Teuma v CP & PK Judd Pty Ltd - [2007] NSWCA 166

NEW SOUTH WALES COURT OF APPEAL

CITATION: Teuma & Anor v C P & P K Judd Pty Ltd [2007] NSWCA 166

FILE NUMBER(S):
40711/06

HEARING DATE(S): 25/06/07

JUDGMENT DATE: 17 July 2007

PARTIES:
Matthew Christian Teuma (First Appellant)
Charles Teuma (Second Appellant)
C P & P K Judd Pty Ltd (Respondent)

JUDGMENT OF: Hodgson JA Ipp JA Basten JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4620/05

LOWER COURT JUDICIAL OFFICER: McGrowdie ADCJ

LOWER COURT DATE OF DECISION: 26/10/06, 15/09/06

COUNSEL:
S Harben SC/A Capelin (Appellants)
L King SC/P Khandhar (Respondent)

SOLICITORS:
TL Lawyers (Appellants)
Turks Legal (Respondent)

CATCHWORDS:
TORTS – NEGLIGENCE – liability – duty of care – whether first appellant had breached his duty of care to employee of the respondent – turns on own facts
REMEDIES – DAMAGES – quantification – gratuitous services – past and future domestic care – concept of ‘ordinary give-and-take’ of a marital relationship – whether services provided by injured employee’s spouse were to be classified as services additional to those as part of the mutual give-and-take of marriage – Roads and Traffic Authority (NSW) v Lolomanaia (2001) 34 MVR 249 and Matchan v Lyons (2004) 40 MVR 466 on this issue not followed – damages for provision of care of family pets – requirement of need – whether the injured employee had proved a need for such services – whether the trial judge erred in finding that, as regards one of three periods for past domestic care and future domestic care, the injured employee’s need for domestic assistance was seven hours per week
INTEREST – interest on judgment sum – whether trial judge had taken into account as a discretionary matter the claim made by the appellants that they had been prejudiced in the presentation of their defence on account of the respondent’s delay in bringing proceedings
WORKERS’ COMPENSATION – indemnification – claim for indemnity under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) – whether respondent entitled to be indemnified in respect of future payments of workers’ compensation to the injured employee up to an amount of $342,038.72 (being the capped notional damages sum of $577,334.00 minus the difference between $331,188.06 [being workers’ compensation payments that had already been made by the respondent] and $95,892.78 [being an amount time-barred by virtue of s 63(1) of the Limitation Act 1969 (NSW)]) or $246,145.94 (being the notional damages of $577,334.00 minus the payments made of $331,188.06) – whether the statute-barred amount constituted part of the capped damages sum to which the respondent was entitled from the appellants by way of indemnity and should, thus, be deducted. D

LEGISLATION CITED:
Civil Procedure Act 2005 (NSW), s 100
Limitation Act 1969 (NSW), s 63(1)
Motor Accidents Act 1988 (NSW), ss 72(1A), (2)
Uniform Civil Procedure Rules 2005 (NSW), Sch 5
Workers Compensation Act 1926 (NSW), s 64
Workers Compensation Act 1958 (Vic), s 62(1)
Workers Compensation Act 1987 (NSW), ss 151Z(1)(d), (e), (e1)

CASES CITED:
CSR Ltd v Eddy (2005) 226 CLR 1
Esso Australia Ltd v Victorian WorkCover Authority (2000) 1 VR 246
Geaghan v D’Aubert (2002) 36 MVR 542
Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263
Griffiths v Kerkemeyer (1977) 139 CLR 161
Matchan v Lyons (2004) 40 MVR 466
Nguyen v Nguyen (1990) 169 CLR 245
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Roads and Traffic Authority (NSW) v Lolomanaia (2001) 34 MVR 249
Smith v In Shoppe Pty Ltd [1976] 2 NSWLR 175
State of New South Wales (Government Cleaning Service) v Cooper (2000) 49 NSWLR 221
Sullivan v Gordon (1999) 47 NSWLR 319
Turner v George Weston Foods Ltd [2007] NSWCA 67
Van Gervan v Fenton (1992) 175 CLR 327
Victorian WorkCover Authority v Esso Australia Pty Ltd (2001) 207 CLR 520
Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207
Xpolitos v Sutton Tools Pty Ltd (1977) 136 CLR 418

DECISION:
(1) Declare that the limit of the indemnity available to the employer in respect of compensation paid by it to the injured worker, after the judgment in the District Court is satisfied, is an amount of $342,038.72, being the amount of damages less the payment made under the indemnity pursuant to the judgment of the District Court in matter no 4620 of 2005. (2) Otherwise dismiss the appeal and order the Appellants to pay the Respondent's costs of the appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40711/06
DC 4620/05
HODGSON JA
IPP JA
BASTEN JA
Tuesday 17 July 2007

