WILDRIDGE AND SINCLAIR ENGINEERING PTY LTD v LAW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and POWELL JJA 9 June 1994, 18 August 1994 [1994] NSWCA 348 Workers Compensation — Pain and suffering — Lump sum award — Apportionment of- Interest On — Rate of — Date from which payable. In relation to the latter claim, Burke CCJ made an award for $20,000, that sum — which Burke CCJ did not apportion between pre — and post — award pain and suffering — to carry interest at the rate of 18% from the date of injury to the date of award, and at the rate of 8% from the date of award until payment. In May 1988, L, who had been employed by W as a sheet metal worker, sustained serious injuries to his hand as a result of an accident which occurred in the course of his employment. In 1991, an Application was filed in the Compensation Court on behalf of L seeking as against W, which had gone out of business, a continuing award for weekly compensation on the grounds of partial incapacity, awards pursuant to s66, and s67 of the Workers Compensation Act 1987, an award for s60 expenses and interest pursuant to s19 of the Compensation Court Act 1984. In April 1991, Terms of Settlement dealing with the Application for an award under s66 were filed. In February 1992, the Application, insofar as it sought awards for weekly compensation and pursuant to s67, were dealt with by Burke CCJ. W appealed in relation to so much of the award as related to the claim under s67, claiming, first, that, in the circumstances, the amount of the award should have been apportioned; second, that only the amount of the pre-award pain and suffering should have carried interest prior to award; and, finally, that the rate of 18% was excessive. ORDERS 1. ORDER that the Appeal be upheld. 2. ORDER that the Award and Orders of Burke CCJ be varied in the following respects: (a) that para(B) be deleted and in lieu thereof there be substituted: "B. A lump sum pursuant to s67 of $20,000.00 such sum to be apportioned as to $10,000.00 for pain and suffering prior to the date of this Award and as to the balance in respect of pain and suffering from and after the date of this Award" and; (b) that para(D) be set aside and in lieu thereof there be substituted the following: "D. Interest on $10,000.00 part of the lump sum Award pursuant to s67 at the rate of 14 percent per annum from 27th May 1988 to 31st December 1988; at the rate of 12 percent per annum from Ist January 1989 to 31st December 1990; and at the rate of 8 percent per annum from Ist January 1991 to 21 st February 1992"; 3. ORDER that the Respondent pay the Appellant's costs of the Appeal. ORDER that the Respondent have a Certificate pursuant to the provisions of the Suitors Act. Mahoney JA I agree with the orders proposed by Powell JA and generally with his reasons. The decision of this Court in Marsland v Andjelic [No 2] (Court of Appeal, 24 December 1993, not yet reported) was relied on by the appellant. It is a decision the implications of which, for several reasons, may require examination in a later case. However, I do not think that the present case is the 2 UNREPORTED JUDGMENTS case in which this Court should review this area of the law. I agree with Priestley and Powell JJA that the appeal should be upheld and that the orders proposed by Powell JA be made. Priestley JA I agree with Powell JA. Powell JA On the 27th May 1988, at a time when he was employed by the Appellant as a sheetmetal worker, the Respondent sustained severe injuries to his left hand, those injuries including lacerations to his left index, and little, fingers, as well as damage to the nerves of one of the figures and the destruction of a small area of skin at the base of his ring finger. Despite the fact that the Respondent was taken promptly to the Prince of Wales Hospital, where he was admitted, and where he underwent surgery to repair the tendons in his fingers which had been damaged, to repair the damaged nerves in the finger which had been damaged and to replace the area of missing skin, and despite the fact that he underwent further surgery on a number of occasions over the course of the following year, or thereabouts, the Respondent has been left with a hand which has suffered a significant loss of efficient use - it would seem that, by 1991, the parties were agreed that there had been a 50% loss of the efficient use of both the forefinger and little finger of the left hand. It would appear that, following a period of treatment and rehabilitation, during which the Respondent was paid the appropriate amounts of compensation provided for by the Workers Compensation Act 1987 ("the Act'), the Respondent returned to the employ of the Appellant, in which employ he remained until the Appellant's business was closed. Although unemployed between mid-1990, when the Appellant's business closed, and 12 April 1991, when he obtained employment with Lover's Fashion Manufacturers, as a packer in their despatch department, the Respondent thereafter remained in employment with his new employer until February 1992 when his Application for compensation came before, and was determined by, Burke CCJ in the Compensation Court - the Respondent's earnings in his new employment were some $74.00 per week less than