Supreme Court New South Wales Medium Neutral Citation: Ms P v Mr D [2020] NSWSC 1210 Hearing dates: On the papers Date of orders: 9 September 2020 Decision date: 09 September 2020 Jurisdiction: Common Law Before: Simpson AJ Decision: 1. Pursuant to UCPR r 36.16(1) the judgment of 16 March 2020 is varied by: (i) the addition to the order that the defendant pay the plaintiff's costs of "to be assessed on the ordinary basis until 12 December 2018, and thereafter on the indemnity basis"; and (ii) the deleting from the order one "$853,550" and substituting therefor "$979,550". Catchwords: JUDGMENTS AND ORDERS — amendment, variation or setting aside judgment or order — correction under slip rule – Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(1), 37.17 JUDGMENTS AND ORDERS — interest — pre-judgment interest — where difficulties in determining the period over which the plaintiff's loss accrued – determination of applicable rate of interest over several years Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 37.17 Cases Cited: Ms P v Mr D [2020] NSWSC 224 Wilkinson v Downton [1897] 2 QB 57 Category: Consequential orders Parties: Ms P (Plaintiff) Mr D (Defendant) Representation: Counsel: D Hooke SC (Plaintiff) A Williams (Defendant) Solicitors: Clinch Long Woodbridge (Plaintiff) Armstrong Legal (Defendant) File Number(s): 2017/361142 Publication restriction: Names of parties are suppressed Judgment 1. SIMPSON AJ: In 2017 the plaintiff commenced proceedings against the defendant claiming damages for torts committed against her over a period commencing in 1995 and ending in 2012. On 16 March 2020 I delivered judgment on the claim and awarded the plaintiff damages in a total sum of $853,550: Ms P v Mr D [2020] NSWSC 224. The judgment was made up of sums representing general damages (including aggravated damages), interest on general and aggravated damages, future medical and associated expenses, and past and future loss of earning capacity (including superannuation), and exemplary damages. I made orders accordingly and ordered that the defendant pay the plaintiff's costs. Not included in the award was any component for interest on exemplary damages or for damages for past loss of earning capacity. 2. By notice of motion filed on 18 March 2020 the plaintiff sought, pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 36.16 and r 36.17, correction or variation of the orders in three respects: 1. by the addition to the judgment of a sum representing an award of interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) on the damages awarded for past loss of earning capacity; 2. by an award of interest on the amount awarded for exemplary damages; and 3. by the addition of an order that the costs be assessed on the ordinary basis until 12 December 2018, and thereafter on the indemnity basis. 1. Uniform Civil Procedure Rules r 36.16(1) and r 36.17 respectively provide: "36.16(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order." "36.17 If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the Court, on the application of any party or of its own motion, may, at any time, correct the mistake or error." 1. The notice of motion was supported by an affidavit affirmed by the plaintiff's solicitor, Mr Clayton Long. Annexed to the affidavit were copies of two offers of compromise made by the plaintiff on, respectively, 12 December 2018 and 28 June 2019. 2. In respect of the claim for interest on damages awarded for past loss of earning capacity, Mr Long deposed: "It appears that the Court has overlooked those claims." 1. Both parties filed written submissions. Following receipt of the plaintiff's written submissions, the defendant conceded that the plaintiff is entitled, by reason of the offer of compromise, to the indemnity costs order that she seeks. I propose to make such an order. 2. Following receipt of the defendant's written submissions, the plaintiff withdrew her claim for interest on that component of the judgment that represents exemplary damages. 3. All that remains, therefore, is the claim for variation of the judgment by the addition of interest on the damages awarded for past loss of earning capacity. The defendant opposed such an order. The main basis for opposition appears to be that neither UCPR r 36.16(1) nor r 36.17 is engaged. 4. The plaintiff submitted (as asserted in Mr Long's affidavit) that a claim for interest had been made on her behalf and was overlooked in the quantification exercise. On behalf of the defendant objection was taken to that sentence In Mr Long's affidavit. The sentence is rejected. That a claim was overlooked is one possibility, but it does not lie within Mr Long's competence to say so. Other possibilities are that the claim was rejected (without reasons) or that interest was incorporated in the sum awarded (although that was not expressly stated). 5. The defendant did not seek to argue that either of those possibilities provided the explanation for the omission of interest on the award of this head of damages. 6. If the plaintiff is correct, and a claim was made and overlooked, UCPR r 36.17 provides a readily available avenue for correction. If no claim was made, or it was made and rejected or interest was incorporated in the sum allowed, there is no "accidental slip or omission" (other than the omission to give reasons for rejection) and r 36.17 is not engaged. 7. That leaves UCPR r 36.16(1). The defendant observed, simply, that that sub rule is of no assistance in circumstances where "it should be taken that" the notice of motion was not filed before the entry of judgment. That may be taken to be a submission that r 36.16(1) is not engaged. The defendant provided no evidence to establish the premise of that contention, that is, that the notice of motion was not filed in the time required by subr (1). 