Matthew Christian Teuma & Anor v CP & PK Judd Pty Ltd

Judgment

HODGSON JA: I agree with Ipp JA, except in relation to the question of the cap on liability provided by s.151Z(1)(d) of the Workers’ Compensation Act 1987. On the issue on the cap on liability, I agree with Basten JA, and I agree with the orders proposed by Basten JA.
I would add some comments on the issue of domestic care.
Have reconsidered Van Gervan v. Fenton (1992) 175 CLR 327, and having considered the judgment of Ipp JA in the present case, I am now of the opinion that the views I expressed in Roads & Traffic Authority (NSW) v. Lolomanaia (2001) 34 MVR 338 and Matchan v. Lyons (2004) 40 MVR 466; [2003] NSWCA 384 are inconsistent with reasons of four judges of the High Court in Van Gervan that either constitute the ratio of that decision, or are dicta of such weight that the Court of Appeal should follow them.
Accordingly, it now seems to me that, unless the High Court should decide otherwise, the circumstance that services needed by a plaintiff are supplied by a family member as part of the fair give and take of family life is not a circumstance that reduces damages for domestic care, even if that fair give and take is assessed on the assumption that the plaintiff is uninjured.
IPP JA:
The issues on appeal
The respondent (“the Employer”) brought proceedings in the District Court, claiming an order that the first appellant (“Mr Teuma”) and the second appellant indemnify it under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) in respect of compensation it had paid Mrs Pauline Judd.
The Employer’s claim arose out of a motor vehicle accident that occurred on 7 November 1997 when a vehicle driven by Mrs Judd struck an embankment by the side of the road, causing her to suffer serious injuries. Mrs Judd contended that the accident was caused by the negligence of Mr Teuma.
According to Mrs Judd, a prime mover and trailer (“the truck”), which Mr Teuma was driving and which the second appellant owned, caused the accident. She contended that the truck, without warning, moved to its right as she was in the process of overtaking it. To avoid a collision she swerved to her right and drove into the embankment.
By its statement of claim, the Employer claimed the sum of $323,512.99 together with interest from the appellants. At trial, it was established that the Employer, in fact, had made compensation payments to Mrs Judd of $331,188.06 and the Employer conceded that it was statute-barred from claiming $95,892.78 of the $331,188.06 from the appellants.
McGrowdie ADCJ found for the Employer. He held that Mr Teuma had been negligent and that Mrs Judd had been guilty of contributory negligence. He determined that her contributory negligence should be assessed at 15 per cent.
The judge assessed the amount of damages suffered by Mrs Judd as being $679,217.00. Allowing for contributory negligence of 15 per cent, he determined that the quantum of common law damages that Mrs Judd would have recovered, had she sued, was $577,334.00.
His Honour deducted the statute-barred payments amounting to $95,892.78 from the $331,188.06 paid as compensation and thereby arrived at a figure of $235,295.28. He ordered that the appellants pay this sum to the Employer.
His Honour assessed interest on the judgment sum of $235,295.28 at $61,204.26.
McGrowdie ADCJ found that, in determining the limit of the future liability of the appellants to indemnify the Employer under s 151Z(1)(d), the damages of Mrs Judd (which he had assessed as being $577,334.00) should not be reduced by the statute-barred $95,892.78. He held that the limit of that liability was to be determined by deducting the judgment sum of $235,295.28 from the $577,334.00 (that is, without having any regard to the statute-barred $95,892.78).
The appellants contend that the judge wrongly found that Mr Teuma was negligent. They argue that his Honour did not give adequate reasons for his finding of negligence on Mr Teuma’s part. They contend that, if Mr Teuma was negligent, Mrs Judd’s contributory negligence was substantially higher than 15 per cent. They challenge the amounts awarded in respect of domestic care and interest. They contend that the judge should have made a declaration (although none was sought) that, for the purposes of determining the extent of the appellants’ liability to indemnify the Employer under s 151Z(1)(d), the cap on that liability (constituted by the assessment of Mrs Judd’s common law damages at $577,334.00) should be reduced by the statute-barred payments of $95,892.78.
Liability
At trial, Mrs Judd testified that, on 7 November 1997, she was driving her vehicle along Mulgrave Road in Mulgrave, a suburb of Sydney, towards the intersection between that road and Curtis Road. Mulgrave Road had two single lanes, one in either direction, with a broken line dividing the two lanes. As she approached the intersection, travelling at about 55 kilometres per hour, she saw the truck ahead of her. She said that the truck pulled to the left, moved off the road and stopped. When she was about level with the rear-view mirror on the truck’s cabin, the truck began to move to the right. There had been no prior indication from the truck that it intended this manoeuvre. Mrs Judd immediately took evasive action and swerved to the right but her vehicle struck the embankment and she was severely injured.
Mr Teuma said that he was driving the truck along Mulgrave Road at about 40 to 50 kilometres per hour intending to turn right at the intersection between Mulgrave Road and Curtis Road. He said that when he was about 30 metres from Curtis Road he slowed down, indicated his intention to make a right-hand turn and commenced to manoeuvre his vehicle to the right. After he had only moved about a foot towards the right, he heard a car kick down a gear as though it were accelerating. He then saw Mrs Judd’s vehicle going into a skid for about 50 metres before it hit the embankment.
Accordingly, there was a dispute between Mrs Judd and Mr Teuma as to whether the truck had come to a complete stop before commencing its turn to the right. His Honour found that the likelihood was that the truck had not come to a complete stop but had slowed down and had, indeed, moved towards the left-hand side of Mulgrave Road before commencing its turn. He also found that it was unlikely that the truck had given any indication of an intention to turn right.
Mr Teuma contended that his Honour erred by not disbelieving Mrs Judd, in particular after rejecting her oral evidence that the truck moved off the road and stopped, and in finding, contrary to the oral evidence of both Mrs Judd and Mr Teuma, that the truck – before commencing its turn to the right – moved to the left. Mr Teuma also submitted that the finding that he had not switched on the right-hand indicator of his vehicle was against the weight of the evidence.
There was evidence before his Honour, however, on which he was entitled to rely, to the effect that the truck did not stop, slowed down, and moved to the left and, also, that Mr Teuma had not turned on his indicator lights before commencing his turn to the right.
Mr Judd (Mrs Judd’s husband) completed a claim form based on what she had told him when she was in hospital being treated for her injuries. Mrs Judd signed the claim form on 12 November 1997. According to the claim form, the truck pulled off the road and slowed down; for that reason, Mrs Judd thought that the truck was stopping. Accordingly, she moved to overtake. As she did so, the truck turned right without indicating. The claim form records, “the driver of the truck said at the accident scene that sometimes his blinker did not work”.
In the histories given prior to 2000 by Mrs Judd to her doctors, in particular to Dr Douglas Seaton, she stated that the truck appeared to be pulling over to the verge of the road (that is, to the left) and that its indicator lights were not blinking. In those histories there is no reference to the truck stopping. By 2000, however, Mrs Judd was telling the doctors that the truck had come to a stop on the left-hand side of the road.
Mr Harben SC, who, together with Mr Capelin appeared for Mr Teuma, pointed to the fact that at the time the claim form was prepared Mrs Judd was under medication, she did not assert that she had read the document, and Mr Judd testified that it was based on his “understanding of what had happened”. Further, Mrs Judd, at trial, was adamant that the truck had stopped. These points are not without force, but they are arguments better made at trial than on appeal. The weight to be attached to evidence of this kind is for the trial judge. It is not surprising that his Honour preferred the version given by Mrs Judd when she was in hospital after the accident to the one she maintained more than eight years later. This finding was open to the judge and cannot be interfered with on appeal. I would add that, in my view, it is consistent with the probabilities.
Mr Teuma testified that, after the accident, he checked the indicators on the truck because an ambulance officer had told him that Mrs Judd had asserted that they were not operating at the time he moved to the right. He said that he found the indicators to be working. Nevertheless, the evidence establishes that the proposition that the indicators were not working was not an afterthought on Mrs Judd’s part. It was open to his Honour to find that the indicators were not working and there is no basis on which this Court can alter that finding.
On Mr Teuma’s version, Mrs Judd’s vehicle was in the right-hand lane and in the act of attempting to pass the truck when he first saw it. At that stage, according to him, Mrs Judd’s vehicle was at the rear of the trailer (Mrs Judd, as I have noted, said that her vehicle was alongside the truck’s cabin when it began to move to the right). At 55 kilometres per hour, Mrs Judd’s vehicle was travelling at about 15 metres per second. The truck was travelling at about half that speed. Thus, Mrs Judd’s vehicle was gaining on the truck at about eight metres per second. The truck was 18 metres long. This meant that, if Mr Teuma’s evidence as to where Mrs Judd’s vehicle was when he commenced his turn were to be accepted, her vehicle would have been alongside the cabin within a second or two after the truck began to move to the right. Her situation, on her version, would have been even more dangerous. On whatever view one takes, it is not surprising that Mrs Judd immediately swerved to the right and lost control of her vehicle. Had she not taken avoiding action, the consequences could well have been far worse.
In my opinion, the judge’s findings as to the negligence of Mr Teuma have not been shown to be wrong.
His Honour found that Mrs Judd was guilty of contributory negligence because “[w]hen she saw the truck slow down and veer to the left it would probably have been prudent for her to have slowed her vehicle to more accurately determine and assess the situation before overtaking the truck as she did”. On this basis, the apportionment of 85 – 15 in favour of Mrs Judd was well within his Honour’s discretion. This Court should not interfere in this regard.
Mr Teuma’s written submissions asserted that his Honour gave inadequate reasons for his conclusions as to liability. This contention was not advanced orally and, in my view, there is no substance in it.
The past and future domestic care heads of damage
His Honour divided the awards in respect of past domestic care into three periods. The first period was from the time Mrs Judd was released from hospital (7 February 1998) for a period of about three months to 7 May 1998. His Honour accepted the evidence of Mr Judd that during this period he rendered domestic care services to Mrs Judd for about four hours per day. His Honour awarded $6,370.00 for this period and this award is not challenged. The second period was from 8 May 1998 to 31 December 2001. His Honour found that the level of assistance during this period dropped to about two hours per day and he awarded $46,550.00 for this period. This award, too, is not challenged.
The award in respect of the third period, from the end of December 2001 to the date of trial, is challenged. His Honour found that, by the end of 2001, Mrs Judd needed assistance only in regard to the heavier aspects of domestic work. He found that over time this need “probably diminished somewhat”, but levelled off by the beginning of 2002. Since that time, the judge found, “her need for assistance with the heavier tasks has been about one hour per day or seven hours per week”. On this basis, his Honour assessed the total figure for the third period as $30,500.00 and for future domestic assistance as $115,080.00.
The judge’s method of calculation is not challenged. The appellants, however, contend that his Honour erred in finding, in regard to the third period of past domestic care and future domestic care, that Mrs Judd’s need for assistance was one hour per day or seven hours per week.
The relevance of this finding lies in s 72(2) of the Motor Accidents Act 1988 (NSW), which provides:
“No compensation is to be awarded if the services are provided, or are to be provided:
(a)for less than 6 hours per week, and
(b)for less than 6 months.”
The judge’s finding meant that the Employer overcame the s 72 threshold.
The notice of appeal relating to the challenged awards for domestic care asserts that his Honour erred in making findings as to past and future domestic care “which were contrary to the evidence and against the weight of the evidence”.
Mr Harben contended that, from about the end of 2001, “there was no further need for domestic assistance which exceeds the threshold set out in s 72”. He submitted that the evidence did not support the judge’s finding.
As a result of the accident, Mrs Judd suffered fractured ribs, a fractured sternum, an undisplaced fracture at T12 and a compression fracture of the L1 vertebra. She also sustained a comminuted right calcanean fracture and a laceration of the left second toe. On 14 November 1997, Mrs Judd had an open reduction with bone grafting and an internal fixation of the calcaneus fracture with plate, screws and a wire. She underwent many further procedures in relation to her right ankle. The judge found that Mrs Judd “has been substantially left with a stiff right ankle” and a degree of osteoporosis in the ankle which is likely to be progressive with the passage of time. In late 1998, Mrs Judd developed symptoms in her left knee. This had been caused by the additional strain placed on her left leg because of the problem with her right leg and back.
The judge found that Mrs Judd’s permanent incapacity “flows from the severe injuries she suffered to the right ankle and also the injuries suffered to her back”.
The judge found that, at the time of the accident, Mrs Judd was “an extremely active woman”. She and her husband jointly ran a business that carried out mechanical repairs to trucks as well as an upholstering business. The judge found that her injuries caused her business and recreational activities to be severely reduced. Of course, this finding – which is not challenged - is not directly relevant to the need for domestic care, but it does establish a real loss of physical capacity.