had been his normal earnings during his employment with the Appellant. Although the Respondent's Application for a Determination appears to have been filed in early January 1991, it was thereafter replaced by a Proposed Amended Application which appears to have been filed in March 1991. In his Proposed Amended Application, the Respondent sought a continuing award for payment of weekly compensation, an award of a lump sum pursuant to the provisions of s16 and s66 of the Act in respect of the loss of the efficient use of the fingers of his left hand, an award pursuant to s60 of the Act in respect of medical and other like expenses, an award pursuant to s67 of the Act in respect of pain and suffering, and, finally, an order for interest pursuant to s19 of the Compensation Court Act ("the Court Act") "on arrears of compensation at such rates and during such periods as the Court might determine". It would appear that, in late April 1991, there were filed with the Compensation Court Terms of Settlement which provided (inter alia) for the payment by the Appellant to the Respondent of lump sums computed pursuant to the provisions of s66 of the Act in respect of the loss of the efficient use of the Respondent's fingers, and which also provided that the Respondent's claim for compensation pursuant to s67 of the Act thereafter be listed for hearing before the Court. URJ WILDRIDGE AND SINCLAIR ENGINEERING PTY LTD v LAW (Powell JA) 3 As I have previously indicated, the Respondent's Application came before Burke CCJ in February 1992, the Respondent's evidence being taken on the 20th and 21 st February 1992, on which latter day His Honour, following the submissions of counsel, delivered Judgment. In his Judgment, Burke CCJ, after recording some of the history and the medical, and other, evidence as to the nature and extent of the Respondent's disability, continued (AB 63-64): "The Act enjoins that at least inter alia, one will have regard to the severity of the injury, the degree of pain and suffering and/or distress, and the duration for which that will probably subsist. In forming some assessment pursuant to s67, as far as severity is concerned, I think the injury is more severe than the mere physical loss, because of pre-existing disability of the right hand. It inhibits the applicant in a number of ways. It certainly restricts the type of things he can do. With his language disability, functioning in this country, he was patently a worker who was dependent on his physical prowess, and his manual dexterity rather than upon any intellectual attainments in a wide variety of the employment market. He is patently now inhibited. In fact, as I suggested, I find an element of surprise io that he so readily obtained himself his current employment. So when one comes to judge the severity of injury, I think this man has had a severe injury, not merely in the physical sense of the disability that results from the loss of use of his dominant hand, but in the impact that makes in the ordinary day to day life, and the capacity to perform useful work. The degree of pain and suffering, whatever might be said to be the initial injury, certainly the surgical consequences thereafter, the series of failed operations, would not have been pleasant, at least not after the anaesthetic wore off, and the conservative treatment that went on etcetera, must have subjected the applicant to a fair degree of discomfort. He indicates that he still suffers a fair degree of discomfort, that minor bumps, jars etcetera to his injured left hand, particularly the index finger, could produce quite substantial pain. He indicates that in his present job, mere inadvertence, probably 2 or 3 or 4 times a week, and he manages to slide something across a bench and catch that left index finger in doing so, and producing fairly substantial pain. The applicant also professes to some embarrassment. Certainly his right hand, which is not injured for this purpose, does not look too good, and his left hand is now fairly substantially disfigured and he suggests that he tends to keep his hands in his pockets. He is a little bit diffident about his relationships with the other sex because of the problems with his hands. So by and large I can understand that degree of embarrassment and the degree of upset or distress, as well as the physical pain. Now when one comes to look at it overall in that context, that to me also seems to be a fairly substantial element, and the duration, there is no suggestion that the situation is going to improve. Dr Milroy counselled against virtually any active treatment, preferring that the worker should bear the ills he has, rather than ny to others that he knows not of. He was 26 at the time of the injury, which gives a fairly lengthy period during which the disabilities will persist and probably the pain and suffering. I would think probably with increasing age, a bit of the embarrassment might abate a bit, because by the time he gets to 70, he will not care too much what the girls think about his hands, but by and large he has a long duration to put up with a fairly substantial degree of pain and distress, and a fairly severe Injury. 