TILLOTT v TILLOTT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY JJA and WADDELL AJA 28 November 1990, 14 June 1991 [1991] NSWCA 266 DAMAGES — motor vehicle accident — quantum — award of pre-trial general damages and damages for loss of economic opportunity below a sound discretionary judgment — appeal argued before MPB (SA) Pty Ltd v Gogic, High Court, 26 February 1991 — rate of 4% applied to pre-trial non-economic loss — otherwise no question of principle. Mahoney JA I agree with the judgment of Waddell AJA. Priestley JA I agree with Waddell AJA. Waddell AJA This is an appeal from a decision of Associate Judge Craigie (as he then was) delivered on 8 February 1989 in the District Court in which his Honour gave judgment for the appellant in the sum of $191,281.07 damages for injuries which she received in a motor vehicle accident on 21 March 1978. The appellant was a passenger in a car driven by her husband which collided with a vehicle being driven in the opposite direction which turned across its path. The proceedings commenced on 28 February 1978. Liability was admitted. The trial took place on 6 and 7 February 1989. His Honour awarded $25,000 for past pain and suffering and loss of amenities and $45,000 for the future. He also awarded $25,000 for loss of economic opportunity to engage in employment. The appellant claims that each of these awards was below that of a sound discretionary judgment. His Honour ordered $7,500 interest on the total award for general damages. The appellant claims that he erred in law in the basis which he adopted for this calculation and that interest should also be allowed on amounts which should be assessed for past loss of earning capacity. As to general damages, the appellant accepts the award of $45,000 for future damages and submits that the award for past damages should be increased also to $45,000, making a total of $90,000, instead of $70,000 as ordered by his Honour. The course of the trial was that the plaintiff, her husband and son and daughter and her principal treating doctor, Mr Kevin Bleasel, gave oral evidence and were cross-examined. The evidence of the other doctors on whom the appellant relied and of those on whom the defendants relied was contained only in reports which were tendered as exhibits. His Honour took the view that the appellant had been inclined to exaggerate her symptoms, particularly when regard was had to two of the medical reports produced on behalf of the defendant, even though in some respects these were in conflict with the evidence of Mr Bleasel. It is, therefore, important to state the nature of the appellant's injuries and treatment as to which there is no controversy. At the time of the accident the appellant was aged 34, married, and had three children, a son born 17 March 1963, a daughter born 11 July 1966, and a son born 25 May 1973. She was in good health and engaged only in domestic activities. 2 UNREPORTED JUDGMENTS She was fond of tennis and swimming and she and her husband, whose occupation was a race caller, had an active social life. After the accident the appellant was taken to the Western Suburbs Hospital. The hospital notes record that she had a lacerated wound to the right knee and left upper eyelid, abrasions to face and left leg, and bruising to left ankle. X-rays and hourly neurological observations did not reveal any abnormalities. The wounds were sutured and pressure bandages applied. She was discharged the following day with a "head injury card". According to the plaintiff it was seven weeks before she could lie comfortably in any position. She returned home on crutches and had considerable pain in the back, leg and chest. The appellant was seen by her local doctor, Dr Scott of Lidcombe, on 23 and 29 March. He recorded that she had a fractured sternum and concussion. On the latter date he removed the sutures. He saw her on 15 April when she still had much pain in her leg, funny blotching marks over her skin which he considered to be due to nerves, and her sternum was still very sore. He had prescribed Indocid and Nemudeine. On 28 April he spoke to her on the 'phone and ordered Doloxene Co as her sternum was still sore. Dr Scott did not see the appellant again until 12 December 1978. At the instance of her solicitors, the appellant saw Dr Rose, apparently a specialist surgeon, on 9 May 1978. In his report, after describing her injuries in somewhat more detail than did Dr Scott, he expressed the view that in three months time she would have no residua from the accident. He recorded her complaints as being that she still had pain in the back of her neck, with numbness of her right upper limbs with "pins and needles" on the right side of her chest, that she could not sleep in an ordinary bed as she had pain in her chest on lying down and could not kneel because of pain in her knees, especially the right knee. He records on examination that she was limping. The appellant was seen on 12 December 1978 by Dr Scott. She said she was having much pain in her right shoulder area, was tender in the right