Mrs Judd testified that, prior to the accident, she performed almost all the domestic duties in the household, despite the fact that she worked in the business from about 10.00 am and returned home at about 6.00 pm each day. The domestic work she then did was: “[c]ooking, cleaning, looking after children, lawn mowing, gardening, them sort of things.” Looking after the children is not now relevant as, by the time of the trial, her children were adults and had moved out of the family house.
Since the accident, Mrs Judd has only worked four days a week and her hours have been substantially reduced. She starts at 10.00 am and normally finishes at about 1.30 pm.
Mrs Judd’s husband testified that, at the time of the trial, he still helped his wife in several respects. He said:
“[s]he does have a lot of problems with her back, she gets immobilised with her ankle from time to time, sometimes that’s actually worse than the back.”
While she did most of the cooking, he shared in the washing up, helped with the laundry, carried the washing downstairs and sometimes helped to hang it out. He said that these are things he did not have to do in the past. He helps her to vacuum and he does all the “heavy stuff” outside. He was asked how many hours a day he was still providing services for his wife that he would not have done before. He replied:
“If you took it into account an hour and a half I suppose, quite often I go out and feed the animals and clean up the dogs [sic] mess and all that sort of thing.”
The “animals” was a reference to pets. Mr Judd said: “we always had dogs and cats and birds.” It was not apparent from the evidence what animals Mr Judd was caring for at the time of the trial.
The judge attempted to clarify this aspect of Mr Judd’s evidence. His Honour put to Mr Judd the number of hours of domestic assistance he had provided immediately after the accident and thereafter, and then asked whether that had “tapered off to about an hour and a half a day”. Mr Judd answered in the affirmative. Mr Judd said that over the last three or four years the hours he had spent in providing domestic care had reduced from “around two” to about an hour and a half. In the context of the evidence as a whole, I understand this testimony to be a reference to the extra hours of domestic services Mr Judd provided.
In cross examination, Mr Judd said that his wife did most of the cooking, he shared the washing up, she did the laundry except that he helped with the “heavier stuff” which he described as “blankets and things like that”. He said she did most of the vacuuming. Mr Judd accepted that the services he was providing for his wife were because he cared for her and that the work he was doing was part of their relationship. He was asked whether, as far as her everyday functioning went, she could “basically look after herself”. He replied:
“Well she could look after herself if she had to, sure but just you can see at times it’s a strain for her, like there are things that she did before that are now an effort and it’s not because she has gotten older, it’s just the fact that you know you can see some days she is in a lot of pain, other days she is good.”
Mr Harben sought to obtain assistance from the medical reports but, in substance, they are largely consistent with Mr and Mrs Judd’s testimony. I shall refer briefly to the aspects of the principal reports on which Mr Harben relied.
Based on an assessment of Mrs Judd undertaken in June and July 2000, an occupational therapist reported:
“Her husband performs the shopping. Her husband assists with most of the domestic tasks. He performs the shopping, puts away heavy dishes from the dishwasher and carries the washing basket to the line.”
The therapist noted that Mrs Judd’s sister had been visiting to assist her with the chores.
Dr William Bye, an orthopaedic surgeon, stated, in a report dated 25 July 2001, that Mrs Judd was able to do her normal home duties “but her husband helps with the shopping”. According to a report dated 16 May 2002 by Dr David Chapman, an orthopaedic surgeon, Mrs Judd is able to undertake her housework provided she avoids “lifting anything that is heavy”.
Mr Harben relied on Geaghan v D’Aubert (2002) 36 MVR 542 where Stein JA (with whom Handley JA and Foster AJA agreed) held that Griffiths v Kerkemeyer (1977) 139 CLR 161 services did not include the provision of care to an injured person’s pets or a hobby: see at 549 to 550, [61] to [66]. Leave was not sought to argue that Geaghan was wrongly decided and the appellants did not contend that it was. Accordingly, I do not propose to consider that question. I shall assume the correctness of the proposition upheld in that case.
I would add, however, that, consistent with the authority of Van Gervan v Fenton (1992) 175 CLR 327, for damages to be awarded for the provision of care of family pets, Mrs Judd had to prove a need for those services. The mere fact that, by reason of her injuries, Mr Judd provides care for pets that, prior to her injuries, she provided, does not establish that she is in need of those services. The concept of “need” involves more than a mere desire. Compensation for need does not encompass compensation for services that are not reasonably necessary for the plaintiff’s well-being. No evidence of such a need was led in regard to the services provided in looking after animals. I therefore consider that Mrs Judd did not prove that she had such a need. Thus, in assessing damages under this head, the time taken by Mr Judd in looking after the animals must be excluded from the time he spends in providing domestic care.
Mr Harben relied on Mr Judd’s evidence in cross-examination that he was providing domestic care for his wife as part of their relationship and because he cared for her. He submitted that the nature of the domestic care provided was part of the ordinary give-and-take of a marital relationship and did not give rise to a Griffiths v Kerkemeyer claim.
In Roads and Traffic Authority (NSW) v Lolomanaia (2001) 34 MVR 249, Hodgson JA at [45], 255 referred to the view “taken as having been expressed by a four/three majority [in Van Gervan v Fenton]” that the fact that domestic services were provided before the injuries as part of the ordinary give-and-take of domestic arrangements is irrelevant to the determination of damages for gratuitous care. His Honour said at [46], 255 that he was not certain that this was the view of a majority of the High Court, but - if it was - it was obiter only, and “would be contrary to principle”; his Honour emphasised that “the compensation must be compensation to a particular person for the economic value of that loss to that person”. Davies AJA agreed with Hodgson JA but Fitzgerald AJA expressly refrained from expressing an opinion on the issue.
In Matchan v Lyons (2004) 40 MVR 466, Hodgson JA at 468, [4] adhered to what he had said in Roads and Traffic Authority (NSW) v Lolomanaia and said:
“In my opinion, there should be no compensation in respect of domestic care that is given as part of the fair give and take of family life, although there may be compensation for the contingency that care may not be given this way in the future.”
Only passing reference was made to Roads and Traffic Authority (NSW) v Lolomanaia and Matchan v Lyons in the course of the appeal. Hodgson JA’s observations were not the subject of argument. It was not suggested that the views expressed by his Honour in these cases were incorrect. Nevertheless, as the determination of damages for domestic care is governed by the correct application of Van Gervan v Fenton, I am required to deal with the issues that these cases raise.
In Van Gervan v Fenton, the appellant (the husband) was injured to such an extent that his wife, who had been employed as a nurses’ aide, gave up work to devote herself on a full-time basis to caring for him. She needed to care for him for a very large part of the day.

