LEXINGTON CONSTRUCTIONS PTY LTD v COYNE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and CRIPPS JJA 16 July 1992, 24 December 1992 [1992] NSWCA 134 WORKERS' COMPENSATION — interest — lump sum awards under s66 and s67 Workers Compensation Act 1987 — employer proffers cheque for maximum amount payable under s66 — worker on legal advice refuses to bank cheque — dispute over interest — trial judge (Davidson CCJ) awards interest from date of injury to date of award — no discount for proffering of cheque — appeal to Court of Appeal — held: (Mahoney JA and Cripps JA; Kirby P dissenting): The determination of interest was a discretionary one and ought not be disturbed by the Court of Appeal. Bennett v Jones [1977] 2 NSWLR 355 (CA) referred to; Arklow Pty Ltd (T/as Champion Press) v Taavao, Court of Appeal, unreported, 11 June 1992 approved. INTEREST - workers' compensation - entitlement to statutory sums - delay in payment - principles for the provision of interest. PRACTICE and PROCEDURE - Court of Appeal - securing order where judges differ - Court order will follow highest common denominator of judges' agreement. Woolworths Ltd v Kelly (1990) 22 NSWLR 189 (CA) followed. Compensation Court Act 1984, s3, s19, and s32. Workers Compensation Act 1987, s66, and s67. Kirby P This appeal from the Compensation Court of New South Wales concerns a challenge by an employer to an award of interest in favour of a worker. Involved in the appeal is consideration of the principles applicable to the award of interest under the Compensation Court Act 1984 (the Court Act) and whether it has been shown that the discretion of the primary judge miscarried in such a way as to authorise the intervention of this Court. A paraplegic worker recovers interest Mr George Coyne (the worker) is the respondent to an appeal brought by Lexington Constructions Pty Ltd (the employer). On 4 March 1988 the worker was injured in the course of his employment for the employer when he stepped on a ladder to descend from certain scaffolding. The ladder gave way. This resulted in the worker's falling and being crushed. He suffered severe fractures to the spine resulting in paraplegia and in other physical and mental disabilities. The worker made a claim for compensation under the Workers' Compensation Act 1987 (the Compensation Act). By his application to the Court he sought a determination of the amounts to which he was entitled under s66 and s67 of that Act. His entitlement to compensation was not disputed. The worker's claim came for hearing before Davidson CCJ. The issues for determination were: 1. Whether the maximum amount payable to the worker under s66 of the Compensation Act was $82,300 (the maximum provided as at the date of the worker's injury) or $154,650 (the maximum provided as at the date of trial); 2 UNREPORTED JUDGMENTS 2. Whether interest on the amount payable to the worker under s66 of the Compensation Act should run from the date of his injury until the date of the award or from the date of injury until 13 September 1989 (being the date upon which a cheque for $82,300 was tendered by the employer's solicitor to the worker's solicitor); and 3. Whether interest should be awarded on the whole of the amount payable to the worker under s67 of the Compensation Act (being the maximum amount provided) or only on that part of it which was to be apportioned to the past. Davidson CCJ found that, at the applicable time, the maximum sum payable under s66 of the Compensation Act was $82,300. The worker has accepted that determination. There is no appeal against it. It is in respect of his Honour's decision on interest that the employer has appealed. Such appeal comes to the Court pursuant to the provisions of s32 of the Court Act. It was brought after the Compensation Court (Amendment) Act 1989 amended the provisions of the Court Act which formerly limited appeals to this Court to points of law or to the admission or rejection of evidence. By s5(1) of the amending Act, s32 of the Court Act provides, in respect of the instant appeal, an unlimited appeal by way of rehearing before this Court. There is no relevant restriction upon the grounds of appeal having regard to the amount in issue. (See the Court Act, s32(3)). However, the procedure before the Court remains an "appeal". It is therefore to be conducted in conformity with the rules which govern an appellate procedure in such a case. This Court is not empowered simply to ignore the decision of Davidson CCJ, proceeding to its own determination as if no primary decision had been made. It is necessary (as was accepted) for the appellant to show error on the part of his Honour. The primary judge's findings Davidson CCJ recorded that the parties before him had agreed that the worker was entitled to recover under s66 of the Court Act the sum of $82,300 "in respect of several losses resulting from injury to the [worker's] lower body". He determined that the employer was obliged to pay the worker, as lump sum compensation under s67, the sum of $41,150 in respect of pain and suffering resulting from the said losses. The amounts of these components of the award have not been contested. It is in respect of the third paragraph of the award that the employer has appealed. This required it to pay the worker: "3,... interest on the said lump sums awarded under s66 and s67 at the rate of 12% per annum from 4th March 1988 to 27th May 1992." 4 March 1988 was the date of the worker's injury. 27 May 1992 was the date of the award of the Compensation Court. Davidson CCJ justified his provision of an award for such interest in the terms of the passage set out in the reasons of Mahoney JA, which I will not repeat. In this Court, no challenge was made to the rate of interest chosen by his Honour. No issue was tendered upon the basis that the claim for interest was not included in the worker's application for determination (the originating process in the Compensation Court). There is a requirement by Pt7 R1 of the Compensation Court Rules that interest "shall not be ordered to be paid" unless "there is included in the originating process... a statement that interest will be claimed". This point not having been taken in the Compensation Court, it was properly not pressed before this Court. URJ LEXINGTON CONSTRUCTIONS PTY LTD v COYNE (Kirby P) 3 The contest here was thus confined to issues (2) and (3) above - namely the period during which the worker was entitled to interest on his award under s66 of the Compensation Act and the amount of his award under s67 which should attract the entitlement to interest. Each of these grounds of appeal must be dealt with in turn. But first it is appropriate to say something about the legal basis for the award of interest. Entitlement to interest Before the advent of statutory entitlements to interest in defined circumstances, the common law had not developed a coherent principle for the award of interest on damages or debts. See Shaw Savill and Albion Co Ltd v The Commonwealth of Australia (1953) 88 CLR 164, 166. In England, the power to award interest in common law claims was enlarged by statute by the Civil Procedure Act 1833 (Lord Tenterden's Act). Like provisions eventually found their way into Australian legislation. See eg Common Law Procedure Act 1899 (NSW), s140. In due course, these provisions were replaced in respect of the Supreme Court by 94 of the Supreme Court Act 1970. That section provides for a discretion in the Court to award interest ("the Court may order..."). In this respect, the local provision governing the Supreme Court differs from that contained in the legislation of some other Australian jurisdictions as will appear below. No provision for the payment of interest on worker's compensation benefits was included in the Workers' Compensation Act 1926, as originally enacted. Indeed, such provision only entered workers' compensation law in 1957 by an amendment to that Act. It then only applied in respect of delay in the payment of an ward of compensation. See s62A. The purposes of the statutory provisions for interest have been explained in a series of decisions of the High Court of Australia expressed in the context of interest upon common law damages verdicts. In Batchelor v Burke (1981) 148 CLR 448, the High Court had before it a claim for interest upon damages and a countervailing claim that the court should take into account the earlier payment of compensation. Under the Supreme Court Act 1935 (SA), s30C(1) it is provided that, unless good cause is shown to the contrary, the Court shall upon the application of a party in favour of a judgment for which the payment of damages has been made, include in the judgment an award of interest in favour of the judgment creditor. The High Court held that, in determining whether interest should be awarded upon damages, it was proper for the court to take into account the payment of compensation by the employer. Interest in respect of the portion of damages representing earnings lost before trial but replaced by