supra-clavicular muscles, and over the sternum, and her left shoulder ached especially at night. On examination the chest muscles were still quite painful. Dr Scott saw her again on 22 March 1979 when both hips were paining and she had some pins and needles in her legs. He ordered x-rays of her hips, pelvis and lumbo-sacral area and referred her to Dr Walsh, an orthopaedic surgeon, of Auburn. In the meantime the appellant had again seen Dr Rose, at the instance of her solicitors. He recorded that she said that she still had "pins and needles" in her arms, her right arm tended to become numb when ironing and she dropped the iron so that she had had to have an ironing woman. She still got occasional pain in the back of her neck, but thought this was improving, she could not play tennis or swim because of the numbness of her right arm and still had some swelling of the left foot. He expressed the view that the appellant was gradually improving although not as speedily as he had hoped and that it would be at least another six months before her symptoms disappeared. Dr Walsh saw the appellant on 26 March 1979. He noted on examination that she had good movements of her neck and lumbar spine, was tender on compression over the chest, her straight leg raised was 90 and reflexes were brisk and normal and that she was tender over the L5 spine. The x-rays show a transitional vertebra at S1, otherwise no abnormalities. He expressed the view that it was not unusual for symptoms to persist for so long and arranged a course of physiotherapy and suggested she might benefit from manipulation under URJ TILLOTT v TILLOTT (Waddell AJA) 3 anaesthetic and that her prognosis was fair. He arranged physiotherapy. He saw her again on 27 April, 25 May, 24 July and 3 September 1979 and said that over this period the appellant had improved. On the last review she complained of pain in her left leg with numbness which had come on ten days before. Examination then revealed some restriction of straight leg raise and a slightly depressed ankle jerk. He felt that she had some disc lesion in her lumbar spine indirectly related to the injury. So far as the strain of her neck was concerned, she was recovering slowly and prognosis was good, although symptoms sometimes persisted for a year or two. Dr Walsh saw the appellant on 7 February, 13 October 1980, 3 March and 26 June 1981. Over this period she continued to complain of pain in her neck and in her back and on 24 March 1981 he carried out a manipulation of her cervical spine and lumbar spine, obtaining a full range of motion with release of adhesions. On 26 June 1981 she was still complaining of pain in her back and neck with some improvement following manipulation. She had been using a brace for her back and this had helped her as well. On examination she had good movements but both ankle jerks were depressed, she was tender over the L4-5 spine and there was a stocking hypoaesthesia in the left lower limb. His opinion was that she had persistent symptoms from a musculoligamentous strain of her neck and back and he arranged a further course of physiotherapy. Prognosis was fair and he expected symptoms gradually to resolve with time. However, contrary to this expectation the appellant's condition gradually worsened. On Boxing Day 1981 she collapsed at home and was admitted to St Vincents Hospital on 29 December where she was treated by Mr Bleasel. A lumbar myelogram was performed which showed that there was amputation of the nerve route at L5-S] on the right as well as some posterior protrusion at L4-5 and LS-S]. An epidural injection was given on 31 December in an attempt to reduce her back pain. In his evidence Mr Bleasel said that this was a conservative treatment. The appellant was discharged on 11 January 1982 but readmitted on 25 January until 30 January for physiotherapy. The appellant saw Dr Scott on 31 August 1982 when she said her left leg always felt dead. She was to see Mr Bleasel in three weeks. On examination the left leg was half an inch less than around the right leg and she was wondering whether he could suggest that she continue physiotherapy which seemed to give her some relief. Dr Scott asked her to continue physiotherapy until she was Mr Bleasel. Dr Scott saw her again on 30 December 1982 and in January 1983 when she told him that her back was playing up again and causing her a lot of pain and he prescribed some tablets to relieve this. The appellant saw Mr Bleasel on 20 September 1982 with her husband. He had seen her previously on two other occasions and had referred her for physiotherapy. In his report, after recording her history, he stated that her present symptoms were a sequel of the injury and that over the past year she had noticed no improvement and that, in fact, her activities were much more restricted, she could not stand for long, she could not sit properly and that this was evident in his rooms and she tended to sit sideways on a chair. Recently she had noticed left shoulderblade pain and soreness in the left thumb. He said that there was no indication that she was improving in any way and that the prognosis for the future looked very bad indeed. He expressed the view that her overall capabilities had been reduced by about 50%. 