In Van Gervan v Fenton, Mason CJ, Toohey and McHugh JJ observed (at 335):
“[F]airness to the provider as well as to the plaintiff requires that the plaintiff should have the ability to pay the provider a sum equivalent to what the provider would earn if he or she was supplying those services in the marketplace. It does not seem reasonable that the defendant's liability to pay damages should be reduced at the indirect expense of the provider by invoking notions of marital or family obligation to provide the services free of charge…”
Their Honours repeated with approval (at 329 to 330) the statement made in Nguyen v Nguyen (1990) 169 CLR 245 (at 261 to 262 per Dawson, Toohey and McHugh JJ) that:
“The fact that there were persons, prompted by motives of concern for the plaintiff, who were prepared to provide the services gratuitously was … not something which should diminish the damages to the advantage of the defendant.”
Their Honours observed (at 336) that the common law should seek to reduce, where possible, the uncertainty involved in the assessment of damages. Thus, it was undesirable for a court to have to take into account the uncertainties involved in finding whether care by a gratuitous provider would continue to be provided and, if so, for how long. They described this as a task of difficulty.
Their Honours held that the true basis of a claim for damages with respect to gratuitous services is the need of a plaintiff for those services, and the plaintiff does not have to show that the need is, or may be, productive of financial loss.
Brennan J was in general agreement with Mason CJ, Toohey and McHugh JJ, subject to one qualifying factor. His Honour said (at 341):
“[I]t is appropriate to omit from the list of services to be paid for by the defendant some of the time spent or some of the minor services rendered by the care provider to the plaintiff where those services would have been provided in any event as an incident of an antecedent personal relationship between them, provided the plaintiff is able to offer services to the care provider in return. If the plaintiff is unable to offer services to the care provider in return, but some pecuniary allowance would be fair compensation to the care provider for the plaintiff’s failure to do so, the plaintiff should recover as damages the capital sum representing that allowance – assuming that sum does not exceed the market value of those services provided to the plaintiff by the care provider.”
Deane and Dawson JJ observed, at 343, that the facts of the case indicated that the ordinary incidents of a stable marital relationship and the give-and-take activities of the parties to it provided a significant part of the active services and passive attendance in and about the matrimonial home which were necessary to look after the injured person’s accident-caused needs. Their Honours said, at 343 to 344:
“In assessing compensatory damages in that context, the ordinary incidents of a particular continuing relationship, such as joint activities and companionship, cannot, in our view, legitimately be seen as transformed by the injury to one spouse into ‘services’ rendered or to be rendered by the other spouse even if they obviate a need for such ‘services’ which would otherwise exist. Nor, subject to an important qualification, can domestic services which are undertaken, as part of the mutual give-and-take of marriage, by persons in a marital relationship for the benefit of one another and of their matrimonial establishment, legitimately be seen as converted into additional services necessary to attend to the accident-caused needs of an injured plaintiff in circumstances where they would have been performed in the same way and to the same extent in any event. The qualification is that such services will be taken out of the area of the ordinary give-and-take of marriage to the extent that the injuries to the wife or husband preclude her or him from providing any countervailing services. To that extent, the continuing gratuitous services provided by the spouse assume a different character and should be treated as additional services which have been or will be provided by that spouse to look after the accident-caused needs of the injured plaintiff.”
Deane and Dawson JJ observed further, at 344, that the additional services that the appellant’s wife had to provide were “very extensive”. They said that it was clearly reasonable that the appellant’s damages should be calculated by reference to those additional services. It is apparent from their Honour’s reasons that they considered that the appellant’s wife was providing services over and above the “additional” services. They were of the opinion that no damages should be awarded for those services not categorised as “additional”.
Thus, an essential difference between Deane and Dawson JJ and Mason CJ, Toohey and McHugh JJ concerned the treatment of services undertaken as part of the mutual give-and-take of marriage. According to Deane and Dawson JJ, those services were not “additional services” for which the tortfeasor would be liable to pay damages. Mason CJ, Toohey and McHugh JJ, however, were of the view that, if there was an injury-caused need for such services, the tortfeasor was liable to pay compensation by way of damages for them.
Gaudron J expressly agreed with the view of Mason CJ, Toohey and McHugh JJ that the plaintiff does not have to show that the need for domestic care is, or may be, productive of financial loss. Her Honour also agreed in the result proposed by Mason CJ, Toohey and McHugh JJ.
In these circumstances, I think the reasons of Mason CJ, Toohey and McHugh JJ and Gaudron J constitute a majority in Van Gervan v Fenton that espoused the rule that where negligently caused injuries bring about a need for domestic care, compensation will be awarded for that need even if it is not proved that the need is, or may be, productive of financial loss. In my view, the majority also concluded that damages for domestic care should not be reduced by notions of mutual obligations that are part of marital or family life, or by services provided as part of the mutual give-and-take of marriage that would have been performed in the same way and to the same extent in any event. In other words, the majority held that damages should not be limited to what Deane and Dawson JJ termed “additional services”. These findings are binding on this Court. I therefore respectfully disagree with the views expressed by Hodgson JA in Roads and Traffic Authority (NSW) v Lolomanaia.
I would also observe that in Roads and Traffic Authority (NSW) v Lolomanaia, Hodgson JA was dealing with a situation where the domestic services, the subject of the claim, were provided before the injuries were sustained. That is not this case. In this case, the care found as to an hour a day was not provided before Mrs Judd’s accident.
Moreover, Mrs Judd does not provide Mr Judd with any “countervailing services” (to repeat the expression used by Deane and Dawson JJ in Van Gervan v Fenton at 344) as her injuries preclude her from doing so. Thus, even on the minority view in Van Gervan v Fenton, the services provided by Mr Judd are capable of being regarded as “additional services” within the meaning of this phrase as explained by Deane and Dawson JJ (also at 344) .
Mr Judd testified that he was spending about an hour and a half a day, on average, in providing domestic assistance and this included the time he took feeding the animals and cleaning up after them. There was no evidence as to how long he spent in doing this. Therefore, Mr Harben submitted, it had not been proved that Mrs Judd had a need for domestic care of an hour a day, on average (that is, once regard is had to the fact that the time taken in caring for the animals must be excluded from the hour and a half per day to which Mr Judd testified).
On a common sense basis, it is unlikely that feeding pet dogs, cats and birds, would take much more than half an hour a day. This prima facie inference must stand in the absence of any cross-examination on the issue.
There is force in Mr Harben’s argument that sharing in the washing up, putting away heavy dishes from the dishwasher, helping with the laundry, carrying the washing downstairs to the washing line and helping to hang it, helping with carrying heavy things such as blankets, etc, helping with the vacuuming, occasionally helping with the shopping, and doing the “heavy stuff” outside could not amount to an average of an hour a day. But Mr Judd testified to this effect, he was not really challenged in cross-examination on the time he spent in performing these services, and the judge accepted his evidence. Not without hesitation, I consider that it has not been shown that the decision that his Honour made in this regard was wrong.