4 UNREPORTED JUDGMENTS Thereafter, having (AB at 65) expressed his view that the proper amount to award pursuant to s67 was $20,000.00, Burke CCJ continued as follows (AB at 65 and 66): "The applicant claims interest, presumably on the arrears of weekly payments, which probably do attract interest, and certainly on the lump sum pursuant to s67. Neither party have made the usual submissions, though I would probably take it as read that they were made, the applicant suggesting that interest should run from the date of injury. In respect of the totality of the sum, the respondent suggesting that it should not commence until such time as a claim is made, and in any event the capital sum should be apportioned in respect Of past pain and future pain and interest awarded on that referable to the pat. For reasons which I have given in a variety of cases, it is my view that there is no distinction between the lump sum provided by s67 and the lump sum provided by s66. Both are Statutory lump sums, fixed as at the date of injury, both become due and payable as at the date of injury. There is no more reason in my view to split a lump sum under s67 into pain and suffering referable to periods before and after, than there is to split the lump sum under s66 in the similar periods. Patently s66 envisages a temporal elements(sic), since it is a permanency of disability that is the fundamental root of any entitlement, transient disabilities, though they may be substantial, do not result in any award under s66. It is an in-built span of permanency that is a necessary factor, if the compensation is for the disability over time. One could equally say, that should be split into the experience of disability in respect of the discrete periods before and after the date of trial. Nobody has suggested it, I would think for very good reasons, and I think that equally, the suggestion of splitting it into s67, is inappropriate. Therefore such right to interest as the applicant may have, in my view, attaches to the totality of the sum awarded under s67. As to the question from when interest should arise in this particular case, it has its distinctions from a fairly wide variety. It is fairly clear that the applicant suffered a traumatic injury. It is fairly clear that he there and then had a fairly substantial disability. It is fairly clear that the employer was at all times apprised of his ongoing treatment. It is fairly clear that both the applicant and the employer were at all times since injury, aware that he had substantial disability of the hand, and that it was not getting any better. Therefore it seems to me that in this particular case, it is appropriate that interest should run from the date of injury." Then, having recorded, in summary form, the findings upon which be based bis Award, His Honour proceeded (AB at 66 and 67): "2. I hereby order and award that the respondent pay the applicant A. A weekly payment of $74 a week from 12 April 1991 to date and continuing. B. A lump sum pursuant to s67 of $20,000 in respect of pain and suffering resulting from the losses. C. Cost (sic) Pt29 and including a certificate for an advice on evidence. D. The interest on the lump sum award pursuant to s67 at the rate of 18 percent per annum from 27 May 1988 to 21 February 1992. E. Credit against the award of weekly payment (sic) be allowed to the respondent in respect of payments on and after 12 April 1991. URJ WILDRIDGE AND SINCLAIR ENGINEERING PTY LTD v LAW (Powell JA) 5 F. The respondent pay interest on the sum of the arrears due as at 21 February 1992 at the rate of 8 percent per annum. " His Honour did not, at any stage during his Judgment, record what were the reasons which motivated him to select the rate of 18 per centum per annum as the appropriate award of interest to be paid in respect of the award under s67 nor the rate of 8 per centum per annum as the appropriate rate of interest to be paid in respect of the arrears of weekly compensation. The formal Award to give effect to His Honour's Judgment appears to have been settled, and no doubt, entered, in the Compensation Court on 21st May 1992. Being dissatisfied with His Honour's Award, the Appellant filed a Notice of Appeal, which Notice of Appeal appears thereafter - but when, is not clear - to have been amended. In a Further Amended Notice of Appeal, upon which the Appellant sought to proceed on the hearing before us. the Appellant sought to rely upon the following grounds of Appeal: " "1. That His Honour erred in law in interpreting the provisions of s19 of the Compensation Court Act 1984 to award interest upon an award pursuant to s67 of the Workers Compensation Act 1987 ('the act") from the date of injury rather than the date of notification of the first quantification of loss pursuant to s66 of the Act, contrary to established principle. 2. That His Honour was in error in failing to apportion the award pursuant to s67 of the Act as to the periods pre and post hearing for the purpose of awarding interest. 3. That His Honour erred in law in awarding interest at the rate of 18% per annum on the sum awarded under s67 up to the date of hearing such rate of interest be excessive. 