compensation was disallowed. Gibbs CJ observed (at 454f): "In the present case it was not suggested that there was any significant lapse of time between the loss of earnings and the payment of the compensation. In those circumstances, when the plaintiff who has lost earnings has received compensation instead, he has not been out of pocket by reason of the failure to pay him damages, even though the compensation is repayable when the damages have been received. The circumstance that the compensation was paid by a third person (the employer) obviously does not mean that the payment was irrelevant to the inquiry whether in fact the plaintiff has suffered a practical detriment by the loss of his wages, and it does not provide any reason in law for disregarding the fact that the plaintiff received the compensation in place of the wages. In accordance with the principle which has been accepted in this Court and in the Privy Council it would therefore not be right to award interest in respect of that portion of the award which represents damages for earnings lost before trial 4 UNREPORTED JUDGMENTS but replaced by payment of workers' compensation. It would not be consistent with that principle to award interest simply to discourage defendants from delaying the settlement of claims. The interest is awarded to compensate the plaintiff for the detriment which he has suffered by being kept out of his money, and not to punish the defendant for having been dilatory in settling the plaintiff's claim." To similar effect are the remarks of the High Court in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, 660. In Haines v Bendall (1991) 172 CLR 60, 66, Mason CJ, Dawson, Toohey and Gaudron JJ elaborate the purpose of the award of interest: "An award of interest up to the date of judgment is an award of interest in the nature of damages... This. statement acknowledges that the award of interest is an integral element in the attainment of the object of damages, namely, to compensate a plaintiff for injury sustained. Hence the award of interest is compensatory in character. While '[i]nterest should not be awarded as compensation for the damage done'... the award of interest is nevertheless an essential element in the achievement of true compensation for that damage. In Thompson v Faraonio (1979) 54 ALJR 231 (PC) 233, the Privy Council stated that '[t]he reason for awarding interest is to compensate the plaintiff for having been kept out of money which theoretically was due to him at the date of his accident'... The award of interest for the period of delay in payment between the date of accrual of the cause of action and judgment affords the fair legal measure of compensation... Thus it is the award of damages and, where appropriate, interest awarded on damages for the period up until the judgment takes effect which allows the plaintiff to be placed in or restored to the situation, as far as money can do, in which he or she would have been but for the defendant's negligence." Their Honours observed in Gogic that s94(1) of the Supreme Court Act conferred a wide discretion on a court awarding interest. However, they emphasised that the discretion was to be exercised in accordance with legal principle, as any judicial discretion must be. In this respect they simple re-affirmed what Gibbs J had said in Cullen v Trappell (1980) 146 CLR 1, 17: "\...[T]he discretion must be exercised in conformity with the general principles governing the award of damages so that an award of interest on damages for personal injury should do no more than assist in the restoration of a plaintiff to the position in which he or she would have been but for the defendant's negligence." There is no reason why the provision of a statutory right to interest on workers' compensation payments in this State should involve a purpose different from that which resulted in the power granted in respect of judgments of this Court by s94 of the Supreme Court Act. The purpose is to compensate the worker who has been "kept out of' his or her entitlements to compensation. This is primarily because, only by so doing, can the purpose of the provision of a statutory compensation entitlement be fully achieved. The worker is entitled, in law, to the statutory sum(s) immediately such sum(s) fall due. Most such amounts are paid without litigation. But where litigation ensues, delay should not deprive the worker of the benefit which the law requires. By the payment of interest the worker is restored to that benefit. Indirectly, however, the obligation to pay interest necessarily deprives the employer of any advantages of withholding payments to which the individual worker is entitled. That may not be the purpose of the provision of interest. But it is an undoubted effect. It is a beneficial effect. URJ LEXINGTON CONSTRUCTIONS PTY LTD v COYNE (Kirby P) 5 It encourages the achievement of the objects of the compensation statute. These include the prompt payment of compensation to an injured worker or, in the case of death or disability, to that worker's dependants. It is against the background of these principles, developed to deal with like questions, that the relevant statutory provision here in question must be considered. S19 of the Court Act provides: "19(1)In any proceedings in the Court, the Court may order that there shall be included, in any sum to be paid, interest at such rate as it thinks fit on the whole or any part of the sum for the whole or any part of the period between the date when the cause of action arose and the date when the sum is payable. (2)[Repealed]. (3)This section does not - (a) authorise the giving of interest upon interest; or (b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise." By a section inserted in 1987 the Court Act now also provides, relevantly: "19A(1)Unless the Court orders in any particular case that interest be not payable, interest shall be payable on so much of the amount of any sum ordered to be paid by the Court as is from time to time unpaid. (2)Interest payable under subs(1) in respect of any sum ordered to be paid shall (a) be calculated as from the date when the order was made or from such later date as the Court in any particular case fixes; (b) be calculated at the rate prescribed for the purposes of s95(1) of the Supreme Court Act 1970;...." S19A has no application in this case as the claim for interest is not upon a sum ordered to be paid. However, the new section is of interest in that it reinforces the impression of a Parliamentary purpose that interest should be paid upon moneys from which a worker has been "kept out". By the reference to the rate prescribed under the Supreme Court Act, it also links the provision for interest under the Compensation Court Act with that provided under the Supreme Court Act. It suggests the commonality of the purposes of the two statutory provisions. A proffered payment is refused. Ihave now reached the point which has given rise to the contest in this appeal. The proceedings in the Compensation Court were the second which the worker had brought to that court. The first, commenced in 1988, were removed from the court's list in circumstances which do not require examination. However, on 21 June 1989, whilst the first proceedings were current, the solicitors for the employer wrote to the solicitors for the worker. They indicated that their instructions were to offer the sum of $82,300 "being the maximum amount payable pursuant to the section". With respect to the claim under s67 they invited an offer upon which they could obtain instructions. No response was received to this letter. Accordingly, on 13 September 1989 the solicitors sent their client's cheque, made payable to the worker in the amount of $82,300, "in respect to his claim pursuant to s66 of the Act". They again invited negotiations with respect to the s67 claim. There is no contest that the cheque was proffered and received; nor was it contested that the receipt by the solicitors was receipt for the worker and that he was aware of the payment. The cheque was never banked by the worker. He received advice from his solicitors not to bank it. He accepted that advice. From the proceedings before Davidson CCJ it emerges that the advice was based upon two premises, each of them erroneous. The first was an uncertainty about the "medical" condition of the 6 UNREPORTED JUDGMENTS worker and whether it had "stabilised". This was irrelevant because the employer had tendered a sum which represented the maximum payable for 100% loss of the worker's affected limbs. The second reason was a desire to protect the worker from the loss of common law rights which followed the partial restoration of such rights by amendments to the Compensation Act in 1989. However, by the applicable time, s151B had been inserted in the Compensation Act. It deprived the worker of any justification for delaying the receipt of the lump sum compensation proffered by his employer. Ultimately, the lack of justification for refusing to receive the cheque proffered