Interest

In considering the amount of interest that should be allowed on the judgment sum, McGrowdie ADCJ observed:
“The compensation paid other than the lump sum compensation totals $177,795.28. The lump sum compensation totals $57,500.00. The lump sum compensation was paid on 10 December 1999. The plaintiff claims interest on that sum at the full court rates from 10 December 1999 to 5 October 2006.”
The judge noted that the Employer commenced proceedings against Mr Teuma by way of statement of claim filed on 27 October 2005, that is, almost eight years after the injury that gave rise to the payment of compensation on 7 November 1997.
The appellants submitted to his Honour that they had been prejudiced in the presentation of their defence by reason of the Employer’s delay. The judge expressly stated that he would take the delay into account as one of the discretionary matters relevant to his decision. His Honour said that the Employer took “quite a considerable time to press its claim for recovery and … the defendant has suffered disadvantage as a result of the delay”.
His Honour concluded:
“The appropriate course I consider is to allow the plaintiff interest on monies which it has paid out and in respect of which it has been out of pocket, at the current ten year bond rate of six per cent for the lump sums which total $57,500 from 10 December 1999 to the date of hearing namely 15 September 2006. In respect of the claim for interest on the remaining sum of $177,795.28, I accept the plaintiff’s approach that interest be at only half the applicable rate. The defendants agree with this if interest is to be awarded. The result is that interest should be calculated at the rate of three per cent on $177,795.28 per annum from 27 October 1999 to 15 September 2006. The first payment of compensation made by the insurer was on 27 October 1999 and I order interest to be paid accordingly.”
According to the appellants’ notice of appeal, his Honour “failed to properly take into account the significant prejudice caused to the appellant[s] as a consequence of the delay in bringing proceedings by the respondent”.
In arguing this issue, the appellants did not contend that his Honour failed to take into account relevant material or that he took into account irrelevant material.
In my view, the way in which his Honour exercised his discretion was appropriate. He applied a reduced rate of interest for significant periods in order to compensate the appellants for delay. In my opinion, those rates were within his discretion. The appeal under this head must be dismissed.
The statute-barred amount
The notice of appeal asserts that his Honour erred in failing to make a declaration that the appellants were responsible for future payments of compensation made by the employer “only up to an amount of $246,145.94 which would have properly taken account of statute-barred amounts”.
As I have observed, McGrowdie ADCJ did not make any such declaration and there was no claim or cross-claim for such a declaration. Nevertheless, I accept that it would be helpful to the parties for a finding to be made dealing with the extent of the liability of the appellants, in the future, to indemnify the Employer against further compensation payments made by it to Mrs Judd.