4. That His Honour erred in law in interpreting the provisions of s19 of the Compensation Court Act 1984 to award interest pursuant to s66 of the Act from the date of injury rather than the date of notification of the first quantification of the loss. 5. That His Honour erred in law in interpreting s19 of the Compensation Court Act 1984 so as to order interest upon the whole of the Award under s67 of the Act from the date of injury. 6. That the amount ordered for interest should have been at the rate of 14% for the year 1988, 12% for the years 198 and 1990 and 8% for the years 1991 and 1992." Although no formal leave was granted to the Appellant to file the Further Amended Notice of Appeal, the Appeal proceeded as if such leave had been granted. Despite the form of the Further Amended Notice of Appeal, the Appellant abandoned any reliance upon ground 1, no doubt because of the decision of this Court in Lexington Constructions Pty Ltd v Coyne! ("Lexington"). In seeking to support the second of the grounds taken in the Further Amended Notice of Appeal, Mr M Batten, who appeared for the Appellant, relied upon the decision of this Court (Mahoney, Clarke and Cripps JJA) in Arklow Pty Ltd (t/as Champion Press) v Taavao? ("Arklow'") which Judgment expressed the view that, as a general rule, when an Award was made pursuant to s67 of the Act by reference to both past and future pain and suffering, it was appropriate that the 1. 24 December 1992 (unreported) 2. 11th June 1992 (unreported) 6 UNREPORTED JUDGMENTS Award be apportioned between past and future pain and suffering, since it was not appropriate to provide for interest on so much of the Award as represented future pain and suffering. Having done so, Mr. Batten then drew attention to those parts of Burke CCJ's Judgment which made it clear, first, that the Award of $20,000.00 pursuant to s67 of the Act was intended to compensate the Respondent for both past, and future, pain and suffering and, second, that this notwithstanding, that His Honour was of the view that the Respondent was entitled to interest on the whole of the award. When he came to deal with ground 3 in the Further Amended Notice of Appeal, Mr Batten, without demur on the part of Mr PE Blacket, who appeared for the Respondent, informed us of the following further facts: 1. that, prior to the adoption of the "General Agreement on Interest" to which I will shortly refer, no common approach to the rate or rates of interest awarded in respect of awards pursuant to s66 or s67 of the Act, the commencing date for the calculation of interest, or the period in respect of which interest was to be calculated had been adopted by the Judges of the Compensation Court or the Commissioners; 2. that, in about mid-to late-1992 - one assumes, following ie delivery of this Court's Judgment in Arklow - the Judges of the Compensation Court and the Commissioners adopted a "General Agreement on Interest" which General Agreement was in the following form: GENERAL AGREEMENT ON INTEREST s67. The sum awarded IS split into portions representing past and future entitlements. Interest is awarded ONLY on the portion referable to the past. S66. PERIOD Normally interest is awardable from the DATE OF INJURY. In the case of insidiously evolving disabilities the same commencing date is appropriate though some may adopt a date of stabilisation approach? S66 AND 67. RATE The general rates at which interest is awardable is related to the date of injury. The rates generally adopted are: Date of Injury 1987/88 1989/90 1991/92 Rate of Interest 14% 12% 8% WEEKLY PAYMENTS Interest is awarded on the SUM of the weekly payments under the Award. The commencing date is the DATE OF COMMENCEMENT OF THE WEEKLY PAYMENTS. The rate of interest is HALF of the MEDIAN RATE as prescribed under the Supreme Court Act in the period in which weekly payments are due. 3. that, since the adoption of that General Agreement, the practice of the Judges of the Compensation Court and of the Commissioners has, for the most part, followed that provided for in the General Agreement; URJ WILDRIDGE AND SINCLAIR ENGINEERING PTY LTD v LAW (Powell JA) 7 4. that, where interest is to be calculated over a period of years during which the agreed rate of interest has varied, the practice has been to calculate interest by reference to the relevant rate for each of the years in respect of which interest is payable. Having done so, Mr Batten then sought to support ground 3 in the Further Amended Notice of Appeal by relying upon the Judgment of this Court (Kirby P Meagher and Cripps JJA) in Bruttcorn Pty Ltd t/as Cobargo Motors and Bermagui Automotives v Pyke? ("Bruttcorn") in which Judgment the Court, first, held that the rate of interest of 17.3% per annum which Manser CCJ had ordered payable in respect of so much of an award pursuant to s67 as represented past pain and suffering was excessive, and, second, ordered that interest be paid on the said sum at the rate of 8.6 per centum per annum from the date of injury to the date of the original award. The grounds upon which Mr Blacket sought to support those parts of the award of Burke CCJ the subject of this Appeal were as follows: 1. as to ground 2 in the Further Amended Notice of Appeal: (a) the decision of this Court in Arklow is wrong and is inconsistent with the juristic concepts of interest articulated in Ruby v Marsh' ("Ruby"); see also State