SR v Trustees of the De La Salle Brothers (No 2)

[2023] NSWSC 150

Supreme Court

New South Wales

Medium Neutral Citation:

SR v Trustees of the De La Salle Brothers (No 2) [2023] NSWSC 150

Hearing dates:

14 February 2023

Date of orders:

9 March 2023

Decision date:

09 March 2023

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

1) Application under r 36.17 of the UCPR is granted.

2) The original judgment in the matter of SR v Trustees of the De La Salle Brothers [2023] NSWSC 66 will be amended.

Catchwords:

JUDGMENTS AND ORDERS — Amending or varying — Correction under slip rule

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 100

Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Cases Cited:

Cookson v Knowles [1979] AC 556

Cullen v Trappell (1980) 146 CLR 1; [1980] HCA 10

Najdovski v Crnojlovic (No 2) [2008] NSWCA 281

PP v DD (No 2) [2021] NSWSC 1312

SR v Trustees of the De La Salle Brothers [2023] NSWSC 66

Category:

Procedural rulings

Parties:

SR (Plaintiff)
Trustees of the De La Salle Brothers (Defendant)

Representation:

Counsel:
S E McCarthy (Plaintiff)

Solicitors:
Koffels Solicitors & Barristers (Plaintiff)
Carroll & O’Dea Lawyers (Defendant)

File Number(s):

2021/82884

Publication restriction:

None

Judgment

1. On 10 February 2023, I delivered judgment and published my reasons in this matter. ^[1] I entered a judgment for the plaintiff in the sum of $1,145,515.10.

   1. See SR v Trustees of the De La Salle Brothers [2023] NSWSC 66.

2. On 14 February 2023, I heard an application made by the plaintiff pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (‘UCPR’) (an application under the slip rule). Mr McCarthy appeared for the plaintiff and Mr Slattery (of Carroll & O’Dea Lawyers) appeared for the defendant.

3. The plaintiff submits that in calculating damages and entering judgment in the sum of $1,145,515.10, I overlooked two matters, being:

1. I did not include in the final table of damages set out in paragraph [252] of the judgment the amount that I had assessed for loss of earning capacity prior to 2016 (being $150,000); and

2. I failed to award interest on past loss of earning capacity in accordance with well-known and established principles.

4. The defendant accepts that item (1) was an accidental slip or omission. As I said in paragraph [228] of the judgment, “I assess the plaintiff’s loss of earning capacity up to 2016 by way of a buffer in the sum of $150,000”. This sum did not make it into the final table of damages set out in paragraph [252] of the judgment. That was an oversight on my part.

5. In the circumstances, the judgment must be amended to include that sum.

6. The defendant disputes that the absence of any allowance for interest on past loss of earning capacity falls within r 36.17 of the UCPR. In particular, the defendant submits that interest should not be allowed on the buffer component of past economic loss or that the interest should not be allowed as proposed by the plaintiff. The defendant identifies a number of reasons why this is so, being:

1. The issue of interest was a matter for submissions and judicial deliberation;

2. The question of interest is not one which can now be raised under the slip rule;

3. Allowance of a buffer is a matter of judgment which globally expresses a loss;

4. The idea of interest (and superannuation) is accommodated within the global assessment; and

5. The way in which the plaintiff has calculated interest is wrong.

7. As set out in the defendant’s written submissions, if interest is to be awarded, I should adopt the actual average retail deposit and investment rates of interest for all calculations (said to be Scenario A in the defendant’s submissions).

8. The plaintiff’s approach to interest is to calculate the total award for past economic loss, that is, $334,761.20 and apply an interest rate of 2.5% for 7 years.

9. A further issue arose as a result of the exchange of written submissions. The plaintiff suggests that Senior Counsel for the defendant expressly and unreservedly accepted the correctness of the methodology which I had applied in PP v DD (No 2) [2021] NSWSC 1312, which included interest on the buffer at a rate of 2.5%. The plaintiff submits that the unsigned submissions of the defendant dated 22 February 2023 contradict the unqualified concession made by Senior Counsel for the defendant.

10. However, Mr Watson SC responded (by email) to those further submissions disputing that:

1. The defendant’s submissions were anonymous. He says he prepared them; and

2. There was no concession regarding PP v DD (No 2) but rather, there was an agreement that the method of calculating economic loss was a valid method.

11. In circumstances in which there is a dispute as to the alleged concession (not that I am accepting there was one), I will deal with the application on its merits rather than having regard to any alleged concession.

12. Firstly, the absence of any reference to interest on past loss of income was an accidental oversight on my part. It is appropriately corrected through the proper application of legal principle.

13. In PP v DD (No 2), I considered the plaintiff’s claim for interest as follows:

“Interest

244. The plaintiff claims interest. The power to award interest on damages up to judgment is governed by s 100 of the Civil Procedure Act 2005 (NSW). Interest may be awarded from the time the cause of action arose until the date of the judgment.

245. The plaintiff is not entitled to interest as of right. An award of interest is in the discretion of the Court. The purpose of awarding interest is “to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period.”