4 UNREPORTED JUDGMENTS At the request of the respondent's solicitors, the appellant saw Dr David Cropley, a consultant surgeon, on 13 December 1982. His report states that following the appellant's initial consultation with Mr Bleasel at St Vincents Hospital her physiotherapy treatments had been twice a week with frequent periods of heat and traction which had improved the cramps in her legs. His notes of examination include that the appellant appeared to have numbness and lack of appreciation of light touch and pin-prick over the whole of the left buttock and left outer half of the thigh and calf and the outer side of the foot on the left leg. This, he said, was anatomically consistent with compression of the nerve roots of the fifth lumbar and first and second sacral nerve roots. He concluded that she may well need surgery for total relief of her condition. The appellant saw Mr Bleasel on 28 June 1983. His report states as follows: "T saw Mrs Robyn TILLOTT and her husband 28th June, 1983. Her symptoms have not changed. In fact, she and her husband feel that she is more restricted and that she is in more pain. She can do very little at home. She cannot make beds. Her husband said that she crawls about on her hands and knees trying to do this. She cannot cook. She cannot do ironing, but she does battle to get washing on the line but it takes her three hours to get a small load hung out. She said that she fuels 101 and is very sad and depressed about herself. During the night she gets up out of bed, the first time usually after being in bed for an hour and this in and out of bed is repeated during the night. As a consequence, she is always tired. She cannot shop alone but she goes along to help if she can. She cannot sit for long so she does not go to the races any more. She cannot drive to dinner parties or the movies. She used to make her own clothes but she cannot do this because of the pain. A gastric upset prevented her from taking tablets, so she rests as much as she can and wears a corset almost always. She sees Paul Kelly, Physiotherapist, twice a week. To obtain some exercise she walks about half a mile at night but she has had to abandon swimming because of pain in the back and cramps in her legs. Her left calf is 1 cm less in circumference, but it looks thinner due to the loss of tone. The ankle jerk is much reduced. There is no doubt she is in genuine pain, but the long period of disability and the completely upturned life is causing her to become miserable and depressed. There has been recent work indicating that anti-depressants can help in the endogenous morphine production in patients with chronic pain where these supplies within the body have been depleted and, for this reason, I have started her on an increasing dosage of Tolvon to see if this will reduce her pain." Apparently the appellant continued to see Mr Bleasel from time to time. On 13 November 1985 she was admitted to St Vincents Hospital where a laminectomy and spinal fusion of the lumbo-sacral region was performed by him and Mr Robertson on 14 November. She was not discharged until 30 December 1985. According to the appellant's evidence, after this procedure all the type of heat pain and the sharp pain in the hips and groin and that region just vanished. Also, her leg which had been just going from underneath her became more stable but she still had left leg pain. The procedure involved a battery rod being placed in her back. On 4 June 1986 she was again admitted to St Vincents where Mr Robertson removed the rod and she was discharged on 10 June. After this procedure she felt better as a person than she had since the accident. Although she URJ TILLOTT v TILLOTT (Waddell AJA) 5 couldn't do the things she had done previously she could walk to the shop and knew she wasn't going to fall and she didn't have the continuous burning that previously had got her down to such a pitch that she could scream. She was not, however, able to do any domestic work of any significance. Some six weeks before Christmas 1987 the appellant's left leg started to become floppy and extremely painful. She didn't associate this with her back although she had intense back pain which she attributed to the way in which she had to walk. She saw Mr Robertson and he had her admitted to St Vincents Hospital on 15 January 1988. Mr Bleasel saw her there. His report states: "Her condition had deteriorated considerably. She was walking with a very bad limp dragging her left foot. Her pain had been extremely severe with a bad left sciatica since December in fact she said that the pain had increased sharply six weeks before Christmas. It was the same as her original pain but she had earlier been marginally better than this. When I examined I was surprised to see the degree of weakness of her left foot which she could not dorsi-flex at all and her limp was in large part due to the fact that