Government Insurance Office v Biemann5 ("Biemann'")); (b) the amounts by reference to which compensation pursuant to the provisions of both s66 and s67 of the Act are to be calculated are those in force at the date of the applicant worker's injury (Bresmac Pty Ltd v Starr6) ("Bresmac") it following that, as the applicant's right to such amount is to be regarded as having accrued as at that date, the applicant worker is to be regarded as having been "kept out of his money" between that date and the date of the award; the consequence of this being that, in accordance with the concepts articulated in Ruby the applicant worker is entitled to have interest on the whole amount awarded pursuant to both s66 and s67 of the Act as from that date to the date of award; (c) support for that view is provided by the decision of this Court (Kirby P Mahoney and Meagher JJA) in Marsland v Andjelic (No 2)7 ("Marsland"); 2. as to ground 3 in the Further Amended Notice of Appeal: (a) the rate of interest provided for by Burke CCJ in his Award ought not to be regarded as having been excessive since, if, instead of that rate, interest had been allowed at the rates, and for the periods, provided for in Schedule J to the Supreme Court Rules 1970, the sum allowed, when averaged out over the whole period from the date of injury to the date of Award, would represent interest at the rate of 17 percent per annum; (b) in any event; the selection of the rate of interest to be applied being one which lay within the discretion of Burke CCJ, his Order ought not to be set aside unless - which it was submitted had not been demonstrated - it could be shown that His Honour's discretion miscarried. It may be convenient if, before I turn to consider the submissions which have been advanced on behalf of the parties, I record so much of the provisions of the Act and of the Court Act as are relevant for the purposes of these proceedings. 3. (25 March 1993 (unreported)) 4. (1975) 132 CLR 642 5. (1983) 154 CLR 539 6. (1992) 29 NSWLR 318 7. 24th December 1993 (unreported) 8 UNREPORTED JUDGMENTS S67 of the Act provides inter alia as follows: "67(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 ($41,7500). (2) This section does not apply if the compensation paid or payable under s66 for the loss or all those losses is less than 10 per cent of the maximum amount from time to time referred to in s66(1). (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. (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. " S19 and s19A of the Court Act provide inter alia as follows: "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. 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: and (c) form part of the sum ordered to be paid, but not so as to require the payment of interest upon interest." As will be apparent from the submissions of the parties which I have set out in outline above; at the forefront of those submissions, insofar as they related to ground 2 in the Further Amended Notice of Appeal, was the question whether this Court ought to regard the decision in Arklow as having been correctly decided and, thus, as being prima facie determinative of ground 2 in the Further Amended Notice of Appeal. Mr Blacket accepted that, unless the decision in Arklow were to be overruled, ground 2 in the Further Amended Notice of Appeal ought to be upheld and, accordingly, he sought leave to reargue the matters so recently determined by this Court. For this purpose, the Court invited Mr Blacket to outline the nature of the submissions he would wish to make if the leave sought were granted and the authorities upon which he would seek to rely in argument in the event that the URJ WILDRIDGE AND SINCLAIR ENGINEERING PTY LTD v LAW (Powell JA) 9 leave sought were granted. However, when Mr Blacket had concluded the outline of his argument, the Court indicated that it would not grant the leave which was sought. It is appropriate that I should record, here, my reasons for joining in the indication given by the Court in this respect. The principles which this Court applies in determining whether or not it ought to review its own earlier decisions are, I believe, clear and have been long established. They were recently discussed in Clutha Developments Pty Ltd v Barry. In the course of his Judgment - in which Judgment Samuels and Priestley JJA and Hope A-JA concurred - Gleeson CJ said ((supra) at 99): "This Court is not bound by its own decisions and makes no claim to infallibility. It has the power to overrule Fraser Credits. The Court is, however, guided in the exercise Of all its powers, including its power to overrule earlier decisions, by certain principles. One such principle is a principle of restraint embodied in the axiom stare decisis. As Brennan and Deane JJ observed, in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 29, citing Broom's Legal Maxims, that axiom attributes authority to judicial precedents in order 'to keep the scale of justice steady, and not liable to waver with every new judge's opinion'. Another equally important principle, however, is that the Court should give effect to the intention of Parliament. If it concludes that an earlier decision construing a statute is erroneous then the corollary is that to apply