Pasqualotto v Pasqualotto (No 4)
[2014] VSC 297
•24 JUNE 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2010 03305
| ADAM PASQUALOTTO | Plaintiff |
| v | |
| R & L PASQUALOTTO | Defendants |
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JUDGE: | BELL J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 JUNE 2014 | |
DATE OF JUDGMENT: | 24 JUNE 2014 | |
CASE MAY BE CITED AS: | Pasqualotto v Pasqualotto (No 4) | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 297 | |
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COSTS – interest payable on judgment – where previous judgment affected by legal error – error subsequently corrected on appeal and remitter – plaintiff lost benefit of judgment that should have been entered – certification of counsel’s fees – Accident Compensation Act 1985 (Vic) s 134AB(34), Supreme Court Act 1986 (Vic) s 60(1).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr A Ingram | Slater & Gordon Lawyers |
| For the defendants | Mr P Jens | Wisewould Mahony Lawyers |
HIS HONOUR:
Following my determination of the remitted questions, I must determine:
·whether and what interest is payable on the judgment sum;
·whether I or the Costs Court should certify for plaintiff’s counsel for the purposes of costs
Background
The plaintiff issued a proceeding in this court on 11 June 2010 against the defendants (his parents) claiming damages for alleged negligence and breach of statutory duty in respect of injuries suffered by him during the course of his employment by them on the family farm.
The proceeding was tried before Kyrou J and a jury of six. The verdict of the jury was given on 25 October 2011 by reference to five questions. The questions and answers given by the jury were as follows:
(1) was there negligence on the part of the defendants which was a cause of the plaintiff’s injuries?
Answer: No
(2) was there a breach of statutory duty on the part of the defendants which was a cause of the plaintiff’s injuries?
Answer: Yes
(3) if yes to questions (1) or (2), was there contributory negligence on the part of the plaintiff which was a cause of his injuries?
Answer: Yes
(4) if yes to question (3), by what percentage is it just and equitable that the damages recoverable by the plaintiff should be reduced having regard to his own share of responsibility for his injuries?
Answer: 70 per cent
(5) if yes to questions (1) or (2), what is a fair and reasonable sum to compensate the plaintiff for his past and future pain and suffering including loss of enjoyment of life and his past and future loss of earning capacity?
Answer: Pain and suffering damages $400,000
Loss of earning capacity damages $444,067
In Pasqualotto v Pasqualotto,[1] Kyrou J dismissed the plaintiff’s application for judgment to be entered wholly in his favour despite the verdict of the jury.
[1][2011] VSC 550 (27 October 2011).
Pursuant to the verdict of the jury, on 3 November 2011 judgment was entered in favour of the plaintiff by Kyrou J in the amount of $236,287.50, being the amount of the verdict of the jury ($844,067) less compensation payments of $56,442, reduced by 70 per centum for the plaintiff’s contributory negligence as assessed by the jury. The amount of $236,287.50 was thereafter paid by the defendants to the plaintiff.
The plaintiff successfully appealed against the verdict of the jury. In Pasqualotto v Pasqualotto,[2] Osborn JA (Tate JA agreeing, Whelan JA dissenting) held that, on the evidence, the jury were bound to find that the defendants had been negligent towards the plaintiff. The court set aside the jury’s answer of ‘no’ to question (1) and replaced it with the answer ‘yes’. It then remitted questions (3) and (4) for reconsideration according to law. It did not disturb the answers given by the jury to questions (2) and (5). It did not set aside the order for judgment made by Kyrou J.
[2][2013] VSCA 21 (19 February 2013).
In Pasqualotto v Pasqualotto (No 2),[3] I directed that the remitted question would be determined by a judge sitting without a jury.
[3][2013] VSC 608 (8 November 2013).
In Pasqualotto v Pasqualotto (No 3),[4] I determined the answers to the remitted questions. As to question (3), I determined that there was contributory negligence on the part of the plaintiff which was a cause of his injuries. As to question (4), I determined that the plaintiff’s contributory negligence was 20 per centum (not 70 per centum as had been determined by the jury).
[4][2014] VSC 26 (12 February 2014).