by the employer was accepted. The question in the proceedings before Davidson CCJ thus became whether, by the vehicle of interest, the cost of the refusal to bank the proffered cheque should fall upon the worker or the employer (and its insurer). Davidson CCJ concluded that it should fall on the employer. The only reason advanced was that it had "had the use of the money throughout the rather extensive period". This led to the award of interest for the whole "extended period" upon the s66 sum. Unbanked, the employer's cheque of 1989 lapsed a year after it was drawn. When the current proceedings were recommenced in the Compensation Court a further letter was sent by the solicitors for the employer in May 1992. With the letter the solicitors sent the employer's new cheque which was "tendered in satisfaction of the applicant's claim pursuant to s66 of the Act". This was sent as a "replacement" for the earlier cheque. There was a renewed invitation to put a proposal in respect of the s67 claim and an assertion that the worker had "no entitlement on the s66 aspect of claim beyond 13 September 1989". Interest and delay In an environment of court delays, occasioned often without fault on the part of plaintiffs and other claimants, the courts have developed principles to guide the approach to be taken by trial judges faced with an application for interest pursuant to the statutory provisions. Of course, each provision of interest invokes the discretion which must be exercised (as any judicial discretion must) by reference to the purposes for which it is provided. The judge must have regard to relevant considerations and pay no attention to irrelevant matters. Necessarily, the circumstances of each case differ. It is also important to keep in mind the warning of Samuels JA in Bennett v Jones and Anor [1977] 2 NSWLR 355 (CA) at 381: "T emphasise, however, the importance of approaching awards of interest in a broad and practical way without striving for theoretical satisfaction in a field which ought primarily to be governed by pragmatic solutions. It would be no service to the expeditious decision of cases of this kind if a great deal of time were spent in contriving sophisticated answers to questions which can be adequately and fairly dealt with by realistic approximations." In times of high inflation, and consequentially high interest rates, an award of interest sometimes amounts to a very substantial sum both on its own and as a proportion of the sum originally in dispute. Consequently, courts both in this country and elsewhere have had to deal with numerous disputes about interest. In England, the primary principle was laid down by Lord Denning MR in Jefford and Anor v Gee [1970] 2 QB 130 (CA). It was the principle which resulted from a reflection upon the nature and purpose of a right to interest by statute. It was that interest should not be awarded as compensation for the URJ LEXINGTON CONSTRUCTIONS PTY LTD v COYNE (Kirby P) 7 damage done but only because a plaintiff had been "kept out of' money which ought to have been earlier paid. Cf Spittle and Ors v Bunney [1988] 1 WLR 847 (CA), 859. Where a case took a long time to come on for trial because of unjustifiable delay on the part of the plaintiff, the courts in England have tended to conclude that the plaintiff has then been "kept out of" his money by his or her own default and not by any default on the part of the defendant or the inherent problem of court delay for which neither party was responsible. In such circumstances, the English courts held that a "special reason" had been shown for not giving some of the interest which might otherwise accrue during the period of delay in question. So much was established in Birkett v Hayes and Anor [1982] 1 WLR 816 (CA), 825. A rule of thumb was adopted in England that a plaintiff was entitled to full interest for two years in the ordinary case because that was the ordinary delay in the court list. Where the delay was much longer and was occasioned by inattention in the plaintiff's camp, interest was denied or significantly reduced. See eg Pritchard v JH Cobden Ltd [1988] Fam LR 22; Dexter v Courtaulds Ltd [1984] 1 WLR 372 (CA). In this State, the principles upon which interest should be provided have been considered in many cases. I will not review the authorities. I do not believe that they evince an approach different from that of the English courts in respect of the proper response to delay and its consequences for claims to interest. During argument, it was suggested that the dicta of Moffitt P in Bennett v Jones and Anor [1977] 2 NSWLR 355, 369 (CA) were inconsistent with the notion that delay on the part of a plaintiff was a consideration relevant to the exercise of the discretion to award interest. I do not so read his Honour's reasons. At 370, he said: "T see no reason why the simple fact that a defendant does not have to pay money when his liability arises, and has the benefit of non-payment for a period, should not provide a basis to make a discretionary order for payment of interest for the whole period." However, this is far from stating that the continued possession of the funds represents a conclusive reason for imposing interest on the possessor. It is simply one consideration. Necessarily, in other circumstances, the judge, exercising the interest discretion judicially, must take into consideration other relevant matters. I do not read Bennett v Jones as authority for a contrary proposition. Certainly, it has not been so read by the judiciary in New South Wales. Judgments exist in which delay on the part of the claimant has resulted in reduction of interest. On the other hand other cases assert that the circumstances in which a claim for interest on a judgment recovered may be refused will be rare. See eg Homeowners Insurances Pty Ltd v Job (1983) 2 ANZ Ins Cas n 60-535 (NSWCA) at 78-105 and Falkoner v Bourke (1990) 19 NSWLR 574 (CA) at 576. To assert that the defendant will invest its moneys at commercial rates of interest and thus should be obliged to pay such interest to the plaintiff whose moneys are invested may involve an irrelevant consideration. Many defendants will not invest moneys at all. Where the defendant is insured, its relationship with its insurer is extraneous in legal theory to the claim which the plaintiff has against it. See Keates v Nelson, Court of Appeal, unreported, 16 April 1992; Lamb v Cotogno (1987) 164 CLR 1, 7, 11. Even if it were appropriate to have regard to the funding arrangements of insurers, it is somewhat unsophisticated for courts to imagine that they have a sum set aside and attributable exclusively to a particular claim invested on the short-term money market at commercial rates of 8 UNREPORTED JUDGMENTS interest to their own profit instead of to the plaintiff's. Without evidence, I do not believe that courts should make such assumptions. Cf Bennett v Jones (above), 376. Delayed receipt occasioned by worker In the present case, the delay in the receipt by the worker of his statutory entitlement to compensation under s66 of the Compensation Act was entirely the decision of the worker, as advised by his solicitors. Their advice was erroneous although doubtless well meaning. But it cannot be allowed to burden the employer. The employer, without delay, proffered the full amount of statutory compensation under s66 of the Act to which the worker was entitled. Thereafter, the worker has not been "kept out of" his compensation money by any action of the employer or by the ordinary delays of the courts. To the extent that he was, after 13 September 1989, kept out of his moneys under s66, it was by his own mistake. Clearly, that was a consideration which had to be reflected in the exercise of the judicial discretion to award interest. I acknowledge the great care and diffidence which this Court must exercise in disturbing the discretionary order on interest made by Davidson CCJ. The relevant authorities are well known. They are set out in the reasons of the other members of the Court. But the basic criterion for the exercise of the discretion is, according to the authorities, whether the claimant has been "kept out of" his or her money. When I look at the reasons which Davidson CCJ gave for his exercise of discretion in this case, I see no reflection of this consideration. It is neither mentioned in express terms in his Honour's reasons. More importantly, the resulting award of interest (which was for the full period from injury to decision) negates any allowance having been made. Various arguments advanced to defend this outcome can easily be despatched. First, it was said that the drawing and delivery of a cheque amounts to no more than a conditional satisfaction of the debt. Actual payment is not effected until the cheque has been presented and paid. Armco (Aust) Pty Ltd v Federal Commissioner of Taxation (1948) 76 CLR 584, 595; Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529, 532. That may be so. But it is irrelevant to the case in hand. Tilley, for