the earlier decision is to defeat the intention of Parliament. Clearly, there is a tension between these two principles. Neither can be disregarded. No one suggests that every time this Court is confronted with a question of statutory construction it will resolve it for itself unconstrained by its earlier decisions. If it were so, this Court might overrule Fraser Credits and a differently constituted Court next year might prefer the decision in Fraser Credits to the decision of this Court, and give effect to that preference by holding appeals such as these to be incompetent. On the other hand, no one suggests that a slavish adherence to precedent could be allowed to override a conviction that an earlier decision, especially a decision as to the meaning of a statute, was wrong." and later (supra) at 100: "However, making due allowance for the need for retaining flexibility and avoiding intransigence, it is generally accepted that before it is appropriate for an appellate court to overrule one of its own earlier decisions it must entertain a strong conviction as to the incorrectness of the earlier decision. Where the point concerns the meaning of unclear statutory language, and the view expressed in the earlier decisions is well and truly open, a mere preference for a different view will not suffice." Although, as will be apparent from the outline of their submissions which I have set out above, counsel's submissions were focussed upon the correctness or otherwise of the decision of this Court in Arklow it is to be recorded that that decision does not stand alone; rather, it was but the first of a number of decisions in which this Court was required to consider and rule upon the correct principles to be applied when questions relating to the awarding of interest upon Awards pursuant to (inter alia) s66 and s67 of the Act were concerned. Further, it is to be noted that, in a number of those decisions, consideration was given to the relevance to such cases of the principles discussed in such decisions as Ruby; Feeney v Doolan?; Fire and All Risks Insurance Co Ltd v Callinan!°® 8. (1989) 18 NSWLR 86 9. (1977) 1 NSWLR 601 10 UNREPORTED JUDGMENTS ("Callinan"); Cullen v Trappell!! Batchelor v Burke!2; MBP (SA) Pty Ltd v Gogic!3 ("MBP") and Haines v Bendall!4. Two things, as it seems to me, flow from this, they being: 1. that it cannot be said that the decision of this Court in Arklow was, nor that the subsequent decisions of this Court which approved and applied that decision were, made per incuriam and in ignorance of the decisions of the High Court upon which the later decision of this Court in Marsland was based; and 2. that not only have the basic principles which were enunciated in the decision of this Court in Arklow been approved and applied in later decisions of this Court but that those basic decisions have in some respects been refined and made more clear. Against the possibility that some demonstration that this is so is thought necessary, I will record, below, what are the relevant decisions of this Court and what was decided in each of them. Arklow was an Appeal from an Award made by Egan CCJ, by which Award His Honour (inter alia) awarded the successful Applicant pursuant to the provisions of s67 of the Act a sum of $30,000.00 - which sum was intended to represent compensation for pain and suffering both before and after the date of the Award - and ordered that the whole of the sum so awarded carry interest from the date of injury to the date of the Award. Although the Court (Mahoney, Clarke and Cripps JJA) recognised that there might be cases in which it was appropriate to make an Award pursuant to the provisions of s67 of the Act solely in relation to pre-Award pain and suffering, the Court determined, first, that, if an Award pursuant to s67 of the Act were intended to provide compensation for both pre-and post-Award pain and suffering, the amount of the compensation should be apportioned and interest made payable only in respect of pre-Award pain and suffering. The decision of this Court in Arklow, which was delivered in June 1992 was followed in December 1992 by two decisions of the Court, they being Lexington and Bresmac. Lexington was an Appeal from an Award made by Davidson CCJ by which Award His Honour (inter alia) awarded the successful Applicant pursuant to s67 of the Act the then maximum sum of $41,150.00 and, further, ordered that the whole sum bear interest from the date of injury to the date of Award, no apportionment between pre-and post-Award pain and suffering being made for the purpose of calculating interest. Three things might be noted about the decision of the Court (Kirby P Mahoney and Cripps JJA), they being, first, that the decision of the Court in Arklow was approved; second, that the Court recognised that there may be cases in which, even though the amount awarded pursuant to s67 of the Act was that appropriate to "the most extreme case", it would be proper to appropriate the whole amount to pre-Award compensation and to award interest on the whole amount; and, third, that the Court recorded its view that the principles governing the selection of an appropriate rate of interest 10. (1978) 140 CLR 427 11. (1980) 146 CLR 1 12. (1981) 148 CLR 448 