246. Traditionally, in a claim for damages in respect of personal injury, interest is awarded in respect of past general damages and loss of income.

247. For the purposes of assessing interest on past general damages, it is necessary to notionally attribute some portion of the allowance for general damages to the past. I attribute $130,000 to the past and $70,000 to the future.

248. In Cullen v Trappell, Gibbs J explained that the plaintiff would be over compensated should interest be awarded in full, from the date of the event to the date of the judgment. His Honour referred to and approved the approach adopted by Lord Diplock in Cookson v Knowles which was to either halve the period for which interest is given at current rates or to give interest for the whole period at half the current rates.

249. Although there has been some differing views expressed as to the way in which the rate should be calculated (see, for example, Gogic at 664). the approach of halving the rate or halving the period to reflect the fact that the actual loss occurred at differing times throughout the whole period is generally adopted in NSW.

250. Although the awarding of pre-judgment interest is entirely discretionary, the Court must exercise the discretion in accordance with appropriate legal principle, that is, if interest is compensatory and the principle is to put the plaintiff back in the position that he would have been, then a plaintiff who has not had the use of his money because of the conduct of a defendant, would ordinarily be entitled to interest (absent any statutory restriction as is now found in s 18 CLA).

251. In a case such as this, interest will be significant and may inflate the judgment but the legislature has allowed these types of claims to be pursued many years after the event and interest is intended to be compensatory. It should be awarded provided that it reflects when the losses were actually sustained.”

14. As I said in PP v DD (No 2), interest is discretionary. In cases of this type (both PP v DD (No 2) and this matter involve claims for damages arising out of historical sexual assault perpetrated on the plaintiffs when they were teenagers) it is important that any allowance for interest reflects when the losses were actually sustained. In circumstances in which a buffer is awarded for a long period of loss, it may be difficult to apportion any amount of the buffer to any particular period. Further, the awarding of a buffer arises in circumstances in which the Court is satisfied that the plaintiff has suffered some loss but, because of the absence of evidence (due to the passage of time) and uncertainty as to the periods when the plaintiff might have been unfit for work, the Court cannot simply allow a weekly sum.

15. The fact that the Court has awarded a buffer for such a long period might generally suggest that no interest should be awarded on the buffer. However, in this matter, I have awarded a buffer up to a certain date; that is, 2016. I have thereafter assessed loss on a weekly basis for a period of 7 years. It follows that as at a certain date, being 2016, I have assessed the plaintiff’s total past loss at $150,000.

16. There is nothing vague or uncertain about that date. Just as the plaintiff is entitled to interest on each of the specific allowances for past loss of earning capacity from 2016, the plaintiff should be entitled to interest on the sum of $150,000 from 2016.

17. Whilst the period of the buffer ends at 2016, the period covers many years beforehand. For the reasons I advanced in PP v DD (No 2), I adopt a rate of 2.5% on the sum of $150,000. The figure of 2.5% is half the historically high rate which I averaged at 5%.

18. Different principles apply in calculating interest from 2016. That is because the rates between 2016 and 2022 were historically low. The purpose of an award of interest is to compensate the plaintiff for the fact that he did not have the use of the money during the relevant period. Adopting the approach referred to in Cullen v Trappell ^[2] and Cookson v Knowles, ^[3] the correct approach is either to halve the period for which interest is given at current rates or to award interest for the whole period at half the current rates. I will apply the average investment rate of 1.52% (as set out in paragraph [25] of the defendant’s submissions) for half the period (3.5 years).

    2. (1980) 146 CLR 1 at 19; [1980] HCA 10.

    3. [1979] AC 556.

19. On the basis that an offer involving an appropriate settlement sum (as that term is defined in s 100(5) of the Civil Procedure Act 2005 (NSW) (‘CPA’)) was made in September 2022 and on the basis that there are no special circumstances, s 100(4) of the CPA applies and interest is not to be awarded after the date of the offer of an appropriate settlement sum. The plaintiff accepts that an appropriate settlement sum was offered (I do not know the amount) but says that special circumstances exist, such that interest should be awarded even after the offer was made. Whether special circumstance exist is a matter of evaluation and impression. ^[4]

    4. Najdovski v Crnojlovic (No 2) [2008] NSWCA 281 at [7].

20. The plaintiff points to the nature of the case being pursued, the issues raised by the defendant, the timing of the offer and the short period during which it was available to be accepted (7 days). I do not accept that, in the circumstances of this case, any of these matters constitute special circumstances.

21. I reduce the period for which interest is allowed to a period of 6.75 years rather than 7 years (that is, back to September 2022).

22. Interest on the sum of $150,000 for 6.75 years amounts to $25,312.50. Interest on the amounts awarded from 2016 ($184,761.20) at 1.52% is $2,808 per year. I halve the adjusted period (3.375 years), which amounts to $9,477.

23. These figures will be added to the table of damages set out in paragraph [252] of the judgment. The amount of the judgment will thus be $1,330,304.60.

24. The orders made in the judgment will be amended to reflect this.

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Endnotes

Decision last updated: 09 March 2023