example concerned a cheque subsequently dishonoured upon presentation. There is no suggestion that the employer's cheque here would have been dishonoured. The worker cannot rely upon his own failure to present a cheque which would have been paid to contend that payment was not duly tendered in circumstances where, but for his own default, that obligation would have been fully discharged. Secondly, it was asserted that the worker "for whatever reason" did not "receive" payment of the compensation to which he was entitled under s66. The employer had thus retained the "benefit" of the fund represented by the worker's entitlement. I would dispute the assertion that the worker did not "receive" his compensation. The payment to his solicitor represented payment to him. In the exercise of the discretion to provide interest as compensation to the worker who had been "kept out of' his moneys, it was at least relevant to take into consideration the proffering of the cheque to the worker and his refusal to accept it for erroneous reasons of which the employer was completely innocent. Thirdly, it was said that the Court would not disturb a discretionary decision in respect of the award of interest. I entirely agree that the Court must venture upon the interference of a discretionary award of interest with great care. Cf BP Exploration Co (Libya) Ltd v Hunt [No 2] [1983] 2 AC 352 (HL), 374. Such awards are a species of decisions of a discretionary character on practice and procedure which this Court will disturb only where an error of principle is shown URJ LEXINGTON CONSTRUCTIONS PTY LTD v COYNE (Kirby P) 9 and a serious injustice is demonstrated. However, in approaching the consideration of this question it is pertinent to remember two matters. First, the jurisdiction of this Court, on appeal from the Compensation Court, has been enlarged by Acts of Parliament. This Court is not now confined to correcting errors of law (or of the admission or rejection of evidence) as s32 of the Court Act originally provided. The Court is conducting an appeal by way of rehearing. Its remit has been increased. It is entitled to correct errors of a factual character which infect the ultimate award under appeal. A failure to take into consideration, in the exercise of a statutory discretion, a plainly relevant fact, or to assign that fact appropriate weight is now within the ambit of the enlarged appellate jurisdiction of this Court in relation to the Compensation Court. Secondly, it should not be thought that the review of interest decisions is exceptional. Clearly it is not, as a glance at the casebooks shows. See eg Birkett v Hayes (above); Spittle v Bunney (above) and Wright v British Railways Board [1983] 2 AC 773 (HL). Therefore, whilst this Court should exercise care in reviewing a discretion of a trial judge to award interest - and should avoid the over-sophistication in such decisions as Samuels JA cautioned in Bennett v Jones - we cannot ignore our own statutory responsibility where the Court of Appeal's jurisdiction has properly been invoked. If it is clear that an error of principle has occurred in the exercise of the discretion or the discretion otherwise has been exercised in such a way as to produce a serious injustice, we must shoulder the responsibility of providing the relief sought. The whole point of the appellate process includes to ensure observance of the rule of law. Where a discretion has miscarried, the law has not been applied. A party then has a grievance which this Court should, if it is so empowered, correct. It is certainly not the law that the merest mention of a discretion bars the way of a party to appellate relief. Such an over-simplistic approach to the function of this Court is contrary to authority and undermines the rule of law itself. The doors of the Court are not slammed shut to the review of discretionary decisions. Where error is shown, we should correct it. In respect of decisions of the Compensation Court we can now more readily do so because of the enlargement of our jurisdiction. I would set aside the award of interest on the s66 lump sum and require its correction. Interest on the pain and suffering The position in respect of the lump sum under s67 for pain and suffering is in a different category. At no time did the employer proffer any payment under that section. True, it invited an offer to be made but none was made. Accordingly, the resistance to the payment of interest here had to find a different basis. The employer argued that his Honour had failed to apportion any part of his award under s67 as to past pain and suffering. He had thus fallen into the error of approaching the entitlement to interest upon a wrong basis. Specifically, his decision ran the risk of providing interest on future pain and suffering. That, it was said, was impermissible. In Arklow Pty Ltd (Trading as Champion Press) v Taavao, Court of Appeal, unreported, 11 June 1992, the Court, in an appeal limited to correcting (relevantly) errors of law, applied to the award of interest under s19 of the Court Act the practice developed in damages claims. This is to dissect the sum payable in respect of the past from that payable for the future. Only upon the former is interest payable. This is because, in the theory of the law, it is only in respect of the former that the claimant has been "kept out of" his entitlement. In the course of his reasons, Clarke JA, who gave the first judgment, said at 7: 10 UNREPORTED JUDGMENTS "[T]he approach demonstrated by the cases is that it is proper to allow interest only on those parts of the common law award which represent losses suffered to the date of trial and there is nothing either in s67 of the Workers Compensation Act or s19(1) of the Compensation Court Act (which is in relevantly identical terms to s94 of the Supreme Court Act [which] would justify taking a different approach in claims under s67 from the approach which has the judicial imprimatur, taken in respect of claims at common law." Mahoney JA (who agreed with Clarke JA) added at 10: "T do not wish to exclude, as a matter of principle, the possibility that there may be other cases in which interest can be awarded but where as in this case the judge awarded interest by reference to pain and suffering likely to be suffered and not actually suffered, then in my opinion he was involved in an error of principle." Cripps JA agreed. It must therefore be taken that this Court has established that interest under s19 is payable only in respect of compensation for pain and suffering as is attributable to the past. No interest is payable on so much of the s67 lump sum as is apportioned to pain and suffering in the future. This approach mandates, in the Compensation Court, the same dissection of the lump sum for pain and suffering as is required, for interest purposes, in common law claims. The difficulty for the application of this principle in the present case is presented by the profound injuries to the worker. They have devastated his life. By s67(7) pain and suffering means actual pain or distress or anxiety. The section imposes a statutory maximum which, the parties agreed before Davidson CCJ, was to be calculated by reference to the amount in force at the date of the worker's injury, namely 4 March 1988. That was $41,150. It was this amount which Davidson CCJ awarded to the worker. The complaint is that there was no dissection by his Honour for the past and the future. However, by s67(3) the maximum amount of compensation is payable: only in a most extreme case..." It was clearly open to Davidson CCJ to decide that the present was "a most extreme case". Accordingly, it was open to his Honour to award the worker the maximum amount. As the maximum is itself an artificial ceiling, there would be no point in dissecting it as to the past and the future. If it were dissected, it would be entirely open to Davidson CCJ to have determined that the whole of the statutory maximum was apportioned to the past. In a case such as the present, it was therefore not necessary for his Honour to apportion the amount awarded as to the past and the future or as s67(3) otherwise requires. Because this was found to be a most extreme case, the worker was entitled to the maximum. That was the sum which the employer ought to have paid. The worker was therefore "kept out of" that sum. He was entitled to full interest upon it from the date of injury to the award. No error has been shown in the provision of interest in that regard. Conclusions The result is that I have concluded that part of the award of Davidson CCJ is sustained (relating to interest on the s67 award). Part, however, must be set aside (relating to interest on the s66 award). Three questions then arise. The first is whether this Court is empowered to substitute an award of interest for that entered in the Compensation Court or whether the proceedings must be returned to that court for the entry by it of the appropriate award. It is obviously desirable and efficient (at least in