the short pelvic muscles the gluteus medius and others supporting the pelvis were very weak so that standing on her left leg the right side of the pelvis dropped. A myleogram was carried out which showed a rounded defect at L4-L5 and I operated on the 18/2/88. A completely separated fragment of disc was found and removed decompressing the nerve root. I reviewed her on the 6/5/88 and she still is in pain with bad back pain and pain in the right leg as far as the knee but some pain often descends to the foot where cramping can occur. Her spine is tilted over to the left because of the necessity to balance the weak pelvic support muscles and this gives her a reason for extra back pain. The left foot is extremely unsteady even wearing her supporting leg braces and toe-raising spring. She said that she has difficulty with every activity and said that when using the toilet her whole left leg becomes weak and she can hardly stand. She walks very badly, there is a noticeable drop of the pelvis as she walks and of course the foot is most unsteady unless supported by her splint. There is some tenderness of the wound which I think is simply a subcutaneous suture but not an infection. Tibialus anterior muscle contracts strongly which pulls the foot into an inverted position weakening the ankle but there is some small contraction of these ankle everter muscles and I hope this will gain in strength. There is no power whatever in the dorsi-flexors of the big toe. She is profoundly disabled and in order to cope with this she and her husband have moved to a house where there are no steps although it is by no means the kind of house that she would like to be in but there seems to be no alternative. She copes with very little at home but fortunately she has a very positive attitude and is determined to get better if she possibly can." The hospital notes state the diagnosis as "ruptured lumbar disc" and that a therapeutic epidural was performed on 21 January 1988. In his oral evidence Mr Bleasel attributed the fracture to increased stress placed on the disc, which had been damaged in the accident, by the fusion which had been effected above it. He said that when such an acute instance occurs, as it did in the case of the appellant, with a sudden onset of paralysis, it was, in his experience, very rare that recovery occurs. He said that there seemed to be a direct cause and effect relationship between the appellant's condition and the motor vehicle accident. 6 UNREPORTED JUDGMENTS After her discharge on 6 March 1988 from the hospital, the appellant developed a left foot drop and inversion of that foot. A calliper was fitted to her left leg which has a foot drop stop which helps to passively control the drop. This is to be attributed to a neurological deficit. In his oral evidence Mr Bleasel said that it was customary to wait about eighteen months in the hope that recovery will follow but that it was most unlikely and he hadn't seen any evidence of it over the year before the trial. Mr Robertson, who was a treating doctor for the procedure, says in a report dated 17 May 1988 that the procedure left the appellant with a foot drop and a tendency for the foot to invert due to lack of opposing muscle power. In a report of December that year he said that the appellant had noticed no improvement in the power of her left foot and ankle and that in general her symptoms were a little worse with a deader and heavier sensation in her left leg, a tight sensation which she described, which radiated up as far as her back and no improvement in muscle power and that she found sleep difficult because of persistent back pain. On examination, her gait showed weakness of her left hip abduction which, it appeared, was influencing the amount of back pain she had. She had restriction of straight leg raising with a very strong tibialis anterior inverting the foot with absent inversion and dorsiflexion. He said there had been no sign of recovery from the nerve roots in the ten months since surgery, that it was necessary for the patient to wear a calliper to give some stability to her foot and that, although no orthopaedic surgery was indicated at that time, consideration might have to be given to some form of stabilising procedures when further recovery of her neurological deficit appeared to be unlikely. That report was, of course, only shortly before the trial. In his examination and cross-examination Mr Bleasel gave details of the reasons why he said in his last report that the appellant was profoundly disabled. Some of the defendant's doctors suggest in their reports that some of the symptoms described by the appellant indicated hysteria but in cross-examination Mr Bleasel was firm in attributing these symptoms to organic reasons. He said that he had been concerned that there might have been an anxiety overlay and had discussed this with Mr Robertson on a number of occasions but every time came back to the feeling that the appellant was, in basic terms, in genuine distress, that she was, in fact, genuine and genuinely disabled. He pointed