8. This submission appears to have been directed to the proposition that, if r 36.17 was not engaged, then, regardless of the reasons for the omission of an award representing interest or damages for past loss of earning capacity, the plaintiff had available to her no avenue of redress if the application was not filed before entry of judgment. That (implied) submission takes no account of subr (3A) of r 36.16, which provides: "(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered." 1. Even assuming that the orders were entered on the day of delivery of judgment (as, in the computerised system of the 21st century, it may be assumed they were) the notice of motion was filed well within the time allowed by subr (3A). In those circumstances, even if the failure to include an award of interest did not arise from an accidental slip or omission, r 36.16(1) is available, if appropriate, to permit variation of the orders. 2. The question then is whether the variation should be made, whichever power is exercised. 3. In the trial the plaintiff claimed damages under the various heads set out above. This included a detailed claim for past loss of earning capacity, based on the report of a forensic accountant, Mr Gwynne. Mr Gwynne made some calculations, based on two hypothetical factual scenarios. The evidence supported neither. 4. For reasons more fully explained in the judgment the claim was a difficult one to quantify. The causes of action relied upon by the plaintiff were assault and battery and intentional infliction of physical and psychiatric injury (see Wilkinson v Downton [1897] 2 QB 57). Four assaults were committed in 2000-2001 when the plaintiff was 15 years of age. As a consequence of one of the assaults she became pregnant and gave birth to a son. There were subsequent assaults. For 11 years following the birth of her son, the plaintiff, her son and the defendant lived together in a familial (non sexual) relationship. During that time and until shortly before trial the plaintiff had only intermittent employment. Her schooling was interrupted and terminated prematurely. One thing (among many) that made quantification difficult was the absence of any realistic basis on which to assess what qualifications the plaintiff might have acquired, what employment she might have had, and what income she might have derived but for the defendant's torts. 5. I found Mr Gywnne's report to be of limited assistance primarily because the foundational assumptions for a useful calculation were not proved. Accordingly, I assessed damages for past loss of earning capacity "in more general terms" than would ordinarily have been the case. Notwithstanding the absence of proof of the factual assumptions in Mr Gywnne's report his calculations provided some guidance for the quantification. Recourse to Mr Gywnne's report shows that those calculations did not include any component for interest. I quantified the award at $150,000. That amount expressly included superannuation. It was not expressed to include interest. 6. In written submissions provided at trial on behalf of the plaintiff no mention was made of a claim for interest on past economic loss. However, in a schedule attached to the submissions, item 8 identified such a claim, calculated at 8%. From the amount claimed, it may be calculated that the claim is for a period of 12 and a half years. That is (almost) consistent with the claim made on the present notice of motion, which is expressed to be for interest on the $150,000 awarded at 8% over a period of 12 years. No explanation has been provided, either for the selection of the rate of 8%, or for the selection of the period of 12 years. 7. Interest on awards of damages representing past economic losses is routine. The defendant has presented no persuasive argument that an award should not have been made at trial and should not be now made. The plaintiff was entitled to interest on the award of damages for past economic loss. The omission of an award of interest was not due to a considered decision to decline the claim; nor was it due to a considered decision to include interest as part of the global award made. The omission should now be rectified. 8. No opposition was expressed on behalf of the defendant for the selection of the period of 12 years over which interest is now sought. The defendant did, however, articulate opposition to the rate of interest the plaintiff now claims, which, it was argued, exceeds the average prejudgment interest rate provided for by the rules. 9. Determination of the period over which the plaintiff's loss accrued is not easy. In the judgment I found that the evidence was insufficient to establish that the plaintiff would have successfully undertaken tertiary studies and obtained employment in her chosen field of architecture or design and therefore earned income commensurately with that qualification. I nevertheless was satisfied that she would have entered the workforce in some branch of her chosen field or a related area. 10. The defendant's torts began in or about 1995 when the plaintiff was 10 or 11 but it cannot be thought that she then suffered any economic loss. Economic loss should be taken to have begun when she was 20, in 2005. Since 2008 she has some employment, although intermittent and yielding less than she might otherwise have expected. Her present work situation is such that she is still suffering ongoing economic loss. In those circumstances, there being no opposition to the selection of the period of 12 years, that represents a modest claim and should be allowed. That is not necessarily the case so far as the rate of interest claimed is concerned. 11. In 2005 the prejudgment interest rate provided for by the UCPR was 9.25%; 12 years later, in the middle of 2017, it was 5.5%. The average of those two rates is just over 7%. I propose to award interest on that basis. That results in an award of interest of $126,000. 12. The orders I make are: 1. Pursuant to UCPR r 36.16(1) the judgment of 16 March 2020 is varied by: (i) the addition to the order that the defendant pay the plaintiff's costs of "to be assessed on the ordinary basis until 12 December 2018, and thereafter on the indemnity basis"; and (ii) the deleting from order one "$853,550" and substituting therefor "$979,550". ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2020