HOLLAND v MULLINS NEWSAGENCY PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and COLE JJA 23 July 1996, 23 July 1996 [1996] NSWCA 249 Workers Compensation benefits amendment act — interest on award for non-economic loss — date from which interest should run — interest allowed on whole sum Clarke JA The appellant was injured during the course of her employment on 12 October 1987. She sued her employer, claiming damages in respect of her injuries, and her case was heard by Justice Newman and a jury at Wagga Wagga on 26, 27 and 28 July 1994. At the end of the trial the jury found a verdict for the appellant, and awarded her damages which included a component for non-economic loss which was quantified at $81,000. This sum represented 45 percent of $180,000, which was the maximum sum which could be awarded for non-economic loss under s151G of the Workers Compensation Act 1987 in respect of an injury which occurred in 1987. Following the jury verdict, his Honour ruled that he would award the appellant interest on the non-economic loss calculated upon the basis that interest be allowed on one half of the jury award, that is $40,500, and half the average court rate of interest from the date of injury to the date of Judgment. The appellant has appealed from that decision, and on the appeal three questions arose: (1) Should the interest run from the date of accident, 12 October 1987, or the date when the relevant section of the Workers Compensation Benefits Amendment Act 1989 was proclaimed, that is, 1 February 1990? (2) Should interest be calculated at ordinary commercial rates, or at some other rate? (3) Should interest be allowed on the total figure of $81,000 or some lesser sum representing the compensation for the loss suffered to the date of trial only? Before the hearing, the parties agreed that the answer to question (2) had been provided by the High Court in Andgelic v Marsden (1996) 70 ALJR 435, and was to the effect that commercial rate should be applied. That left only questions (1) and (3) to be answered. In my opinion the majority decision in Andgelic, although concerning the Motor Accidents Act 1988, also dictated the answers to both those questions. Before coming to those answers, let me provide a short background. In 1987 the legislature in New South Wales abolished common law damages in respect of both motor vehicle accidents and claims by workers against their employers, see the Transport Accident Compensation Act 1987 and the Workers Compensation Act 1987. In 1988 the Motor Accident Act was passed, which repealed the Transport Accident Compensation Act, and reinstated damages awards, albeit modified by the statute. 2 UNREPORTED JUDGMENTS In 1989 the Workers Compensation Benefits Amendment Act was passed, which repealed the sections of the Workers Compensation Act 1987 abolishing claims for damages at common law, and replaced them with sections providing for modified common law damages. The relevant sections came into law on 1 February 1990. Although there were some differences between the statutory provisions in each Act restoring claims for damages, the parties argued the appeal upon the basis that those differences were not relevantly of substance, and did not affect the application of the principles discussed in Andgelic to the facts of the case. The arguments put by both parties went to the effect of a majority Judgment in Andgelic. In my opinion the application of the principles there discussed lead to the conclusion that interest should run from 1 February 1990. In their Judgment, the majority said, at 439: "On the view we take of interest, namely, that is the price to be paid for keeping a plaintiff out of money to which he or she is entitled, neither s94 of the Supreme Court Act 1970 (NSW), nor s73 of the Act, can authorise interest from the date of injury in this case. It is only from the date on which s79 of the Act came into force that the plaintiff can be said to have been kept out of damages to which he was entitled." That passage makes it quite clear to me that the majority's view was that the critical date was the date on which the right to damages and interest was reinstated. Similarly, the majority Judgment leads to the conclusion that interest should be allowed on the whole sum of $81,000. I appreciate that there is no lengthy analysis by the majority in favour of the alternative point of view, and it is for that reason that the respondent submitted that it was open to this Court to reach the contrary conclusion. I do not think it is. The point at issue was argued before the High Court and the majority, having made the statement to which I referred, that interest is the price to be paid for keeping a plaintiff out of his money, made an award of interest calculated on the total amount. In my opinion we are bound to do likewise. I would add that in one respect the argument in this case is stronger than it was in Andgelic. The amount payable under the Workers Compensation Act for non-economic loss is the figure appearing in the statute at the date of injury. Under the Motor Accidents Act the figure is the one appearing at the date of trial, with adjustments from the earlier figures, to take account of inflation. Under the Workers Compensation Act the loss is fixed at the date of injury, although not then assessed, and it is that loss which has been kept from the appellant. During the debate in court, each of the possible answers was discussed, and at the end of the argument the parties were asked to bring in figures representing possible results. The parties have, thankfully, agreed on the figures which should be substituted for the figures previously allowed in the event that the result was as I have announced. Those figures reveal that there should be allowed an additional $34,080.75 for interest, leading to a Judgment figure of $252,652.35. In the circumstances I propose the following orders: (1) The appeal be allowed; (2) The Judgment of Justice Newman be set aside and in lieu thereof there be entered Judgment for the appellant in the sum of $252,652.35; and (3) The respondent must pay the appellant's costs of the appeal and the trial and is to have a Suitors Fund Act certificate, if otherwise qualified, in respect of the costs of the appeal. URJ HOLLAND v MULLINS NEWSAGENCY PTY LTD (Cole JA) 3 To make it perfectly clear, the substitute Judgment should take effect from the date of the original Judgment which was 28 July 1994. Handley JA I agree. 5 Cole JA I also agree. (1) The appeal be allowed; (2) The Judgment of Justice Newman be set aside and in lieu thereof there be entered Judgment for the appellant in the sum of $252,652.35; and 10 (3) The respondent must pay the appellant's costs of the appeal and the trial and is to have a Suitors Fund Act certificate, if otherwise qualified, in respect of the costs of the appeal. To make it perfectly clear, the substitute Judgment should take effect from the date of the original Judgment which was 28 July 1994. Counsel for the appellant: Mr PR Caplin QC and JS Drummond Solicitors for the appellant: Walsh and Blair 20 Counsel for the respondent: Mr CRR Hoeben SC Solicitors for the respondent: Pieterse and Pieterse