cases of simple error which can readily be corrected) for this Court to correct the award. Doing so saves time and cost and «" URJ LEXINGTON CONSTRUCTIONS PTY LTD v COYNE (Kirby P) 11 conforms to the normal practice of this Court in relation to other courts from which appeals lie. Three possible difficulties, however, arise in respect of that course: (i) The Court has, in the past, acknowledged the specialist jurisdiction of the Compensation Court. At a time when appeals to this Court lay only on points of law and evidence it was invariably considered appropriate simply to correct errors and return the proceedings to the Compensation Court to enter the appropriate award which followed; (ii) S19 of the Court Act empowers "the Court" to order interest. "The Court" for this purpose is defined by s3(1) as the Compensation Court of New South Wales; and (iii) The powers of this Court in an appeal are ambiguous. They appear in s32(2) which was introduced when that section was changed to remove the limitation which formerly existed upon appeals. S32(2) now provides: "32(2)The Supreme Court may, on the hearing of any appeal made to it under subs(1) (a) remit the matter to the Court for determination by the Court in accordance with any decision of the Supreme Court; and (b) make such other order in relation to the appeal as the Supreme Court sees fit." The question is whether the power to make "other orders" under s32(2)(b) is confined to making orders in addition to the order of remittal. In favour of that interpretation is the conjunction "and", the order in which para(a) and para(b) appear in s32(2) and the existence in para(b) of the word "other". Upon this argument the "other order" is an order "other" than remittal, but in addition to it. Whilst this is an available construction of s32(2) I do not believe that it is the preferable construction. The section does not purport to exhaust the orders which can be made in an appeal. Thus, it does not refer to dismissal of the appeal which is another order clearly open to this Court. By the use of the word "may", Parliament has given the Supreme Court a broad mandate. This was required once the former limitation in s32(1) of the Court Act was removed. Upon this view, the power to make "such other order in relation to the appeal as the Supreme Court sees fit" is not confined by the power of remittal. Such a construction permits orders of dismissal to be made under para(b) without remitting the matter back to the Compensation Court. But it also permits correction of awards to conform to the decision of the Supreme Court. In some cases it will not be appropriate to correct the award. The course contemplated by para(a) will then follow, viz remittal. But in other cases, where this Court can deal fully and finally with the disposal of the appeal it is empowered to do so by para(b). It should do so, in the ordinary case at least, to bring the litigation to an end. The power conferred by s32(2)(b), so interpreted, is wide enough to permit correction of an order for the payment of interest without doing offence to the terms of s19 of the Court Act. The second question relates to the terms of the amendment. During argument, a suggestion arose that interest should be denied as from 21 June 1989 when the full compensation then provided by s66 was offered. In my view the worker's submission should be accepted in this regard. The case in the Compensation Court was fought upon the basis that interest was payable until the actual proffer of the cheque. This was done by letter of 13 September 1989. Had the employer relied upon the offer in June 1989, evidence might have been given concerning the circumstances of the offer, understandings reached, the practices in the 12 UNREPORTED JUDGMENTS compensation jurisdiction, the time for the payment and clearance of cheques and so on. Upon this basis it would involve a procedural unfairness to the worker to back-date the loss of the interest entitlement to June. See Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1, 7. In this Court, therefore, the case should be confined to the point argued below, viz that in exercising the interest discretion, the trial judge was bound to take into account the loss of the tender of the cheque in September 1989. Because, by his reasons and result, the trial judge did not take that consideration into account, his exercise of discretion miscarried. It resulted in a relevant injustice to the employer. It must be set aside. In the exercise of this Court's discretion and pursuant to s32(2)(b) an order should be made limiting the worker's entitlement to interest on the s66 amount from 4 March 1988 to 13 September 1989. Para(3) of Davidson CCJ's award should be corrected accordingly. Thirdly, it is necessary to dispose of costs. The employer has failed in respect of one of the issues argued in the appeal. It has succeeded, in substance, in respect of the other. It should have only part of its costs. Orders The orders which I would therefore propose are: 1. Appeal allowed; 2. Set aside so much of para3 of the award of the Compensation Court of New South Wales (his Honour Judge Davidson) as refers to s66. Otherwise that paragraph of the award confirmed; 3. In lieu thereof, order that the award of the Compensation Court of New South Wales be amended to include the following paragraph: 3A That the respondent pay the applicant interest on the said lump sum awarded under s66 at the rate of 12% per cent per annum from 4th March 1988 to 13th September 1989; 4. Order that the respondent pay half the costs of the appellant of the appeal and in respect of such costs have a certificate under the Suitors' Fund Act 1951. Securing an order of the Court A comparison of the published reasons of the members of the Court discloses a difficulty in securing an order because of the differing views expressed. Mahoney JA would dismiss the appeal upon both points argued. Cripps JA would dismiss the appeal against the award of interest on the s66 lump sum but allow it in relation to the s67 lump sum. I would dismiss the appeal in respect of the s67 lump sum but allow it in relation to the s66 lump sum. In the past, such discordance would have been resolved by the withdrawal by the judge junior in seniority of his orders and concurrence in those of the judge senior in appointment. See Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1977] 2 NSWLR 827 (CA) at 866 and O'Brien v Tanning Research Laboratories Pty Ltd (1988) 14 NSWLR 601 (CA), 641. Upon that basis my orders would have prevailed. However, in this Court, a different and more rational procedure has lately been adopted. See eg Woolworths Ltd v Kelly (1990) 22 NSWLR 189 (CA), 200. By it, the Court seeks to fund the highest common denominator in the agreement of the judges. In this case, applying that rule, there is a majority, although for different reasons, for dismissing the appeal upon each of the points argued - on the s66 sum (Mahoney and Cripps JJA) and on the s67 lump sum (Mahoney JA and myself). Accordingly, the order of the Court will be that the appeal is dismissed. Necessarily, the appellant must pay the respondents costs. URJ LEXINGTON CONSTRUCTIONS PTY LTD v COYNE (Mahoney JA) 13 Mahoney JA The worker was very seriously injured in circumstances giving rise to a right to compensation under the Workers Compensation legislation. He sought and was granted lump sum payments under the Workers Compensation Act 1987 s66 and s67. A dispute arose as to whether he was entitled to have interest on each of those lump sums and how the interest should be calculated. His entitlement was argued before the trial judge. The judge dealt with the matter as follows: "Tn exercising my discretion with regard to the amount of interest, I have given due consideration to the factual material which can be found mostly in Mr Maclean's affidavit. However it seems to me that it would be proper to award the applicant interest on both the s66 amount and the s67 amount from the date of injury to today's date. The principal reason I have come to that conclusion after weighing up the respective arguments that were advanced by the parties is the fact that the respondent has had the use of the money throughout this rather extensive period. I believe that it would do justice to the applicant if he were to be granted interest for the whole of that period in the circumstances. So far as the percentage amount is concerned, I allow that at 12 per cent over the whole of the period." An appeal has been brought to this Court in respect of the interest so awarded. Mr Hoeben for the employer company and Mr Grieve QC for the worker have reduced the issues to two and I shall confine what I say to those issues. 