — that a ‘significant discount’ to

Mr Ivey’s assessment was warranted. The significant discount was warranted because had the applicant become a farmer in around 2000 even without injury, he would have suffered no loss of economic earning capacity from that time through to 2028.
It followed that the greatest chance that the applicant would have suffered no loss at all lay in the period after 2000. But it was not the case that the only risk of not achieving the discounted AWE yardstick lay in the latter period; some, albeit less, risk of that outcome also existed in the earlier period. Arithmetically, the largest component of the overall loss allowed by Mr Ivey lay in the latter period.[23]
[23]On our estimate, using Mr Ivey’s tables, nearly 70 per cent of Mr Ivey’s overall loss was attributable to the period after 2000.
In summary, the 40 per cent discount was not only referable to the chance of not achieving the discounted AWE in the latter period; to the extent the discount applied to the loss accruing in the latter period, it applied to a period when the risk of no loss was greatest; and, arithmetically, the larger component of the loss derived from Mr Ivey’s assumption that the applicant would have earned discounted AWE lay in the latter period.
Finally, to make a comparison between the discounted AWE and the applicant’s actual and projected earnings as a farmer did not require evidence that farmers’ income generally fell beneath the discounted AWE.
It follows that we reject the argument that some evidence of general farm earnings should have been produced, or that the 40 per cent discount applied disproportionately to the loss of earning capacity after 2000.
Fourthly, and finally, the applicant argued that, in any event, a 40 per cent discount grossly exceeded the 15 per cent conventionally adopted for vicissitudes and future contingencies.
It may be accepted that if all the judge was required to do in applying the final discount was to allow for the normal vicissitudes and future contingencies such as sickness, accident and unemployment, a 15 per cent discount would have been generally appropriate.[24] As already explained, that was not the only consideration the judge needed to take into account. That said, the 40 per cent discount applied by the judge necessarily incorporated usual allowance for such vicissitudes.
[24]Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, 497–8 (Dawson, Toohey, Gaudron and Gummow JJ).
Beyond allowing for such vicissitudes, it was a matter of judgment for the trial judge to make on all of the evidence what was an appropriate allowance to take into account the possibility that, across the applicant’s whole working life after 1978, his career may not have deviated very much from the actual career path he ultimately pursued (particularly being a farmer after 2000) even if he had not been affected by the abuse.
The applicant submitted that by, first, narrowing the average weekly earnings figure and, secondly, applying a further discount to the overall calculation, the judge did not appropriately allow for the possibility that, without injury, the applicant may have been one of those unusually high earners that one finds in the city, or with higher education. The applicant also argued that the judge used the benefit of hindsight to constrain the parameters of the applicant’s potential future working life and made unwarranted presumptions against him as to what his ‘without injury’ life may have been like.
Of course, as the judge acknowledged, there were signs in support of the prospect that the applicant could have achieved trade or other non-school qualifications, or developed a successful and productive career after leaving school. However, it was a question of the whole of the evidence and the exercise of judgment upon that whole. We also acknowledge the advantage the judge enjoyed in forming an impression of the applicant’s personality and disposition from having seen and heard him, and his wife Michelle, in the witness box. The value of such impressions in making the type of judgment the judge was called upon to make is not to be overlooked.
Having seen and heard the applicant and his wife, and having taken into account the lives of his family members, the preference of his wife to live in Ouyen, the applicant’s personality and disposition, and all the other factors referred to above, in our view it was well open to the judge to take the view that the Mr Ivey’s loss assessment required a ‘significant discount’ to properly reflect the applicant’s true loss of earning capacity by reason of the abuse. The judge estimated that a fair discount was 40 per cent.
In all the circumstances, the applicant has not persuaded us that the discount the judge applied could not be supported on the evidence.

Ground 4 (manifestly inadequate award for economic loss)