As I have mentioned, the appellants claimed an indemnity in respect of all compensation payments made ($331,188.06) but, at trial, conceded that, of that sum, $95,892.78 was statute-barred. The sum ordered by the judge to be paid by the appellants to the employer was the balance of $235,295.28 ($331,188.06 less $95,892.78).
Having regard to the respective contentions of the appellants and the Employer, the issue thus arises: is the Employer entitled to be indemnified in respect of future compensation payments up to an amount of $342,038.72 (being $577,334.00 less $235,295.28) or is it only entitled to be so indemnified up to an amount of $246,145.94 (being $577,334.00 less $331,188.06)?
The sum of $577,334.00, of course, represents the quantum of damages to which Mrs Judd would have been entitled if she had sued at common law. As Campbell JA (with whom Beazley and Hodgson JJA agreed) said in Turner v George Weston Foods Ltd [2007] NSWCA 67 at [20]:
“It is correct in principle for a trial judge hearing the first application for an indemnity under s 151Z(1)(d) [of the Workers Compensation Act 1987] concerning a particular injury suffered by a worker to determine the quantum of damages to which the worker would have been entitled if the worker had sued: Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263.”
It is common ground that, of the claim of $331,188.06 made at trial by the appellants under the indemnity, $95,892.78 is time-barred by reason of the Limitation Act 1969 (NSW). Section 63(1) of that Act provides, relevantly, that on the expiration of a limitation period fixed by or under the Act:
“[F]or a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay…extinguished.”
A claim for indemnity under s 151Z(1)(d) is not a claim for damages (Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207). It is, in essence, a claim for money. Thus, by s 63 of the Limitation Act, the Employer’s right to claim $95,892.78 has been extinguished. In my opinion, that sum constitutes part of the capped damages of $577,334.00 to which the Employer is entitled from the appellants by way of indemnity. After all, it formed a portion of the Employer’s claim for a money sum alleged, in substance, to be part of that $577,334.00.
That being so, the statute-barred $95,892.78 must be deducted from the $577,334.00. Of course, that result follows not because any part of Mrs Judd’s notional claim for damages claim has been statute-barred, but because, to the extent of $95,892.78, the Employer’s claim that it, in fact, brought against the appellants for a partial indemnity under s 151Z(1)(d), has been held to have been extinguished by s 63 of the Limitation Act.
Section 151Z of the Workers Compensation Act provides, relevantly:
“(1)If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:
…
(d)if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages),
(e)if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages,
(e1)if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment”.
Sub-sections (1)(e) and (1)(e1) of s 151Z show that, whether or not the worker has obtained judgment for damages, payments made “under the indemnity” operate to reduce the extent of the liability to indemnify. That is, such payments, in effect, reduce the cap on liability to indemnify as provided by the initial assessment of the worker’s damages (as required by s 151Z(1)(d)) or the judgment for damages obtained by the worker (referred to in s 151Z(1)(e1)). Consistent with this result is the notion that, should the person by whom the compensation was paid claim from Mr Teuma an indemnity for contributions representing a portion of the worker’s damages, and be held not entitled to that claim by reason of some defence which Mr Teuma might have in respect of that claim, the aggregate of the amount of the indemnity for which Mr Teuma is liable must be reduced by the amount of the failed claim. Such a result follows by application of the principles of issue estoppel or Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).
Thus, in my opinion, by reason of the fact that the Employer’s right to claim $95,892.78 of the capped damages of $577,334.00 by way of indemnity has been extinguished, the $577,334.00 should be reduced by $95,892.78.
McGrowdie ADCJ came to a different conclusion and made a finding consistent with the Employer’s arguments in this respect. I would uphold the appeal in this regard. I would not make a declaration as none was sought. In my opinion, it is sufficient to make a finding, as I have done, that, in determining the extent of the liability of the appellants to indemnify the Employer under s 151Z(1)(d), the cap on that liability, represented by Mrs Judd’s damages (assessed as being $577,334.00) is to be reduced by $95,892.78.
I would add that the result contended for by the Employer would mean that, despite the District Court determining that it was not entitled to payment of the $95,892.78 that it had claimed and that that claim was statute-barred (and, hence, extinguished), the Employer, simply by making compensation payments that exceeded the capped limit of $577,334.00 by $95,892.78, would, nevertheless, become entitled to an indemnity in that amount. I do not think that such a result is contemplated by the legislation.

Conclusion

I propose the following orders:
(a) I would dismiss the appeal.

(b)The appellants should pay 85 per cent of the Employer’s costs of the appeal.

