Towne v Prospect County Council

[2000] NSWCA 270

CITATION:	Towne v Prospect County Council [2000] NSWCA 270
FILE NUMBER(S):	CA 41042/99
HEARING DATE(S):	29 September 2000
JUDGMENT DATE:	29 September 2000
PARTIES :	Leanne Towne - Appellant Prospect County Council - Respondent
JUDGMENT OF:	Giles JA at 1; Santow AJA at 13

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 7404/97
LOWER COURT JUDICIAL OFFICER :	Herron DCJ

COUNSEL:	D A Wheelahan QC & A Lakeman - Appellant M McCulloch & S P Glascott - Respondent
SOLICITORS:	G H Healey & Co with Graeme R Jensen, Annandale - Appellant Phillips Fox - Respondent
CATCHWORDS:	Griffiths v Kerkemeyer damages - interest on past damages - whether interest - whether slip in calculating interest - no question of principle. ND
DECISION:	Appeal allowed. Verdict and judgment for $651,350 should be set aside and in lieu verdict and judgment for $794,400 taking effect on 6 December 1999. Cross-appeal dismissed. Respondent to pay the appellant's costs of the appeal. Liberty to apply as to costs within seven days.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41042/99
DC 7404/97

GILES JA

SANTOW AJA

Friday 29 September 2000

LEANNE TOWNE v PROSPECT COUNTY COUNCIL

JUDGMENT

1    GILES JA: The appellant claimed damages for nervous shock in consequence of the death of her son. Her claim was upheld, and she received a verdict and judgment for $651,350 and an order for costs. The appellant was profoundly affected by the death of her son, such that she was effectively unable to look after her family, and a major component of her damages was Griffiths v Kerkemeyer damages.

2    The appeal is in relation firstly, to the trial judge's failure to award interest on past general damages, a failure which was obviously a slip and is acknowledged by the respondent; and secondly, the amount of interest awarded on past Griffiths v Kerkemeyer damages. There is also a cross-appeal in which the respondent contends that no interest at all on past Griffith v Kerkemeyer damages should have been awarded.

3    The appellant put her case below on the basis that her husband had given up employment to look after her and their family, and that average weekly wages should be taken as a measure of the Griffiths v Kerkemeyer damages. The trial judge noted that it was “not put to him that he should not assess the Griffiths v Kerkemeyer claim on the basis of applying average weekly wage figures”, but said that it seemed to him that he should approach the matter in a different way. He observed that all damages for personal injuries can not be the subject of mathematical equations or scientific process, and in relation to the claim for the past continued:

“But doing the best I can, I would fix upon a weekly amount of $450 and multiplying that by 500, the number of weeks involved approximately, a figure of $225,000 results. I would fix upon $225,000 as being a fair and reasonable sum to have paid for all the care which Mr Towne has given from early 1990 until the present time and I merely fix upon the figure of $450 to illustrate the way in which I have come to the total figure. Incidentally, the average wage, if one took the figures as representing the average weekly wages, would be $577 on my calculations".

4    After dealing with other heads of damages, his Honour said only outstanding matter was interest on the $225,000 which he had assigned to past care:

“ ... and as a result of the decision of Mazlic [sic] 1993 32 NSWLR 649 at 643, attracts interest. It is agreed this interest figure is $13,950.”

The reference to “Mazlic” was to Marsland v Andjelic (No 2) ( 1993) 32 NSWLR 649.

5    The appeal was concerned with the figure of $13,950. The parties had agreed that the appropriate interest rate was 6.2 per cent, half the average Supreme Court rates for the relevant period. When giving judgment his Honour said that he had been provided with two different rates of interest, 6.2 per cent and 12.4 per cent, and the solicitor for the appellant told his Honour that she understood that the lower figure was to be used to take account, as she put it in her affidavit, of “The differential between outstanding interest on gratuitous services provided at and shortly after the cause of action arose, and those provided in more recent times.” His Honour appeared to make a calculation, and said to that solicitor and the solicitor for the respondent that the interest on past domestic assistance amounted to $13,950. Neither solicitor said anything in relation to the mention of this figure.

6    In fact the figure is 6.2 per cent of $225,000 for one year, and the relevant period was 10 years. It seems to me quite clear that there was a slip by his Honour, as can happen when giving judgment ex tempore and working out the figures in the course of doing so. It was submitted for the respondent that there had been some kind of acknowledgment of the figure of $13,950 when the solicitors did not say anything after it had been mentioned by his Honour, but I can not see that there was any kind of agreement or anything else which should prevent us from giving effect to the correct position. The solicitors may well have thought that his Honour was only indicating the figure to be taken for one year, intending then to extend it to 10 years. Whatever be the position, it is understandable that they did not take up with his Honour, although perhaps they could have had there been more time for them to consider the matter, what was done about the interest.

7    In my view, therefore, and subject to the cross-appeal, the interest on past Griffiths v Kerkemeyer damages should have been $139,500. The parties are agreed (this time) on the new figure as a figure.

8    That takes me to the cross-appeal. In Marsland v Andjelic (No 2), it was held that interest was payable on past Griffiths v Kerkemeyer damages, and that a plaintiff was entitled to either compensation at the rate prevailing when the past voluntary service was provided together with interest in full from the time of its provision, or to compensation at the current gross cost of the service, in either case whether the service was paid for or not. The respondent submitted that his Honour assessed the past Griffiths v Kerkemeyer damages as compensation at the present gross cost of the service, and therefore that interest was not payable.

9    I have set out the relevant passages from his Honour's reasons. His Honour did not take up the appellant's claim based on average weekly wages, and it can readily enough be seen that his Honour may have considered that that would be overcompensation. He made it plain that he was fixing upon a fair and reasonable sum, and that the figure of $450 per week was not to be regarded as part of a genuine mathematical exercise. But his Honour did take the approach of a weekly amount, and he plainly considered that there should be interest on the resulting damages because he allowed the $13,950 as interest. He did so with reference to Marsland v Andjelic (No 2), in which the discussion on how to compute interest on past voluntary services commences at p 653 and concludes, with the two alternatives I have described, at p 654.

10    Despite the ingenious endeavours by the respondent to find something to controvert it, it seems to me that the inevitable conclusion is that his Honour took the $450 as a rough average figure, in the absence of any figures other than the figures for average weekly wages, on which he assessed compensation in respect of past voluntary services accruing over the 10 year period. That was why he allowed interest. In other words, he took the first approach in Marsland v Andjelic (No 2), an approach by which interest is payable. I do not think that the cross-appeal can succeed.

11    As to interest on general damages, it is agreed that the amount which should have been allowed is $17,500. The result is that the verdict and judgment for $651,350 should be set aside, and in lieu thereof there should be a verdict and judgment for $794,400 taking effect on 6 December 1999.

12    Because of the way in which the proceedings were conducted below, specifically the agreement on the rate of interest of 6.2 per cent, I do not think that a submission which the respondent wished to make, namely that the appropriate interest was not by regard to commercial rates but by regard to the figure of 4 per cent applied in MBP(SA) Pty Ltd v Gogic (1990-1) 171 CLR 657, can succeed.

13    SANTOW AJA: I concur.

14    GILES JA: The orders of the Court will therefore be in accordance with the result earlier indicated, and the respondent is to pay the appellant's costs. Liberty to apply as to costs within seven days.

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