In that context, I first turn to whether and what interest is payable on the judgment which must be entered in consequence of my determination.
Interest payable on judgment
The plaintiff submits that interest should now be awarded from the date of the commencement of the proceeding to the date of the judgment entered into pursuant to the verdict of the jury, being 3 November 2011, on past loss of earning capacity only pursuant to s 134AB(34) of the Accident Compensation Act (Vic) but according to the contributory negligence assessment of 20 per centum that should have been awarded by the jury. Additionally, interest should be calculated under s 60(1) of the Supreme Court Act 1986 (Vic) from the date of the judgment entered into pursuant to the verdict of the jury to the date of my judgment. That interest should be based upon the amount of damages that the jury should have awarded in respect of loss of earning capacity, past and present, as well as pain and suffering damages, together with interest in respect of past (not future) loss of earning capacity, if the jury had correctly assessed contributory negligence at 20 per centum, less the compensation payments made and the amount paid by the defendants to the plaintiff pursuant to the verdict of the jury.
The defendants submit that the interest entitlement of the plaintiff was limited to past loss of earning capacity and was wholly subsumed in the amount paid by the defendants to the plaintiff pursuant to the verdict of the jury. Therefore, the plaintiff was entitled to no additional payment by way of interest as a result of the successful appeal and the more advantageous assessment of contributory negligence which he has now obtained from me.
The resolution of this controversy turns on the application of s 134AB(34) of the Accident Compensation Act and s 60(1) of the Supreme Court Act in the unusual circumstances of the present case, which I have described. I am not aware of any authority on point.
Section 134AB(34) of the Accident Compensation Act provides:
A court must not, in relation to an award of damages in accordance with this section, order the payment of interest, and no interest shall be payable, on any amount of damages, other than damages referable to loss actually suffered before the date of the award, in respect of the period from the date of the death of or injury to the person in respect of whom the award is made to date of the award.
Section 60(1) of the Supreme Court Act provides:
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.
In a case like the present, it is my view that s 134AB(34) of the Accident Compensation Act limits the interest that may be awarded in respect of the period beginning with the commencement of a proceeding (in this case 11 June 2010) and ending with the entry of the judgment of the jury (in this case 3 November 2011). It does not deal with the situation which arises when the court must make a later judgment to give effect to a successful appeal and reassessment of contributory negligence (and negligence). Section 60(1) of the Supreme Court Act can and should be applied when making that later judgment. In doing so, the previous judgment and the limitations applicable to that judgment must be taken into account.
The problem that arises in the present case is that the previous judgment of the court was entered pursuant to a verdict of a jury with respect to damages which was correct but the verdict of the jury with respect to contributory negligence (and negligence) was not correct. The error of the jury with respect to contributory negligence (and negligence) was corrected by the combined operation of the judgment of the Court of Appeal and my determination of the remitted questions. But the earlier judgment of the court still stands, as does the verdict of the jury with respect to damages (and breach of statutory duty).
The court on remitter is in a different position. I have to make a separate order for judgment. In the circumstances that have happened, I have to take into account that the plaintiff has lost the benefit of a judgment that he should have obtained pursuant to a correct verdict of the jury. He can be compensated for that loss by an award of interest under s 60(1) of the Supreme Court Act. The general words of that provision are perfectly apt to confer power to make an order fulfilling that purpose in cases where such compensation is called for. In my view, the plaintiff should be compensated by such an order. The specific limitations in s 136AB(34) do not apply to such a situation. Those limitations applied to the previous judgment, not this one.
I do not accept that the payment by the defendants to the plaintiff of the amount ordered in consequence of the incorrect verdict of the jury wholly deals with the entitlement of the plaintiff to interest upon judgment. This payment reflects the judgment entered consequent upon the erroneous assessment of contributory negligence (and negligence) by the jury and the application of the limitations in s 134AB(34) of the Accident Compensation Act to the interest payable in respect of damages for past loss of earning capacity identified consistently with that verdict. It does not deal with the plaintiff’s loss of the benefit of the judgment that should have been given by the jury, as now determined by the Court of Appeal and me. Only s 60(1)of the Supreme Court Act does that.