out that clinical examination does not compare with someone's attempted use of a limb which can point out difficulties that you cannot detect on simple muscle testing. He said that he had seen the appellant over many years and did not feel that she was consciously manipulative. He expressed the view that the appellant was unemployable, that she had pushed herself to overcome her disabilities and said that he was not optimistic that the decision in the court case would have any beneficial effect. He referred to the fact that the appellant has continuing physiotherapy to try and improve the condition of her left leg and foot. He firmly expressed the view that the disability in her left leg was totally organic, and that she had an abnormal back and was "entitled to back pain". In the light of the medical evidence mentioned above there seems no reason to doubt the accuracy of the basic evidence of the appellant of her disabilities from the time of the accident onwards. She suffered considerable pain from the injuries received in the accident. It was nearly eight weeks before she could lie comfortably in any position. She had to sleep sitting up. She had pain in the back, the leg and the chest. At the time she saw Dr Walsh and he referred her for physiotherapy she had pain in the hip, thigh and the lower leg, with a tendency URJ TILLOTT v TILLOTT (Waddell AJA) 7 for the foot to swell, apparently her left leg, and it would flop about a bit. The physiotherapy arranged by Dr Walsh continued for about two and a half years once or twice a week. It consisted of heat treatment and traction. She then changed her physiotherapist. She took many tablets for relief of pain. After the accident she was no longer able to do the housework or shopping and household tasks and shopping had to be done by her husband and children. She got a woman in to do the ironing. From January 1982 to November 1985 her condition gradually worsened although she was having physiotherapy from Mr Paul Kelly and being reviewed by Mr Bleasel from time to time. There was an improvement after the laminectomy which has already been mentioned but pain of a different character continued. Again, as already mentioned, after the battery was removed her condition improved for the time being. She has never been able to resume household tasks or push a shopping trolley. After the operation in January 1988 she lost all movement in her left foot, she couldn't raise her toes. She continues to wear the calliper on her left leg, which photographs show extends from underneath the heel of her shoe to just below the knee. The operations left extensive scars on her back and left buttock which she was self-conscious about. She has continued to wear the back brace, of which there are photographs in evidence and which would clearly be uncomfortable even though it apparently prevents painful movement. Since the operation in January 1988 it has hurt her to sit down. Her right arm is still painful and she has a tendency to drop things involuntarily. She is most comfortable if she moves around a little. She has now reached the stage where she can do some simple household tasks like getting meals, putting some washing out and a little dusting, but is not able to undertake heavier household tasks. She can now dress and bathe herself and do her hair, but when she goes to the toilet sometimes is unable to get off. Her husband and children help with the main household tasks. In June 1988 she and her husband and family moved from Lidcombe to Strathfield to a house without a flight of steps at the front door. She still has difficulty with steps and is still unable to use public transport. Since the accident she has been unable to play tennis or to go swimming or to be active with the children and, because she has not been able to sit comfortably, she has not been able to enjoy outings. Her sexual relationship with her husband has been affected because it is no longer spontaneous. The physiotherapy treatment continued up to 1985 when the fusion operation was performed. The question which has to be decided is whether, in the light of this evidence and the non-controversial medical evidence, it can be said that the award of damages for pain and suffering and loss of the amenities of life up to the time of the trial was not within the range of a sound discretionary judgment. With great respect to the trial Judge, and making due allowance for the fact that he had the advantage of listening to the plaintiffs oral evidence and to Mr Bleasel's oral evidence, it seems to me that it was. The period between the accident and the trial was unusually long, nearly eleven years, no doubt because of the time it took for the full gravity of the plaintiff's injuries and disabilities to emerge. During this period she was in constant pain and suffering to a greater or less degree. She had seven separate admissions to hospital and two major operative procedures each involving a stay in hospital of about six weeks. By September 1982 she had, in the opinion of Mr Bleasel, had her overall capabilities