Arguing that the award of damages was manifestly inadequate, the applicant sought to persuade us that the figure adopted by the judge was one that no judge, acting reasonably on the evidence, could have found. The argument almost entirely proceeded from a repetition of the arguments already considered under grounds 1 and 3, ground 2 having been abandoned. The applicant argued that the cumulative effect of the errors he addressed under those grounds produced a manifestly inadequate award of damages for economic loss.
At the hearing of the application, he handed up a table of figures which was intended to support the submission that the $390,000 was outside of any reasonable range. The table set out figures relevant to an assessment of the applicant’s loss of earning capacity from highest to lowest with reference to specific documents. The first two figures (and therefore the highest) reflected Mr Heath’s initial and adjusted figures for loss. The next two amounts were said to be offers made by the respondents before and during the trial. The total judgment sum came next, followed by the pre-discount economic loss figure found by the judge. The third last figure was the $390,000 ultimately awarded to the applicant.
We were not assisted by this table. The adequacy of an award of damages is assessed by reference to the evidence and the legal principles applicable to that evidence: not the highest estimates given by a witness, offers made between the parties or arithmetical sums reached during preliminary stages in the analysis.
For reasons we have already discussed, we are not persuaded that the judge was in error in respect of any of the individual integers of the applicant’s argument towards the conclusion of manifest inadequacy. Nor, as a matter of overall judgment, are we persuaded that the award made was outside of any reasonable range on the evidence presented.

Ground 5 (error in awarding interest)

The final ground related to the calculation of interest on the award of damages.
Section 60(1) of the Act provides:
60 Interest in proceedings for debt or damages
(1)The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.
The trial judge awarded interest from the date of the proceeding (the writ) at the penalty interest rate. The applicant submitted that the trial judge should have awarded interest from the date of the wrong that occurred in the 1970s or some other time before the commencement of the proceeding.
There is no common law power to grant interest on an award of damages in tort — it arises only from statute.[25]
[25]Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520, 531 [23].

In Clarke v Foodland Stores Pty Ltd,[26] the Appeal Division of this Court concluded, in respect of s 58 of the Act (relevantly identical to the structure and terms of s 60) that ‘once good cause has been shown to the contrary’ a court may allow interest to a plaintiff for a lesser period than that marked out by the section, but not for a greater period. In Hardie[27] this court applied the same reasoning to s 60, finding that the expression ‘good cause … to the contrary’ in that section, does not permit a court to allow interest on terms more favourable to a plaintiff than those spelt out in the section.[28] The principle was endorsed by this Court again in Sahin v Victorian WorkCover Authority.[29] In short, the proposition put by the applicant is contrary to well established authority in Victoria.
[26][1993] 2 VR 382 (Fullagar, Marks and J D Phillips JJ) (‘Clarke’).
[27]Hardie [2016] VSCA 130.
[28]Ibid [13].
[29][2017] VSCA 13, [52] (Warren CJ, Beach JA, Cameron AJA).
The applicant urges this Court to depart from its previous construction of s 60 because:
(a)the text and syntax of the provision supports a construction that, where the proviso applies, the court is free to adopt a date from which interest runs that is earlier than the section provides, a construction which was adopted (in the 1980s) in respect of a cognate provision in South Australia;[30]
(b)certain aspects of the legislative history of the section supports the alternative construction;
(c)the section should be read harmoniously with recent legislation, in particular Part IIA Div 5 of the Limitation of Actions Act 1958 (inserted by the Limitation of Actions Amendment (Child Abuse) Act 2015) and the Legal Identity of Defendants (Organisational Child Abuse) Act 2018, each of which enables the institution of proceedings in respect of child abuse regardless of when the abuse occurred. So, even though the text of s 60 has remained unchanged, the altered legislative context gives rise to a different — harmonious — construction in light of those subsequent enactments; and
(d)although Clarke and Hardie at least acknowledged that the proviso may apply to the period for which interest may run, it is now appropriate to depart from these authorities and recognise that, where the proviso operates, the court may, if it thinks fit, allow interest for a greater period than the section spells out.
[30]Wheeler v Page (1982) 31 SASR 1, 4 (King CJ); Gogic v MBP (SA) Pty Ltd (1990) 53 SASR 394, 398 (King CJ).
We are not persuaded by any of these arguments to depart from these authorities.
The construction favoured in Clarke and Hardie was adopted notwithstanding the textual arguments and legislative history to which the applicant refers even if, which the respondent’s dispute, the applicant’s representation of that legislative history is correct. There is no disharmony between the recent enactments that enable proceedings for causes of action arising from injury or death founded on child abuse, on the one hand, and s 60 which governs interest on awards for damages obtained in those (and other) proceedings. There is no obvious imperative to reconstrue s 60 — which applies to any proceeding for ‘recovery of debt or damages’ — because of recent legislative enactments that only apply to proceedings for child abuse.
We see no merit in this argument. We will not grant leave to appeal in respect of proposed ground 5.

Conclusion

We will grant leave to appeal only in respect of ground 3, refuse leave on proposed grounds 1, 4 and 5, and dismiss the appeal.
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[2022] VSCA 208

28 September 2022