1. Interest on the s66 award: Under s66, a worker may be awarded lump sum compensation for his injury. The worker's injury was paraplegia. He was awarded the then maximum sum available for such an injury, $82,300. The judge awarded interest on that sum from the date of the injury to the date of the award, 27 May 1992. The only issue raised is whether the judge was wrong in doing so because, on 23 September 1989, he had been offered the total sum and had not accepted it. The sum remained available to him until the date of the award. The judge exercised, and was conscious that he exercised, a discretionary judgment. This Court may interfere with the exercise of that judgment only in limited circumstances: see generally House v The King (1936) 55 CLR 499 at 504-5; Lovell v Lovell (1950) 81 CLR 513 at 519. In Gronow v Gronow (1980) 144 CLR 513 at 519-520, in considering the established principles, Stephen J said: "The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight." 14 UNREPORTED JUDGMENTS It was not contended that the judge did not take into account the tender made by the company. Therefore, if error existed, it must be because the judge gave an appealably unacceptable weight to the factor or that the tender of the s66 amount must be of such weight that it removes the judge's discretion and entitles the employer to a refusal of interest, if not of right, at least as of course. Views have differed, not least in this Court, as to the weight to be given to such and similar matters. For a period approaching twenty years, views have differed as to the weight to be given in the award of interest to, on the one hand, the fact that a defendant party "has had the use of the money" to the time of judgment and to, on the other hand, the fact that the plaintiff could have had his claim determined earlier or have accepted moneys tendered to him. If there was a tendency in this Court, it was towards the view that the plaintiff party did not have and the defendant party did have the use of the money and that accordingly the former was entitled to interest. But, however that be, there is no compulsion, in the exercise of a discretion like this, to see one factor or the other as necessarily determinative. The fact that, in this case, Davidson J saw the fact that the company had retained the use of the money throughout as "the principal reason" why he should award interest to the worker for the whole of the period cannot, in my opinion, demonstrate error. Error can be inferred, therefore, only if, as an act of policy, this Court is to direct that tenders must be accepted or, at least, that in circumstances such as the present, they must, under pain of loss of interest. A judge exercising such a discretion must take into account only those factors which are within the intent of the statute: O'Sullivan v Farrer (1989) 168 CLR 210 at 216. No doubt he may take into account the desirability of the early settlement of cases by the acceptance of the tender of a proper award. But I do not see, either generally or in the circumstances of this case, the requirement that he must take such a view of the tender. I am conscious that, before this Court, it appeared that the worker was mistaken in not accepting the tender or at least in the view that his position would be prejudiced by the acceptance of it. But that, in my opinion, cannot be conclusive, generally or in this case. The matter remained for discretionary decision. I see nothing to support the conclusion that the judge did not take such matters into account. The appeal as to this matter should therefore be dismissed. 2. Interest on the s67 award: Under s67, an award may be made in respect of pain and suffering and the like. The judge awarded the maximum sum available $41,150. An award under s67 is intended to compensate a plaintiff not merely for what he suffers from the date of injury to the date of the award but beyond. It is settled that interest in respect of an award under s67 may be given only by reference to that part of the award which relates to the period from injury to the award: Arklow Pty Ltd v Taavo (Court of Appeal, 11 June 1992, unreported). The statutory limit on the amount which can be awarded will sometimes mean that the amount awarded is less than, under the general law, he would have obtained. In the present case $41,150 was, to put the matter no higher, no more than could be awarded under s67 in respect of the period from injury to award. The worker's position as a paraplegic involved pain and suffering, loss of amenity and the like, of a high order. If the judge had, in terms, indicated that the total amount awarded under s67 was less than the amount appropriate to the date of the award and, in the relevant sense, apportioned it to that, I would see no error URJ LEXINGTON CONSTRUCTIONS PTY LTD v COYNE (Cripps JA) 15 in principle in the award of interest upon that amount from injury to the date of the award. In Arklow Pty Ltd v Taavo, I referred to such a case. In the present case, the judge did not spell out his reasoning in this regard. But I see no reason to doubt that his Honour acted upon a basis such as that to which I have referred: at least, nothing has been shown to suggest that he did not act upon that or other proper basis. Therefore this part of the appeal fails. In my opinion, the appeal should be dismissed with costs. Cripps JA On 27 May 1992 Davidson CCJ made an award that Lexington Constructions Pty Ltd (the employer) pay Mr Coyne (the worker) two lump sums of compensation pursuant to s66 and s67 of the Workers Compensation Act 1987. In each case he was awarded the maximum amount for "a most extreme case". Under s67 he was awarded $41,150 and under s66 he was awarded $82,300. The learned judge also ordered that the employer pay interest on both amounts at the rate of 12 per cent per annum from 4 March 1988 (the date of injury) to 27 May 1992 (the date of hearing). The last mentioned order is the subject of the present appeal. On 4 March 1988, Mr Coyne, the worker, was seriously injured at work when a ladder on which he was standing gave way. As a result he became paraplegic. He commenced proceedings in 1988 seeking orders that he receive certain entitlements under the Workers Compensation Act 1987. These proceedings were discontinued in circumstances, it is said, not relevant to the present appeal. It is, however, not irrelevant to note that as at 15 September 1989 there were proceedings which could, presumably, have been brought on for hearing by the employer. In March 1992, the worker made a fresh application. His case was heard in May 1992. It was not disputed that the worker was entitled to the maximum amount under s66 and s67. The worker contended that the maximum amount payable under s66 ought be calculated by reference to the adjusted amount for "a most extreme case" as at the date of hearing and not as at the date of injury. Davidson CCJ rejected the worker's submission and there is no appeal from that finding. The second issue before Davidson CCJ and that which is subject to appeal was whether interest on the amount of $82,300 should run from the date of the injury (March 1988) until the date of judgment (May 1992) or whether it should run from the date of injury until 13 September 1989. On 13 September 1989 the employer forwarded to the worker's solicitors a cheque in the sum of $82,300 in claimed satisfaction of the worker's entitlement under s66 - that being the maximum it was obliged to pay if the amount were calculated as at the "date of injury". The third issue before Davidson CCJ and also the subject of appeal was whether interest should be awarded on the whole of the amount awarded under s67. As I have said, the amount awarded was on the basis that the worker was "a most extreme case". It was submitted that the learned judge was obliged to apportion the lump sum and to attribute some of it to the future because, in the circumstances, it was beyond argument that the worker would suffer pain and suffering in the future by reason of his injury. Should interest have been awarded on the whole of the amount under s67? In Arklow Pty Ltd v Taavao (11 June 1992 Court of Appeal unreported), it was held that interest could not be awarded on so much of the amount as was referable to the future. In Arklow, the worker was awarded $30,000. $25,000 was stated to be 16 UNREPORTED JUDGMENTS referable to the past and $5,000 to the future. It was held that interest should not be allowed on the $5,000. Mahoney JA said: "T do not wish to exclude, as a matter of principle, the possibility that there may be other cases in which interest can be awarded but where, as in this case the judge awarded interest by reference to pain and suffering likely to be suffered and not actually suffered, then in my opinion he was involved in an error of principle." It was submitted that there is a conflict between the decision of Mahoney JA and that of Clarke JA. It is submitted that Clarke JA decided that it was not open to a judge to award interest on the lump sum under s67 where it was clear that the lump sum had been awarded on the basis of continuing pain and suffering whereas Mahoney JA decided the contrary. With the greatest respect to the submission, I do not understand that what was said by Mahoney JA to be contrary to what was said by Clarke