BASTEN JA: I agree with Ipp JA that the challenge to the findings of liability and in relation to contributory negligence should be rejected.
Subject to the comments set out below in relation to two specific issues, I also agree with his Honour’s reasons in relation to the assessment of damages.
Damages for domestic services
It was common ground between the parties that, the accident having occurred on 7 November 1997, the assessment of damages was governed by the Motor Accidents Act 1988 (NSW). That Act permitted the inclusion in an award of damages of an amount of compensation “for the value of services of a domestic nature”, which have been or are to be provided by another person to the injured person and for which the latter has not paid and is not liable to pay: s 72(1A). Under the general law, such recovery was permissible pursuant to the principles established in Griffiths v Kerkemeyer (1977) 139 CLR 161. The challenge in the present case concerned the assessment of the evidence called on behalf of the employer, as to the services provided by the husband, of a domestic nature. The principal challenge was based on the proposition that, whilst the husband indicated services which he had provided after his wife suffered injury in the accident, the evidence fell short of establishing that those services were “necessary” as a consequence of the injuries suffered by the injured worker in the accident. I agree with the analysis of the facts undertaken by Ipp JA and with his Honour’s conclusions.
There are only two issues raised by a claim for the value of domestic services. The first is whether the need for such services to be provided by another was created by the accident; the second is to establish the commercial value of those services.
In relation to the first question, the fact that such services were being provided, whether on a gratuitous or paid basis, prior to the accident, is beside the point. If the injured person requires assistance in carrying out the garbage and doing similar “heavy work” around the home, it does not matter whether she did that before the injury, whether if she did not it was done by a paid housekeeper, or was undertaken by her husband or other partner. This conclusion is to be derived from the joint judgment of Mason CJ, Toohey and McHugh JJ in Van Gervan v Fenton (1992) 175 CLR 327 at 338. The possibility that there might be some reorganisation of services as between spouses, or others living in a permanent domestic relationship, was raised by Brennan J, who was otherwise in general agreement with the joint judgment. Similar references to “the give-and-take activities of the parties” to a stable marital relationship, are to be found in the dissenting judgment of Deane and Dawson JJ. Gaudron J, in a separate judgment, came to the same conclusion, both in principle and in the result, as the joint judgment. To adopt an approach based on what may be seen as “the fair give-and-take of family life”, is to adopt the approach of the minority in Van Gervan.
In Roads and Traffic Authority (NSW) v Lolomanaia [2001] NSWCA 268, (2001) 34 MVR 249, Hodgson JA expressed a different view (with which Davies AJA agreed) at [45]-[48], but that view was obiter, as appears at [50] and was a matter on which Fitzgerald AJA reserved his opinion, at [61]. In Matchan v Lyons [2003] NSWCA 384, (2004) 40 MVR 466, Hodgson JA adhered to the views he had expressed in Lolomanaia but the other members of the Court (Palmer J, with whom Cripps AJA agreed) did not adopt the reasoning of Hodgson JA. Given my understanding of the judgment in Van Gervan, it is not open for this Court to adopt the approach preferred by Hodgson JA. I agree with the reasoning of Ipp JA on this matter.
The second point in relation to services of a domestic nature is the suggestion of the Appellant that taking steps to keep up a hobby or maintain pets is not properly covered by that head of damages. Authority in that regard is said to be found in Geaghan v D’Aubert (2002) 36 MVR 542. In that case, Stein JA, with whom Handley JA and Foster AJA agreed, discussed a claim for “care of the animals” at 548-550, [53]-[66]. In his conclusion at 550, [66], his Honour stated:
“Whichever way it is put, on a ‘needs’ basis, general damages or remoteness, it seems to me that Griffiths v Kerkemeyer does not extend to a plaintiff’s hobby and his Honour was entitled to reject the care of the animals on that basis. Nor do I believe that it would be appropriate to extend Griffiths v Kerkemeyer to cover the care of animals kept as a hobby.”
There are suggestions in the reasoning which would conflate the keeping of pets with a “hobby” in all cases. If it were necessary for the resolution of a case, I would respectfully doubt whether the ratio of Geaghan goes so far. It may be that a hobby should be understood as something involving an activity or occupation, so that if the injured plaintiff can no longer engage in the hobby, it falls into the category of activities which are no longer open and should thus be compensated as part of the diminution of the enjoyment of life, by way of general damages. Pets, by way of contrast, provide various benefits within the home and garden. If a person who is quadriplegic obtains enjoyment from listening to a canary, rather than the radio, there is no reason in principle why assistance which might extend to switching a radio on and off and changing channels, should not include feeding the canary. There is no principle which requires that a person rendered impotent by a tortious injury can only receive compensation for the bare necessities of life. The reason why the caselaw may not include reference to caring for pets is probably because it had not previously been thought necessary to require a plaintiff to distinguish between general house cleaning and cleaning up after a pet, or any similar or related distinction. Caring for pets, like caring for furniture, is an inherent part of the concept of domestic assistance, provided to a plaintiff, and does not form some impermissible extension of the kind which occurred in Sullivan v Gordon (1999) 47 NSWLR 319, overturned in CSR Ltd v Eddy (2005) 226 CLR 1. However, no final view is required, because, as Ipp JA has explained, no need, caused by the accident, for assistance with pets was established on the evidence.
Limit of liability
The issue on which I differ from Ipp JA is the proper understanding of the operation of s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW). That provision reads (and read at all material times):
“151Z Recovery against both employer and stranger
(1)If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:
…
(d)if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)”.
The Appellant’s contention is that this provision creates an indemnity with respect to all payments of compensation made by the employer, subject to a cap which is calculated by reference to the damages which might have been recovered by the worker from the joint tortfeasor. Accordingly, it was contended, where payments were made but no action was taken to recover those payments before the expiry of the relevant limitation period, the amount available for recovery under the indemnity was progressively reduced, even though no recovery of those amounts was obtained.
The construction preferred by the Respondent employer was that if payments were made in relation to which a limitation period was allowed to expire, those payments were not recoverable, but that fact did not alter the total amount which was recoverable, if the compensation payments reached that ceiling. According to the employer, the Appellant’s argument involved double deductions. In other words, as the right to recover each compensation payment lapsed, not only was recovery of that payment unavailable, but the ceiling was reduced by that amount, so that future payments would also be unrecoverable.
There are different ways of describing the practical consequences of each argument: neither has much bearing on the question of statutory construction. The proper approach is to commence with the established understanding that the statutory provision creates an entitlement in the employer to recover the amount of each compensation payment made to the worker, from the third party tortfeasor, subject to relevant defences. One defence may be that recovery is not sought until the limitation period has expired. Another defence may be that the amount recovered has already reached the limit imposed by reference to the amount of damages which the third party could have been liable to pay to the injured employee, had it been sued. Thus, a cause of action accrues with each payment of compensation: see Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520 at [18]. The payments may be allowed to accumulate, before proceedings for recovery are commenced, but the underlying legal principle does not change. As this case illustrated, a defence may be available in respect of some payments but not others. An employer may seek to recover some payments in whole, some payments in part and some payments not at all. The fact that no attempt is made to recover a particular payment or some part thereof, will not affect the defence based on the cap provided by the damages recoverable by the worker.
Suppose a case in which damages are assessed at $100,000, but compensation payments total $150,000. The recovery by the employer will be $100,000, whether some claims are irrecoverable, some are not sought to be recovered, or all are recoverable and all are sought to be recovered. The result follows from applying each particular defence in relation to each cause of action. The operation of the defence created by the cap on total recovery must, of course, be applied cumulatively, but the accumulation relates to amounts recovered, not amounts claimed nor amounts paid out by the employer by way of compensation.
Paragraphs (e) and (e1) of 151Z (set out at [85] above) do not advance the matter. They are concerned to ensure that if the third party tortfeasor in fact makes payments to the employer (under the indemnity) those payments will go in reduction of any liability the third party tortfeasor may have to the worker for damages. They do not address the issue, which is not in dispute, that payments made by the third party tortfeasor under the indemnity to the employer, must each be brought into account in order to determine when the limit imposed by the words in parenthesis in (d) has been reached. The only possible relevance of paragraphs (e) and (e1) is to remind one that even payments made under the indemnity do not literally “reduce” the limit imposed by par (d) on the amount of the indemnity, although as a matter of practical arithmetic, they may be applied in that way.
The Appellant’s argument must fail, but what follows from this conclusion? As Ipp JA has noted, the proceedings commenced by the employer merely sought a judgment for the amounts paid up to the date of hearing, together with interest. The defendants did not cross-claim and thus neither party expressly sought a declaration as to future entitlements. Nor did his Honour make a declaration as to future entitlements. On the other hand, it was necessary for the determination of the case that his Honour identify the amount of damages which the worker would have received from the defendants, had she sued for damages. The submission on behalf of the defendants (as noted by the trial judge at p 18) was that “the notional damages assessed should be reduced by the quantum of the statute barred payments”. It was in response to that contention that his Honour concluded (p 19):
“If compensation payments were to cease at this point of time, then the plaintiff has lost the right to recover the statute barred amount for all time and the unused portion of the indemnity, that is the amount up to the limit of the notional damages, cannot be utilised. If on the other hand, payments of compensation continue in the normal course of events, those further payments can be recovered by operation of the section up to the limit of the notional damages. That is how the section operates. It is the Limitation Act that renders the unused part of the indemnity useless to the plaintiffs in respect of the statute barred amount.”
Because, on any view, the limit of the indemnity had not been reached, even that conclusion was, strictly speaking, obiter because of the actual amount of the notional damages.
A declaration as to the outer limit of the indemnity in respect of future payments was made by Cummins J and in the Victorian Court of Appeal in Esso Australia Ltd v Victorian WorkCover Authority (2000) 1 VR 246 and, although not directly challenged on the appeal to the High Court, was not the subject of any adverse comment in that Court: see Victorian WorkCover Authority, 207 CLR 520 at [7]. The operation of s 151Z(1)(d) is a question of law of potential significance both to the parties and more generally. It would be appropriate for this Court, the matter having been fully argued and considered, to make a declaration reflecting the outcome of that consideration.
Interest