13. (1991) 171 CLR 657 14. (1991) 172 CLR 60 URJ WILDRIDGE AND SINCLAIR ENGINEERING PTY LTD v LAW (Powell JA) 11 which bad been laid down by the High Court in MBP were not appropriate to be applied in the selection of an appropriate rate of interest for the purposes of s19 of the Court Act. Bresmac was an Appeal against Orders and Awards made by Manser CCJ in pursuance of s66 and s67 of the Act. Although - since the worker had died prior to his application for compensation coming on to be heard by His Honour - the Award which His Honour had made pursuant to the provisions of s67 of the Act was set aside (s67(5)) of the Act) it was not necessary for the Court to deal with the question of apportionment of an Award made pursuant to the provisions of s67 of the Act, the Court (Priestley, Handley and Sheller JJA) recorded its view that the principles laid down by the High Court in MBP did not apply to the calculation of interest payable on an amount awarded pursuant to the provisions of s66 of the Act. Bruttcorn was an Appeal against Orders and Awards made by Manser CCJ by which His Honour (inter alia) awarded the successful Applicant pursuant to the provisions of s67 of the Act the sum of $13,900.00, $4,000.00 of which he apportioned to pre-Award pain and suffering, and ordered that both the sum which he awarded pursuant to s66 of the Act and the sum of $4,000.00 carry interest at the rate of 17.3 percent per annum. While, yet again, recording its view that the principles laid down by the High Court in MBP had no application to the determination of an appropriate rate of interest to be awarded in respect of awards made pursuant to the provisions of s66 and s67 of the Act, the Court (Kirby P, Meagher and Cripps JJA) - which referred inter alia to such decisions as those in Ruby and Callinan as well as to MBP - nonetheless held that a rate of interest of 17.3 per centum per annum was excessive and that an appropriate rate of interest was 8.6 percent per annum. The decision of this Court in Marsland upon which Mr Blacket relied to support his application to have this Court's decision in Arklow reviewed was a decision, not in relation to the principles applicable to the payment of interest upon awards made pursuant to the provisions of the Act, but a decision relating to the principles applicable to the payment of interest upon judgments for damages for personal injuries awarded pursuant to the provisions of the Motor Accidents Act 1988 ("the Accidents Act'). In that decision, the Court (Kirby P and Meagher JA; Mahoney JA diss) held (inter alia) that, in a case in which, pursuant to the provisions of s73 of the Accidents Act, it is appropriate for the Court to award interest on an award of damages "non-economic loss" - which is defined in s68 of the Accidents Act as meaning pain and suffering, loss of amenities of life, loss of expectation of life, and disfigurement - the award of damages need not be apportioned between the past and the future, and further that the component of any award of damages which related to non- economic loss ought to carry interest from the date of injury to the date of judgment, the justification for that approach being recorded in the following passage in the Judgment of the majority (Transcript of Judgment at 5): "Tt is clear enough that 'non-economic loss' under the Act is similar to, but not identical with, general damages under the general law in the items included under that heading. General damages, have no limit, unlike 'non-economic loss'. In the present case the Court has decided that the ceiling for 'non-economic loss' has been reached. It is, we believe, implicit in the decision that if the question were to determine the quantum of 'general damages' apart from statute, a still higher figure would have been reached. In these circumstances, where the quantum of 'non-economic loss' is arbitrarily restricted, we would be disposed not to 12 UNREPORTED JUDGMENTS apportion between the past and future, as to do so would involve carrying artificiality to an extreme (even in cases of general damages an apportionment is not always necessary: see Cullen v Trappell (1980) 146 CLR 1 per Gibbs CJ at 29). It follows that the Plaintiff is entitled to interest on this component in full from the date of injury to the date of judgment." While, at first sight, the decision of this Court in Marsland would appear to be inconsistent with, and thus would justify a review of, this Court's decision in Arklow and the subsequent decisions which have applied the principles therein set out, further consideration, in my view, would reveal that this is not so. In contrast to the provisions of s19 of the Court Act, which confers upon the Court, in any proceedings in the Court, a power to order that interest should be included in any sum to be paid at such rate as the Court thinks fit on the whole or any part of the sum for the whole or part of the period between the date when the relevant injury was sustained and the date of the award, s73 of the Accidents Act proscribes the awarding of interest on any award of damages except in one or other of the circumstances set out in subs2 of that section. The difference in the language of the two sections is, as it seems to me, of significance