JA although, possibly, my perception is clouded by the circumstance that I said I agreed with both. S67 provides: "(1) A worker who has suffered a loss mentioned in the Table to this Division (or 2 or more of any such losses as a result of the same injury) is entitled to receive from the worker's employer by way of compensation for pain and suffering resulting from the loss or all those losses, in addition to any other compensation under this Act, an amount not exceeding $61,750. (2)... (3) The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the loss or losses. (4)... (5)... (6)... (7) In this section "pain and suffering" means (a) actual pain; or (b) distress or anxiety, suffered or likely to be suffered by the injured worker, whether resulting from the loss concerned or from any necessary treatment." An entitlement to a lump sum under s67 is dependant upon a loss mentioned in the Table being suffered and that the loss is more than 10% of the maximum compensation payable under s66. The worker is entitled to a lump sum for pain and suffering suffered or likely to be suffered. The maximum amount of entitlement is that amount in s67(1) in force at the date of injury. In a less than extreme case a worker is entitled to a proportion of the maximum amount assessed by reference to what that amount was at the date of injury. A finding that pain and suffering has in fact been experienced between the date of injury and the date of hearing establishes that the likelihood has become a reality during that period. It is arguable that on that view of the matter there should be no apportionment at all. However, that is not the common law approach and, in my opinion, ought not be adopted with respect to claims under s67. Moreover, in Arklow it was decided, by implication at least, that the trial judge is entitled to apportion the sum and to provide for the past and the future. URJ LEXINGTON CONSTRUCTIONS PTY LTD v COYNE (Cripps JA) 17 In the present case, it is self-evident that the worker will suffer pain and/or distress or anxiety in the future. Unlike Arklow no apportionment was made by the learned judge. The worker's case was a "most extreme case". The legislation fixes a ceiling. The circumstance that the ceiling may be thought by some to be very low when measured against common law awards for comparable pain and suffering, is, in my respectful opinion, irrelevant to any question required to be decided under s66 or s67. The worker was "a most extreme case". He was entitled to the maximum amount under the legislation. But it does not follow that because there was no need to assess a proportion of "a most extreme case" for the purpose of establishing his capital entitlement, interest became payable on the whole amount. It is self-evident that the worker's pain and suffering went beyond the date of hearing. Although the outer limits of awards at common law are irrelevant for the purpose of establishing the capital entitlement under s67, common law principles with respect to the entitlement to and rate of interest are, in my opinion, applicable. At common law interest is awarded to compensate a plaintiff for being kept out of his money. A plaintiff is not relevantly kept out of his money for pain and suffering until he experiences the pain and suffering. That principle has application with respect to interest on lump sum awards under s67 with the consequence that not only must some allowance be made for the circumstance (if it exists) that the pain and suffering is experienced between the date of accident and the date of hearing but no interest is payable on the money awarded with respect to pain and suffering in the future. There is, however, one significant difference between the common law principles and the principles to be applied to awards under s67 (or s66). In MBP (SA) Pty Ltd v Gogic (1990)171 CLR 657 it was held that at common law the rate of interest on an award of damages for pre-trial pain and suffering should reflect the fact that damages are assessed in the money of the day of trial and not in the money of the day of injury. Under s66 and s67 lump sums are fixed by reference to the money of the day of injury and not the day of hearing. It follows, in my opinion, that the rate of interest on awards under s66 and s67 should not be reduced or lowered as it is at common law, and should be fixed at a rate proper to compensate a worker for being kept out of his or her money. It follows from what I have said, if an award under s67 is in respect of pain and suffering up to and beyond the date of hearing the trial judge is obliged, if he or she considers it appropriate to award interest, to ensure that interest is awarded on only so much of the sum as is referable to pain and suffering in the past. Furthermore, the circumstance that the ceiling imposed by Parliament is less than the ceiling for comparable conditions imposed by judges is, in my respectful opinion, irrelevant with the consequence that if interest is to be awarded, a judge is not entitled to have regard to a perceived inadequacy of the statutory sum and to award it with respect to the past in order that interest is payable on the whole amount. That conclusion, in my opinion, follows whether the case is "a most extreme case" or a proportion of that case. In the present case, it was conceded that the learned judge was entitled to order interest to be paid at the rate of 12% per annum. That concession was made, presumably, to accommodate the circumstance that, unlike common law damages, the worker is not compensated in the money of the day of hearing but is awarded an amount fixed at the date of injury under s67 (see Gogic). It was not submitted that Judge Davidson failed to take account of the circumstance that the worker's past pain and suffering continues from date of injury to date of trial. However, the learned judge erred, in my respectful opinion, in awarding interest 18 UNREPORTED JUDGMENTS on so much of the lump sum of the compensation as was referable to future pain and suffering. The matter will have to be remitted to the Worker's Compensation Court. Did the trial judge err in allowing interest on the sum awarded under s66 from the date of injury (March 1988) to the date of trial (May 1992)? The employer offered to pay the worker his full entitlement under s66 of the Act. On 13 September 1989, it forwarded a cheque in an amount of $82,300 to the worker's solicitors - that being what has now been determined to be the maximum amount payable under s66. Neither the offer made in June nor the letter accompanying the cheque acknowledged the worker's maximum entitlement under s67 of the Act. The worker's solicitors did not reply to the offer of June or to the letter of 13 September. On 31 October 1989, the solicitors for the employer wrote to the worker's solicitors asking them to reply to the letter enclosing the cheque. On 10 November 1989, the employer's solicitors wrote to the worker's solicitors again. They noted that the matter was listed for hearing in January 1990, that all weekly payments (with some exceptions) had been paid and they asked the worker's solicitors to furnish details with respect to continuing entitlements. On 11 May 1992 and just before the hearing before Davidson CCJ, a further cheque in the sum of $82,300 was forwarded to the worker's solicitors being a replacement for the earlier cheque which by then had become stale. Again, the worker's solicitors were asked to make an offer with respect to the worker's entitlement under s67 of the Act. In his judgment, Davidson CCJ, after dismissing the worker's claim that his entitlement should be calculated by reference to adjustments to the nominated amounts at the date of hearing (May 1992) said: "Tn exercising my discretion with regard to the amount of interest, I have given due consideration to the factual material which can be found mostly in Mr Maclean's affidavit. However, it seems to me that it would be proper to award the applicant interest on both the s66 amount and the s67 amount from the date of injury to today's date. The principal reason I have come to that conclusion after weighing up the respective arguments that were advanced by the parties is the fact that the respondent has had the use of the money throughout this rather extensive period. I believe that it would do justice to the applicant if he were to be granted interest for the whole of that period in the circumstances. So far as the percentage amount is concerned, I allow that at 12 per cent over the whole of the period." As [ have said, the rate of interest was not disputed and, although the worker did not ask for interest in his application, no point was taken that interest was not claimable. S19(1) of the Compensation Court Act 1984 provides as follows: "In any proceedings in the Court, the Court may order that there shall be included, in any sum to be paid, interest at such rate as it thinks fit on the whole or any part of the sum for the whole or any part of the period between the date when the cause