ROGERS v WENTWORTH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and HANDLEY JJA and BROWNIE AJA 17 August 1994, 12 September 1994 [1994] NSWCA 269 INTEREST — jury awarded plaintiff $2000 damages for assault in 1977. Trial Judge awards interest on damages at rate of 2% until judgment. Total judgment less than $3,000. Defendant ordered to pay one half of plaintiff's costs under SCR Pt52 R24. — Both parties appeal from costs order and plaintiff appeals from award of interest — whether order correct — held: (1) determination of costs issue could be affected by rate of interest to be applied; (2) interest rate of 4% should have been applied since the damages were awarded for an injury which was substantially complete in 1977 and did not relate to the whole period between the assault and the trial: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54; Bennett v Jones (1977) 2 NSWLR 355 applied. ORDER Direct that case be listed for further hearing in light of the above reasons. Priestley and Handley JJA and Brownie AJA On 17 August 1994 there were proceedings in this court arising from the trial earlier this year of a claim brought by Ms K Wentworth against her former husband, Mr Rogers, for damages for an assault he made on her on 29 January 1977. There had been a previous trial of the same cause of action. On that occasion there had also been tried a claim by Mr Rogers against Ms Wentworth for damages for malicious prosecution. The verdicts given by the jury and the judgments in that case were later set aside by this court and a new trial ordered, the costs of the first trial to abide the result of the second. Before the new trial began, the hearing of the malicious prosecution claim was severed from that of the assault claim. So far, only the assault claim has been retried. Mr Rogers' claim for malicious prosecution has not yet been retried. In this year's re-trial of her claim for assault the jury returned a verdict for Ms Wentworth in the sum of $2,000. To this the trial judge added $680 for interest, this figure being calculated by applying an interest rate of 2% to the period between the assault and the trial. Judgment was accordingly entered for $2,680. Mr Rogers was ordered to pay half Ms Wentworth's costs as assessed or taxed. No order was made about the costs of the first trial. Mr Rogers filed a notice of appeal against the costs order. Ms Wentworth filed a document entitled Notice of Cross-appeal but which otherwise took the form of a summons for leave to appeal, the substance of which asserted that Sully J was in error in using 2% in the interest calculation and should have used 4% and that he should have ordered Mr Rogers to pay the whole of Ms Wentworth's costs. She also filed a notice of appeal stating substantially the same grounds. Later, Mr Rogers, realising that leave was needed for an appeal against the costs order against him, filed a summons seeking an extension of time for applying for leave to appeal, and leave to appeal. When the hearing of these proceedings began, Ms Wentworth consented to an extension of time being granted to Mr Rogers for the 2 UNREPORTED JUDGMENTS making of his application for leave to appeal. She also asked the court to hear, at the same time as the other proceedings, two notices of motion she had filed on 16 August. The various proceedings raised a number of rather complicated questions. The court embarked on hearing the questions as if any necessary leave to appeal had been granted, without deciding at that point whether to grant leave for those questions for which it was needed. It seemed clear however that Ms Wentworth had in any event a right of appeal in regard to the question of interest decided by Sully J. It soon became clear that the result of the appeal about interest would affect what other questions need to be decided in the appeal. If Ms Wentworth succeeded in her claim that Sully J should have calculated the interest by using a rate of 4%, then the judgment would have to be increased to $3,360. In this event the relevant costs rule would (subject to one argument of Ms Wentworth, which we will deal with at the end of these reasons) be subR(3)(c)(i) of Pt52 R24 of the Supreme Court Rules. This deals with the costs of proceedings, commenced when Ms Wentworth commenced hers, where the plaintiff recovers more than $3,000 but not more than $6,000. If she failed on the interest point, then the relevant cost rule would be subR(2)(c) which deals with such proceedings where the plaintiff recovers not more than $3,000. The two sub-rules make significantly different provision for the different categories of case with which they deal, and different construction arguments arise on the different sub-rules. If the interest point were to be decided first, it would be necessary to hear argument on, and consider the construction of, only one of the two sub-rules. As, by reason of the court's list and shortness of time it was not in any event going to be possible to dispose of all questions on 17 August, or on following days, the court decided the practical course to follow would be to hear argument on the interest question, deliver its decision on that question as soon as possible, and upon delivering that decision, give directions for the further disposition of the proceedings. This view was made known to the parties, and on this basis the parties argued the interest question fully, the court reserved its decision on it and the proceedings were adjourned. Ms Wentworth's statement of claim, after alleging an assault on 29 January 1977, particularised the injuries alleged to have occurred on that day and then proceeded to give particulars of