The issue with respect to interest arises from the fact that the trial judge allowed interest at the rate of 6% on each amount paid, from the time it was paid, within the limitation period.
The entitlement to interest arose pursuant to s 100 of the Civil Procedure Act 2005 (NSW), pursuant to which the trial judge had an unfettered discretion as to both the award of interest and the rate at which it was to be calculated: see generally, Victorian WorkCover Authority, 207 CLR 520 at [39]-[45]. The cause of action in the present case is not for personal injury, but for an indemnity: see State of New South Wales (Government Cleaning Service) v Cooper (2000) 49 NSWLR 221 at [20]; and see Xpolitos v Sutton Tools Pty Ltd (1977) 136 CLR 418, discussing s 62(1) of the Workers Compensation Act 1958 (Vic), being the equivalent of s 64 of the Workers’ Compensation Act 1926 (NSW), the forerunner of the present provision. In such circumstances, it is common practice to have regard to the rates at which interest is payable after judgment, as prescribed in Schedule 5 to the Uniform Civil Procedure Rules. However, s 100 does not itself prescribe those rates and it is generally permissible to have regard to commercial rates although it is usual to adopt a uniform rate, without reference to possible fluctuations over time: see Smith v In Shoppe Pty Ltd [1976] 2 NSWLR 175.
In the present case the trial judge adopted an interest rate of 6% which he described as “the current ten year bond rate”. Counsel for the employer suggested that this was in fact a discounted rate, and it appears that his Honour may have intended to award interest at a lower rate than otherwise, to take account of the delay in bringing the proceedings. At p 4, his Honour held that “the plaintiff did take quite a considerable time to press its claim for recovery and … the defendant has suffered disadvantage as a result of the delay in terms of its preparation for the substantive hearing”.
Although the matter may properly have been put to the trial judge on the basis that delay justified non-payment of interest, the question of prejudice to the defendant in preparing for trial would appear to be a factor of limited relevance. Once it has been accepted that a fair trial is possible and questions of liability and damage have been resolved, the discretionary power to award interest on the debts for which the defendant was found to be liable should be considered according to the conventional factors, including the fact that the plaintiff has been kept out of its money and that the defendant has had the benefit of money which it should not have retained. Interest may also serve a purpose in counteracting the effects of inflation on the value of the debt.
In my view these factors, which favour a grant of interest, should have been discounted in the present case because of the nature of the debt. The debt arose by way of statutory indemnity in circumstances where there was no prior relationship between the parties, as there would be in the usual case of a contractual or other commercial arrangement. So far as the evidence reveals, the defendant knew nothing about the claim for indemnity until served with proceedings on or about 27 October 2005, some eight years after the accident occurred. Thus, if the plaintiff was kept out of its money, it was because it never asked for it. Similarly, if the defendant had the use of it, it was in circumstances where it did not know of the claim and did not have a reasonable opportunity to provide for its contingent liability. In relation to inflation, some allowance must be made for the fact that by obtaining a late assessment of the damages suffered by the worker, the employer had the benefit of a built-in allowance for inflation in the amount of the cap on its liability.
There is doubt as to whether the trial judge took any of these factors into account. However, it would appear that some discount was intended to apply to a commercial interest rate which might otherwise have been adopted. Thus, it might have been thought, although there was no evidence in this regard, that the defendant may have been able to obtain a better return than the 6% which was allowed and that the cost of funds to the plaintiff may well have exceeded 6%. In any event, the complaint made by the Appellant is that any amount of interest was allowed. Once it is accepted that some payment of interest was appropriate, and in the absence of any alternative rate being proposed, it cannot be said that error has been demonstrated in the order made by the trial judge. Accordingly, this ground of challenge should be rejected also.
Conclusions
I would propose the following orders:
(1)Declare that the limit of the indemnity available to the employer in respect of compensation paid by it to the injured worker, after the judgment in the District Court is satisfied, is an amount of $342,038.72, being the amount of damages less the payment made under the indemnity pursuant to the judgment of the District Court in matter no. 4620 of 2005.
(2)Otherwise dismiss the appeal and order the Appellants to pay the Respondent’s costs of the appeal.

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LAST UPDATED: 17 July 2007