There may be different ways for compensating for that loss. If the previous judgment of the court had been set aside, it may be preferable in the present circumstances for the court to make a fresh judgment. That would involve applying the limitations in s 134AB(34) of the Accident Compensation Act to past loss of earning capacity damages from the date of the commencement of the proceeding to the date of the fresh judgment.
I do not prefer this course for a number of reasons. The previous judgment still stands. The previous verdict still stands in relation to damages and breach of statutory duty. The verdict of the jury with respect to damages would have reflected the evidence in the trial in 2011. I do not think I can simply ignore these considerations. I cannot treat the judgment as if it did not exist. An order for judgment and interest should now be made reflecting the continuing validity of so much of the verdict of the jury as was correct, the correction of so much of that verdict as was mistaken, the plaintiff’s loss of the verdict that should have been made and the payments that have been made, both as to compensation and under the previous judgment.
I therefore accept the interest calculations put forward in the submissions made on behalf of the plaintiff, as follows:
Interest on Pecuniary Loss Damages
· Jury verdict 25 October 2011 - $444,067;
· Jury verdict reduced by weekly payments of $47,252 = $396,815;
· $396,815 reduced by 20% for contributory negligence = $317,452;
· Interest is to be assessed on past pecuniary loss damages only and the plaintiff submits that it is appropriate to allow one half of the damages awarded to be in respect of the past. On this basis interest is to be on $158,726;
· Interest awarded on that past loss from the date of issue of the writ, 11 June 2010, to the date of judgment, 3 November 2011 – 1.45 years at 10.5% = $24,166;
· Judgment would have thus been entered in the sum of $341,618 being $317,452 together with $24,166 by way of interest;
· The plaintiff has been out of pocket $341,618 less the amount paid by the defendant in respect of pecuniary loss damages – assumed at $118,143 (being half the total amount paid by the defendant) = $223,475;
·Interest on $223,475 from the date of judgment on 3 November 2011 until present being 2.5 years at 10.5% = $58,662.
Interest on Pain and Suffering Damages
· Jury verdict 25 October 2011 - $400,000;
· Reduced by payments made to the plaintiff under s 98C of the Act of $9,190 = $390,810;
· $390,810 is to be reduced by 20% for contributory negligence = $312,648;
· The plaintiff would have been out of pocket for $312,648 less the amount paid by the defendant in respect of pain and suffering damages - $118,143 (being half the total amount paid by the defendant) = $194,505;
· Interest on $194,505 from the date of judgment on 3 November 2011 to the present being 2.5 years at 10.5% = $51,057.
Accordingly, the total interest claimed by the plaintiff is $58,662 plus $51,057 equals $109,719.
It is not possible to make an accurate assessment of the amount of past pecuniary loss damages in respect of which the jury made the general award of damages under that head. I must do the best I can. The plaintiff’s estimate of one half is not unreasonable and close to the amount which was the subject of the submissions made on his behalf to the jury. The figure of one half should also be used, as the plaintiff’s calculations indicate, in apportioning the defendants’ previous payment as between pecuniary loss damages and pain and suffering damages.
Accordingly, I will make an order for judgment in the following terms:
Judgment for the plaintiff in the sum of $739,819 calculated in accordance with the jury’s assessment of damages totalling $844,067 reduced by $56,442 (being the sums of $9,190 paid to the plaintiff pursuant to s 98C of the Accident Compensation Act 1985 (Vic) and $47,252 in weekly payments of compensation to be deducted in accordance with s 134AB(25) of that Act) being a sum of $787,625 and thereafter reduced by 20% on account of the plaintiff’s contributory negligence to an amount of $630,100 together with damages by way of interest in the sum of $109,719.
Costs
The plaintiff submitted that I was in as good a position as, and probably in a better position than, the Costs Court to certify for counsel, including as to the proceeding before the jury and Kyrou J. I agree. In the course of determining the remitted questions, I had to examine the whole of the proceeding very carefully. I do not accept the defendants’ submissions that the Costs Court would be better placed to make this determination. I think it would create unnecessary work for the Costs Court for me not to certify for counsel. I will so certify, in the terms sought by the plaintiff.
There will be orders for judgment accordingly.
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