for it demonstrates that in contrast to the legislative policy evidenced by s19 of the Court Act it was the policy of the legislature that, as from the date of the coming into force of the Accidents Act, claims for damages for personal injury made pursuant to that Act ought to be assessed and settled as soon as it was reasonable and appropriate to do so and that it was only in such cases where the Defendant had not taken such steps as were reasonable and appropriate to assess the merits of the claimant's claim or had not made a reasonable offer of settlement, in which interest was to be payable. The legislative policy revealed by s19 of the Court Act thus being different from that revealed by s73 of the Accidents Act, the decision of this Court in Marsland can thus be seen as not being inconsistent with, nor as justifying a review of, this Court's Judgment in Arklow and in the subsequent decisions which applied the principles set out in Arklow. It was for these reasons that I joined with the other members of the Court in indicating to Mr. Blacket that I would not be prepared to review the decision of the Court in Arklow. As I have earlier noted, Mr Blacket accepted that, unless leave to reargue the questions considered by this Court in Arklow be granted, the Appeal must, to that extent, be allowed; this notwithstanding as will be apparent from the submissions which I have set out above, Mr Blacket sought to support so much of the Award made by Burke CCJ as provided for interest to be payable at the rate of 18 per centum per annum from the date of injury to the date of the Award. If, contrary to the view which I have recorded above, I had been of the view that this Court's decisions in Arklow ought not to be followed, so that the only question remaining to be determined on this Appeal was whether or not the rate of interest provided for by Burke CCJ in his Award was excessive, then there would, in my view, have been much to be said for the view that, notwithstanding this Court's decision in Bruttcorn, this Court ought not to intervene in relation to a matter which lay in the discretion of a trial Judge. However, as the failure of Burke CCJ to apportion the amount to be awarded pursuant to s67 of the Act was an error which requires this Court to set aside the Award at least to that extent, it seems to me that it is for the Court which ultimately determines how the sum to be awarded pursuant to s67 of the Act is to be apportioned to determine what is the appropriate rate of interest to be applied to so much of the Award as relates to past pain and suffering. URJ WILDRIDGE AND SINCLAIR ENGINEERING PTY LTD v LAW (Powell JA) 13 While, in the normal case, it may be that, where a Judge has failed to apportion an amount awarded pursuant to the provisions of s67 of the Act, the matter will need to be remitted to the Compensation Court in order that the question of apportionment might be determined (see, for example, this Court's decision in Lexington) the parties - no doubt because of the comparative smallness of the sums involved - have indicated to the Court that they would not object to the Court making such order as was thought to be appropriate in order that the costs involved in having the matter remitted to the Compensation Court for a fresh determination be avoided. Notwithstanding the parties' invitation in this respect, I would have been reluctant to accede to it had it not been for the fact that, during the course of the Hearing, Mr Batten - without apparent demur on the part of Mr Blacket - suggested that an appropriate apportionment would be one half for pre-Award and one half for post-Award pain and suffering (see T at 10). This being so, it seems appropriate for this Court to adopt the suggested apportionment. So far as the question of interest is concerned, it seems to me that, in the light of this Court's decision in Bruttcorn, and of the General Agreement as to interest to which I have earlier referred, it would be appropriate to adopt the rates of interest set out in the General Agreement. For these reasons, I would propose that the following Orders be made: 1. ORDER that the Appeal be upheld. 2. ORDER that the Award and Orders of Burke CCJ be varied in the following respects: (a) that para(B) be deleted and in lieu thereof there be substituted: "B. A lump sum pursuant to s67 of $20,000.00 such sum to be apportioned as to $10,000.00 for pain and suffering prior to the date of this Award and as to the balance in respect of pain and suffering from and after the date of this Award" and; (b) that para(D) be set aside and in lie thereof there be substituted the following: "D. Interest on $10,000.00 part of the lump sum Award pursuant to s67 at the rate of 14 percent per annum from 27th May 1988 to 31st December 1988; at the rate of 12 percent per annum from Ist January 1989 to 31st December 1990; and at the rate of 8 percent per annum from Ist January 1991 to 21st February 1992"; ORDER that the Respondent pay the Appellant's costs of the Appeal. ORDER that the Respondent have a Certificate pursuant to the provisions of the Suitors Act. RY Counsel for the Appellant: M Batten Instructed by: Shaw McDonald Counsel for the Respondent: PE Blacket Instructed by: Turner Freeman