continuing non-economic damage consequential upon the assault. However, it is clear that evidence was not put before the jury of all the damage particularised. As appears from Sully J's summing-up to the jury very little evidence at all was given concerning the effect upon Ms Wentworth of the assault and that evidence was all confined to what happened on 29 January 1977 and its immediate aftermath. Thus it seems plain that the figure of damages fixed by the jury was referable to the assault itself and the period immediately after the assault. It was agreed between the parties in this court (as it had been before Sully J) that the appropriate rate of interest on an award of damages for pre-trial pain and suffering, as in the present case, was 4%: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 667; Metropolitan Meat Industry Board u Williams (1991) 24 NSWLR 64. In many cases, the pain, suffering, loss of amenities of life and the like which a plaintiff suffers following an injury accrue throughout the period between the injury and the trial. In such cases, a rough and ready rule has been commonly adopted of applying half the applicable interest rate to the whole period to URJ | ROGERS v WENTWORTH (Priestley and Handley JJA and Brownie AJA) 3 accommodate the fact that not all the pain and suffering has accrued immediately upon the happening of the injury. In Bennett v Jones (1977) 2 NSWLR 355, what a court must do in this situation was discussed. Samuels JA, after mentioning the need to use different rates of interest for economic loss between injury and trial and non-economic loss, continued: "But in each case it can rarely, if ever, be right to award interest at the full initial rate upon the whole of an item of loss assessed at the trial. Either the rate of interest, initially selected, or the item itself, must be reduced. In the case of past loss of earnings which has accrued at a more or less steady rate, it will generally be acceptable to apply half the rate of interest to the whole of the amount. In the case of non-economic detriment it may be necessary to adopt a more discriminating approach, requiring some assessment of the varying incidence upon the plaintiff of the pain and inconvenience imposed by the injury. Circumstances may be assumed where the greater part of the damages attributable to past detriment may be referable to the period immediately after injury; and others where the necessity for further surgical intervention has produced a peak of suffering shortly before trial, In other situations the plaintiff's condition may have stabilized early, and the damages may be treated as mounting steadily as the period towards trial runs on. Whatever the particular circumstances, the relationship cannot be ignored between the rate of interest and the rate and period of accrual of the sum to which it is to be applied." (at 380-381) What Sully J did in the present case was to apply half the conventional rate to the whole of the amount. But, as his summing-up made clear, (see especially pp 771-78A) this was one of the rare cases where what the plaintiff had put before the jury in regard to damage was not only very brief, but was quite specifically limited to the assault and its immediate aftermath. When the length of the period between the assault and the second trial is considered, the period of accrual of the damage of which evidence was given in the plaintiff's case was so proportionately small that, on the premises on which the argument about interest proceeded before Sully J, it seems to us that the conclusion had to be that the 4% rate should be applied throughout the period. That means that the interest awarded should have been $1,360, not $680. Judgment should therefore have been entered for $3,360 and in our view the court should at the conclusion of these proceedings make orders to bring about that result. On this footing the present proceedings should continue on the basis that the costs questions which both sides wish to argue should be argued by reference to a judgment figure of $3,360 and subR(3)(c)(i) of Pt52 R24. It was earlier mentioned that an argument of Ms Wentworth would be dealt with at the end of these reasons. Logically this argument is prior to the subR(3)(c)(i) argument we have just dealt with. This argument was that R24 had no application to the matter at all. R24(1)(c)(iv) says that R24 does not apply to proceedings remitted, removed or otherwise transferred to the Court. Ms Wentworth submitted that this court's ordering of a new trial following the appeal arising from the earlier trial was within the meaning of sub para(iv), and that consequently R24 had no application to her case at all. We do not agree with this argument. We think that what R24(1)(c)(iv) is dealing with is proceedings not originally commenced in the court of trial but sent there by some form of transfer, whether it be by remitter, removal, or otherwise. We do not think the rule deals with proceedings originally instituted in the court of trial. In the present case the 4 UNREPORTED JUDGMENTS court was hearing a claim commenced in the court, of which there had been a previous trial, the result of which had been set aside and a new trial ordered. What was happening in the new trial was the hearing of proceedings commenced in the Common Law Division now being heard there for a second 5 time. There is no element of transfer in this. The appeal should proceed on the basis we have indicated. Direct that case be listed for further hearing in light of the above reasons. 10 COUNSEL: Appellant: D MacLEAN Respondent: IN PERSON 15 SOLICITORS: Appellant: KHAN and MacLEAN Respondent: RUSSO and PARTNERS