reduced by about 50%. The pattern of her life has been completely upturned since the accident. By May 1988 she was, in the opinion of Mr Bleasel, "profoundly disabled". In assessing 8 UNREPORTED JUDGMENTS the impact of the accident on her life I have left out of account that it made her less able to cope with the family setbacks which, unfortunately, she suffered which are mentioned below. His Honour attributed some of the appellant's distress to events which he describes as follows: "other overriding factors in her life, particularly with the ordinary exigencies of having three children, all at school or almost at school, at the date of the accident and for a good part of the time and still there with one child still at school and the tragedies that have overcome not only the eldest child, the disappointments for Ann and of course there is the plaintiff's husband, who has according to what I have read in Dr Dyball's report, but not had the benefit of it really put, the husband has had some misfortunes. I cannot measure them as against him but they have certainly reflected on the plaintiff's lifestyle." The reference to Ann is to the fact that she had intended to go to the University but did not do so in order to help the family. The reference to the husband is that through sickness he was not able to continue his occupation and had financial difficulties. The eldest child had a motor vehicle accident which severely disabled him. No doubt these considerations greatly increased the impact of the pain and suffering which the appellant had as a result of the accident, particularly because she was so disabled and because her condition was not able to be alleviated and gradually got worse. It may well be that her descriptions of her condition to the defendant's doctors was coloured by her family circumstances. However, in the light of the non-controversial evidence as to the nature of the appellant's injuries and disabilities, and bearing in mind that there is no dispute that all of these are to be attributed to the accident, I would substitute for the $25,000 which his Honour awarded for pain and suffering and loss of the amenities of life from the time of the accident until the trial, the sum of $45,000. In this respect I accept fully the submissions of senior counsel for the appellant. I turn now to the question of compensation for loss of employment opportunity for which his Honour awarded $25,000. His Honour was sceptical about her evidence that she intended to seek employment from the beginning of 1978 when her youngest son commenced school. His Honour had regard to some inconsistencies between the evidence of the appellant and her husband as to when they anticipated that the child would go to school but concluded that there seemed to be no doubt that the appellant was considering going back to work. But he suggested that the intention of the appellant to go back to work when her son commenced school was more an expression of her preference rather than a statement of her precise intention and that she reserved until herself the ultimate decision as to when it would be that she would do so. In his reasons his Honour said: "On balance I come to the conclusion that she had not formed a specific intention with a particular job nor for a particular period and having regard to all of the other factors about her reproductive capacity, her previous history, of miscarriage and the like, plus the fact that it was not of economic necessity that she go back to work and it may well be that if she had have been working in 1984 when her son became tragically injured in the motor vehicle accident, she may have given up work then. And so doing the best I can I will make an award to the plaintiff for the loss of opportunity of employment having regard to all of the various exigencies which were occupying her time." URJ TILLOTT v TILLOTT (Waddell AJA) 9 These conclusions should, in my opinion, be accepted having regard to the advantages which his Honour had as the trial Judge. They relate, of course, to the period before the trial. However, the sum awarded is small in relation to what the appellant could have earned if she had gained full time employment from the beginning of 1979 up to the date of the trial if she had been employed under an award such as the Shop Employees (State) Award, over $87,000. On the same basis, if she had been able to work full time after the trial to age 55, less 15% for vicissitudes of life, she would have earned nearly $79,000. This would be a total of over $160,000. There seems to be little dispute that the Shop Assistants Award provides an appropriate basis for considering loss of earning capacity. The appellant was married at 18 but before that she was employed as a shop assistant and had had some training selling cosmetics. She had not had any typing or clerical training. However, at the age of 34, it would seem not unlikely that she could have obtained full time or, at least, substantial part time, employment. His Honour did not criticise the evidence of Mr Phillips, a business and