Olive v State of New South Wales

[2003] NSWSC 358

CITATION:

OLIVE v STATE OF NEW SOUTH WALES [2003] NSWSC 358

HEARING DATE(S):

9 April 2003, 24 April 2003

JUDGMENT DATE:

24 April 2003

JUDGMENT OF:

Levine J

DECISION:

1(a) General damages assessed at $167,250.; (b) Past medical expenses: $1,293.35.; (c) Future medical expenses: $111,372.; (d) Past loss of earnings: $11,800.; (e) Future loss in respect of earning capacity: $198,730.; (f) Past care: $159,000.; (g) Interest on past care: $92,000.; (h) Future care: $171,110.; (i) Legal costs in criminal matters: $24,640.; (j) Loss of superannuation: $25,418.; 2. Verdict for the plaintiff in the sum of $962,613.35 and judgment accordingly.; 3. The defendant is to pay the plaintiff's costs in respect of the preparation of his case on liability on an indemnity basis, otherwise the defendant is to pay the plaintiff's costs on a party to party basis.

CATCHWORDS:

Short minutes - interest - verdict sum

CASES CITED:

Grincelis v House (2000) 201 CLR 321
Rauk v Transtate New South Wales (2001) Aust Torts Rep 81,592

PARTIES :

EUGENE OLIVE BY HIS NEXT FRIEND YVONNE MARGARET OLIVE
(Plaintiff)

v

STATE OF NEW SOUTH WALES
(Defendant)

FILE NUMBER(S):

SC 10349 OF 2000

COUNSEL:

F Stevens
(Plaintiff)

C Webster
(Defendant)

SOLICITORS:

La Fontaine Solicitors
(Plaintiff)

I V Knight
(Defendant)

Ex tempore: revised
[2003] NSWSC 358

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

THURSDAY 24 APRIL 2003

10349 OF 2000


EUGENE OLIVE
By his next friend
YVONNE MARGARET OLIVE
(Plaintiff)

v

STATE OF NEW SOUTH WALES
(Defendant)
JUDGMENT (Short minutes – interest – verdict sum)

1 On 6 February 2003 I delivered my reasons ([2003] NSWSC 356) for awards of damages that I then made in paras [41]-[53] and which I summarised in para [56]. As at 6 February 2003 the reasons were prepared on the basis of the findings that I indicated therein, but particularly by reference to a document which Mr McIlwaine SC handed up, being a manuscript document the principal part is headed "Schedule of loss", marked MFI 1.

2 At the conclusion of the hearing the only substantive matters not covered by evidence was an issue, since resolved, as to past medical expenses, first, and, secondly, what in the normal course would flow from my award in relation to past economic loss, as I recall it, in respect of past loss superannuation. Both of those two discrete matters, now as I presently understand it, are not the subject of contention.

3 In my reasons in para [41] it can be seen by reference to MFI 1 that for the purposes of the calculation of interest on general damages an additional six months was allowed by me to that set out in MFI 1 which was no doubt prepared on not an unreasonable basis, that judgment would be delivered immediately. It is, of course, to be borne in mind if only by way of an aside that I have entered no verdict or any judgment. Technically it would be open for one side or the other, and I stress I am saying this as an aside, not a suggestion to apply to re-open.

4 The principal issues are the interest on an award made for past care, interest on the award made for legal costs in relation to criminal matters, and what I will describe as a global claim for interest resting upon the lapsed time since at least the hearing. There is, of course, the matter for an order for costs to which I will come in due course.

5 On 22 April there was faxed to me submissions for the plaintiff in relation to outstanding matters (MFI 2) and today I have had handed up a document of calculations for the defendant (MFI 3). It must be observed, at least by me, that the dispute attending these various matters is difficult to reconcile with the principle that finality is always sought to be obtained in and by litigation. With the intention of seeking the objective of finality, and having considered the matters of submissions of both sides, it seems to me that a fair and just result can be obtained as follows.

6 In relation to the award of interest on general damages originally calculated as set out in para [41] the plaintiff's entitlement can be accommodated by varying the figure I awarded in para [41] by adding, shortly stated, an extra six months to increase the allowance for interest on past general damages to $17,250 and thus the first component of the ultimate verdict will be the total sum of $167,250. Past medical expenses have been agreed at $1,293.35. Future medical expenses as per para [43] of my reasons are in the sum of $111,372. In relation to past loss of earnings the award of interest made in para [44] of my reasons will be increased by a further six months so that that component is made up of $10,261 plus interest at five percent for three years $1,939.15 bringing about the total for that component of $11,800.