of action arose and the date when the sum is payable." The employer does not dispute that the power to award interest is discretionary (MBP(SA) Pty Ltd v Gogic (1991) 171 CLR 659 at 662 - 663). The function of an award of interest is to compensate the plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period. In Batchelor v Burke (1981) 148 CLR 448 at 455, Gibbs CJ said: URJ LEXINGTON CONSTRUCTIONS PTY LTD v COYNE (Cripps JA) 19 "Tn accordance with the principle which has been accepted in this Court and in the Privy Council it would therefore not be right to award interest in respect of that portion of the award which represents damages for earnings lost before trial but replaced by payment of workers' compensation. It would not be consistent with that principle to award interest simply to discourage defendants from delaying the settlement of claims. The interest is awarded to compensate the plaintiff for the detriment that he has suffered by being kept out of his money, and not to punish the defendant for having been dilatory in settling the plaintiff's claim." In Haines v Bendall (1991) 172 CLR 60 at 66, the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ makes reference to the compensatory nature of an award of interest and the court approved the statement of the Privy Council in Thompson v Faraonio (1979) 54 ALJR 231 that the reason for awarding interest is to compensate the claimant for having been "kept out of money which theoretically was due to him at the date of the accident". It is not alleged that the learned judge erred in law in failing to give adequate reasons for his decision (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). I assume the learned judge had regard to the circumstances I have referred to above. They had all been debated before him. (I note at one stage it appeared to be suggested that perhaps the correct period from which interest should no longer run was the offer in June 1989. However, that submission, if ever made, is no longer pressed for the very good reason, I assume, that that case was never sought to be made at the trial.) It is not unimportant to note that in September 1989, although the employer offered to pay to the worker his maximum entitlement under s66, it did not offer to pay his full entitlement under s67. The cheque for $82,300 was directed only to one aspect of the worker's entitlement. There was some discussion during the hearing before Davidson CCJ as to why the cheque was not presented. We were told by Mr Hoeben, counsel for the employer, that the worker's representatives appeared to have had some concern that if the worker had taken the money, he may have prejudiced his common law claim for damages. We were also told, however, that it was common ground by September 1989 that there was no problem of election. It was also suggested before Davidson CCJ that the worker's legal representatives may have elected not to present the cheque because they wished to wait until the worker's condition had "stabilised". This submission must have only been faintly pressed bearing in mind that the worker was paraplegic and, on any view of the matter, had an entitlement to the maximum amount under s66 of the Act which had been offered. It seems that the worker's legal representatives did not argue before Davidson CCJ that the cheque was not presented because at that time it was being maintained by him that he was entitled to a lump sum adjusted as at the date of hearing. Mr Hoeben, for the employer, emphasised that the worker was not "kept out of his money" by reason of the conduct of the employer. He submits that he was "kept out of his money" by his own decision to refuse to present the cheque. In my respectful opinion, the worker was "kept out of his money" in the sense that he did not have it. I do not think the cases authoritatively establish that it is a condition precedent for an award of interest that the worker be kept out of his money as a result of the conduct of the defendant. The Court has a discretion to award interest under s19 of the Act. Relevant to that discretion is the circumstance that a person was offered money at a particular time but that, for one reason or another, the offer was not accepted. There are cases in the United 20 UNREPORTED JUDGMENTS Kingdom where dilatoriness on the part of the plaintiff is identified as a reason for a plaintiff receiving an award of interest for less than the period between the date of accident and the date of trial in common law cases (see Bennett v Jones [1977] 2 NSWLR 355, Jefford v Gee, [1970] 2 QB 130, Skittle v Bunny [1988] 1 WLR 847). In the United Kingdom, the giving of interest is mandatory by s22 of the Administration of Justice Act 1969 unless the Court is satisfied there are special reasons why no interest should be given. Dilatoriness by a plaintiff in bringing an action on for hearing is a circumstance entitling the Court to reduce the amount of interest otherwise appropriate. In the present case, the circumstance that a cheque was sent for the full amount of the worker's entitlement under s66 of the Act was a relevant matter for the learned judge to take into account. However, I do not think that that fact (together with the learned judge's rejection of the explanation as to why it was not presented if, indeed, that was the correct explanation) foreclosed his discretion to award interest on the full amount from the date of injury to the date of hearing. It is not said that the plaintiff was precluded from interest from June 1989 when an offer of maximum entitlement under s66 was made. The circumstance that the worker failed to present a cheque for part of his overall claim is, in my respectful opinion, not much different to the worker failing to accept the earlier offer. I can see force in the submission that weight should be given to the circumstance that an employer (or a defendant) has offered to pay the full amount of the worker's (or plaintiff's) entitlement. But this is only to recognise that the Court has a discretion. It may be, as a matter of policy, that plaintiffs can be denied interest over the whole period to discourage them from being tardy or protracting the litigation. In the present case, the employer's argument may have been strengthened had it sent a cheque for the full amount of the worker's entitlements under the Workers Compensation Act 1987. However, in my opinion and notwithstanding that the appeal is by way of a rehearing, it is not appropriate for this Court to intervene (even if it would exercise the discretion differently from the trial judge) unless an error of law has been demonstrated. It is not sufficient that this Court would consider that had it been in the position of the trial judge, it would have taken a different course. It must appear that some error has been made by the learned trial judge in exercising his discretion (House v The King (1936) 55 CLR 499 at 505). I do not understand the argument to be that the learned trial judge mistook facts or has allowed irrelevant matters to affect his consideration. The complaint is that he acted upon a wrong principle in that he took account of the circumstance that the worker had not, in fact, received the money to which he was entitled and that the money was still available during that period for use by the employer. In my opinion, the circumstance that the worker did not receive the money was relevant - and I do not think it was irrelevant that the employer had the use of the money in the meantime. It was argued that because the cheque had been sent, it followed that the employer suffered detriment by having to set funds aside in the event that the cheque was presented. There is no evidence about this matter at all. If the employer had set money aside, that money could have been set aside in a special account. I do not think it has been established that there has been a detriment of a kind that requires this Court to hold that the learned judge's discretion miscarried. As I have said, the circumstances surrounding the failure of the worker to present the cheque was taken into account by the learned judge. The worker was entitled to a sum of money calculated as at the date he was injured. He did not URJ LEXINGTON CONSTRUCTIONS PTY LTD v COYNE (Cripps JA) 21 have use of that money between the date of injury and the date of trial. The circumstance that he could have received part of his entitlement but did not prior to the trial is relevant on the question of discretion but it does not mandate a conclusion that he cannot receive interest on the whole amount for the whole period. Accordingly, the orders I propose are: 1. Appeal upheld in part. 2. Matter remitted to the Compensation Court to be determined according to law. 3. Respondent to pay appellant's costs. Respondent to have a certificate under the Suitor's Fund Act. Appeal dismissed with costs. Counsel for the Appellant: CRR Hoeben Instructed by: Dunhill Madden Butler Counsel for the Respondent: DE Grieve QC/WJ Cooper Instructed by: Taylor and Scott