family friend who had offered her employment in 1977 on a receptionist and "cold call" basis. This expression apparently refers to a person who is engaged in telephoning people who might be interested in insurance and endeavouring to arrange an appointment. Mr Phillips was a partner in an insurance business at the time. He described her as "an outgoing effervescent type of person, ideal for that sort of situation". He said that the appellant was looking for a position where she didn't have to work school holidays and that suited him because two of his partners' wives could fill in during those periods. It seems to me that, accepting the reservations expressed by the trial Judge, it is inherently likely that the appellant would have worked for substantial periods after the accident although possibly on a part time basis. She was concerned to improve their standard of living. In saying this I leave out of calculation the fact that her husband ran into financial difficulties which would, of course, have increased the likelihood that she would have engaged in employment. When regard is had to the total sum which she might have earned had she worked full time from the beginning of 1978 until the age of 55, namely over $160,000, it seems to me that the amount which the learned trial Judge assessed was not within a sound discretionary range and should be increased. I would award the sum of $60,000 for past and future loss of earning capacity and would apportion this as to $25,000 before judgment and $35,000 after. I turn now to the question of interest. His Honour rightly considered that the period over which he should award interest was at his discretion. The parties had agreed on a rate of 7.5%. However, he took into account a view that there was no provision in the District Court Act 1973 for awarding interest when the proceeding commenced. This was an error. S83A, which is the relevant provision, was then in force. See Act No 8 of 1978. Accordingly, it must be concluded that, in making "a calculation for roughly half of the time since the action was commenced", his Honour erroneously exercised his discretion. In his judgment his Honour is critical of the fact that the proceedings were commenced in early 1980. He says that this was not a really good time to commence the action because little was known by the appellant's medical advisers of her condition arising out of the accident. With respect, I do not agree with this observation. The appellant's advisers were not to know that liability would be admitted and would rightly have been subject to criticism if commencement of the proceedings had been delayed until say the end of the 10 UNREPORTED JUDGMENTS limitation period in 1984, by which time her medical condition would have been clearer, on the ground that the recollection of the witnesses to the accident would by then have become less certain. However, his Honour does not say that this consideration was one which he took into account, as the respondents suggest he might have done, in exercising his discretion as to interest. In my opinion, there is no reason why interest should not be awarded, as is usually done, for the whole period between the time of the accident and the trial. However, since the appeal was argued the High Court has held that interest on pre-trial non-economic loss should not be calculated at commercial rates: MBP (SA) Pty Ltd v Gogic, 26 February 1991 unreported. This Court has since then in a number of damages appeals applied a rate of 4%. It is not appropriate to calculate interest on such loss at the agreed rate of 7.5% in the present case because this is derived from a commercial rate of 15%. In my opinion a rate of 4% should be applied which means that, in the usual way, interest should be calculated at half that rate over the whole period. As to the plaintiffs economic loss, interest should be calculated at the agreed rate of 7.5%. For the foregoing reasons, I propose that the plaintiff should be entitled to damages as follows: General damages: pre-trial $45,000 Interest thereon from 21 March 1978 to 8 February 9,796 1989 at 2% (10 years 46 weeks) General damages: after trial 45,000 Loss of employment to trial 25,000 Interest thereon at 7.5% 20,409 Loss of employment after trial 35,000 Out-of-pocket expenses 53,781 Griffiths v Kirkmeyer 35,000 $268,986 In the result, I propose that the judgment for the plaintiff be set aside, that judgment be entered in the sum of $268,986 to take effect as at 8 February 1989. The respondent should pay the appellant's costs of the appeal and should have a certificate under the Suitors' Fund Act if so entitled. 1. Appeal allowed. 2. Judgment below set aside and instead judgment entered for $268,986, to take effect as at 8 February 1989. 3. Respondent to pay appellant's costs of appeal. 4. Respondent to have certificate under Suitors Fund Act if COUNSEL for the appellant: BF Murray QC / GJ Bakos Counsel for the Respondent: KP REWELL SOLICITORS for the Appellant: Beston and Company Solicitors for the Respondent: GM Meadows, Solicitor for GIO