7 The next component of the ultimate verdict is that referred to in para [45] being future loss in respect of earning capacity and that will be as found in that paragraph $198,730. The next component is the award for past care as set out in para [48] of the reasons for judgment $159,000. As to interest on past care it seems to me to be fundamentally clear as a matter of law that a person in the position of this plaintiff in the normal course is entitled to have awarded interest on the sum calculated see Grincelis v House (2000) 201 CLR 321 and Rauk v Transtate New South Wales (2001) Aust Torts Rep 81,592, [2000] NSWSC 2010, O'Keefe J.

8 The problem has arisen in the instant litigation by reason of MFI 1 not including in the schedule of loss, after past care, what would have been a one-line entry presumably being numbered 6.4 for interest thereon. As a matter of law the plaintiff is entitled to such interest and I propose to award it. Another way of putting it is that if a formal application were made to re-open, given the state of the law, it could hardly fail.

9 A calculation in exquisite detail known as the Rosetto calculation in the sum of $108,806 has been proffered by the plaintiff. That calculation is contained in a report of Furzer Crestani Services dated 28 March 2003 which was appended to in an earlier set of submissions to the plaintiff's fax of 7 April this year. For the defendant an approach is taken of an allowance for 11 and a half years on that sum at 5 per cent being $91,425. With a view to the finality to which I have referred, in my view, the plaintiff could not complain of a rounded up award of interest on past care of $92,000 which is the figure I propose to award.

10 The next component is future care of $171,110 as referred to in para [49]. The next component is legal costs in criminal matters as referred to in para [53], $22,000. I propose, as it seems to me conformable with legal principle, to award interest in the sum of $2,640 on those legal costs and thus the total for that component of the award is $24,640. Loss of superannuation is not in dispute and it is now $25,418. As to the global award of interest to which I refer in MFI 3 (v), the increase in the award of interest of six months where appropriate the figure I have awarded for interest on past care for 11.5 years provides proper accommodation and no additional allowance will be made. I thus set out as far as I know every figure to be added.

11 In relation to the order for costs the unusual circumstances attending the issue of litigation were the subject of observation made by me in para [54], of my reasons of 6 February. The making of an order for costs is quintessentially in my discretion. Additionally to what I remarked in para [54], absent any formal admission by the defendant on the one hand and absent any litigation on any real sense of the issue on the other, it would seem to me appropriate the plaintiff have an award costs on an indemnity basis on the issue of liability. I make the order for costs in the following terms: that the defendant is to pay the plaintiff's costs in respect of the preparation of his case on the issue of liability on an indemnity basis, otherwise the defendant is to pay the plaintiff's costs on a party to party basis.

12 I enter verdict for the plaintiff in the sum of $962,613.35 and judgment accordingly.

13 MFI 4 constitutes a bundle of correspondence, the first of which appears to be a letter from the plaintiff’s solicitors dated 30 March 2001, and the last of which appears to be a letter dated 3 May 2002. That bundle of correspondence can be characterised, subject to one component of it, at the very least as an unremarkable exchange of communications, with each side exploring whether or not the matter can be, before the hearing of the action, resolved.

14 The first letter is “without prejudice”, and is described as an offer of settlement, and insofar as it contains a sum of money, that exceeds that which became the ultimate result. Nothing arises from that letter thus affecting any order for costs I would propose to make.

15 The second and discrete matter is that the defendant, in accordance with the Rules as provided by Pt 22, made an Offer of Compromise in a sum which is essentially irrelevant. Thereafter, as I read the correspondence, there are invitations of expressions of interest in settlement, and certainly as at 3 May 2002 the plaintiff’s solicitor appears to reaffirm that which was contained in its first letter of 30 March 2001.

16 In short, the plaintiff made an offer for settlement for a sum larger than that received, the defendant made an Offer of Compromise in a sum less than that received, and in between each there was an invitation to treat from the defendant and a response from the plaintiff.

17 None of that in my view constitutes either an offer of compromise from the plaintiff or a “Calderbank” communication that commands that I make an order for costs otherwise than that which I have already made.

18 Exhibits may be returned.

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Last Modified: 05/02/2003