New South Wales Court of Appeal CITATION : Emmett v Hornsby Shire Council [2002] NSWCA 203 FILE NUMBER(S) : CA 40792/00 HEARING DATE(S) : 26 June 2002 JUDGMENT DATE : 26 June 2002 Margaret Lorraine Emmett (Appellant) PARTIES : Hornsby Shire Council (1st Respondent) Patchmaster Roadworks Pty Limited (2nd Respondent) JUDGMENT OF : Beazley JA at 1; Santow JA at 15 LOWER COURT JURISDICTION : District Court LOWER COURT 10329/97 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER : COUNSEL : A T McInnes QC (Appellant) G Curtin (Respondents) SOLICITORS : G H Healey & Co (Appellants) Phillips Fox (Respondents) CATCHWORDS : Damages - Griffiths v Kerkemeyer - Past Economic Loss - General Damages - Failure to Award Interest LEGISLATION CITED : Suitors Fund Act 1951 (NSW) CASES CITED: Griffiths v Kerkemeyer (1997) 139 CLR 161 DECISION : Appeal allowed IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40792/00 DC 10329/97 BEAZLEY JA SANTOW JA Wednesday, 26 June 2002 EMMETT v HORNSBY DISTRICT COUNCIL JUDGMENT 1 BEAZLEY JA: This is an appeal in respect of a component of the award of damages made by Puckeridge DCJ, in a claim brought by Mrs Emmett against the Hornsby Shire Council, arising out of injuries which she sustained in a workplace injury on 9 January 1995. The challenge, which is now made on the appeal, has been limited to an attack on his Honour's award for the Griffiths v Kerkemeyer (1997) 139 CLR 161 component of damages, the amount of the award of past economic loss and the failure to award interest on past economic loss and on any portion of general damages. 2 Before proceeding I should indicate that the Court considered at the commencement of the hearing today that this was a matter in which leave to appeal was required. Leave has been applied for orally and is subject to a direction that a summons for leave to appeal be filed within 24 hours in the registry. The court proposes to grant leave and has heard the appeal instanter. 3 Having regard to the challenges which have been made, we do not consider it necessary to give detailed reasons. We have been taken to significant portions of the evidence during the course of submissions and we rely upon that evidence and his Honour's reasons in coming to our conclusion. 4 His Honour rejected the appellant's claim for household assistance under the Griffiths v Kerkemeyer principle, other than for two relatively short periods, one immediately after the accident and one immediately after the operation on the appellant's shoulder. 5 His Honour's rejection of the claim had a twofold basis. The first was on a credit basis, namely, that he considered that the appellant exaggerated her disabilities and her need for such assistance. The second was his acceptance of Dr Morris, who in essence was of the opinion that the appellant could do her household work. I consider that there is no basis upon which this Court can interfere with his Honour's finding. Accordingly, I would reject that aspect of the appeal. 6 The second challenge is in relation to his Honour's award for past economic loss. The appellant was off work for a period of time immediately after the accident. She then returned to work gradually part-time and on light duties until she eventually resumed her full duties, including undertaking a certain amount of overtime, as she had been entitled to before the accident. There was again, of course, a period of time of being off work immediately after the operation. If one looks at her actual wage loss during that period, seeing that she lost wages of $23,464, for reasons which are totally unexplained in his Honour's judgment, he allowed for some $21,000 by way of past wage loss. 7 During the course of the appellant's evidence, there had been no challenge to the effect that she had failed to work or return to work when she should have, or failed to undertake a greater range of duties or a greater number of hours than she should have and could have. In those circumstances I can see no basis upon which the appellant's past economic loss should have been reduced and, as I have pointed out, his Honour gave no reasons for so doing. 8 The failure to give reasons is usually a new trial point. That is not a point taken in this appeal, but it was so obviously one that was available that the Court might have had been minded to allow an amendment of the grounds of appeal if such an application was made. That matter having been raised, Mr Curtin, most properly as counsel for the respondent, indicated that he would concede that there were no reasons given and that he would not oppose the Court interfering with the award to accord with the evidence. Accordingly, it is my opinion that the appellant should have been awarded damages for past economic loss in the amount of $23,464 and the award of damages should be increased to reflect that. 9 His Honour failed to award interest on past economic loss. Mr Curtin, again bravely but not inappropriately, argued that interest must have been included in the award for past economic loss. I cannot see that it was. There is simply no mention of it in the judgment. His Honour merely stated there would be an award of $21,000 by way of past wage loss. 10 In my opinion interest should have been awarded. His Honour failed to do so. The calculation of interest on the award of $23,464 at 10% for 2.83 years results in a calculation of $6,640 and, subject to that mathematics being correct, I would award that amount. 11 The final challenge which has been made to the judgment is in respect of his Honour's failure to award interest on general damages. Interest is usually awarded on that portion of general damages which is attributed to the past. His Honour, again for reasons which are unexplained, made a global award for general damages for the past and future in the sum of $75,000 without apportioning any part of that for the past. The result is that his Honour either did not consider that interest on the past should be awarded or entirely overlooked it. In either respect it is an error. 12 Mr Curtin has suggested that if interest is to be allowed on general damages and is not, as he also argued, included in the actual amount awarded, then the total award should simply be halved as reflecting an award of half the damages for the past and half for the future. Again, I cannot see anything in his Honour's language to indicate that his Honour included interest in his calculation of general damages. Counsel for the appellant agreed that it was an acceptable course to attribute half the damages to the past and half to the future. 13 Using the usual percentages and adopting the usual approach to the award of interest on general damages, interest on $37,500 results in an amount of $4,245 and I would award that sum. 14 The result, therefore, of the appeal is that it should be allowed in part, and damages should be increased in the amounts specified. 15 SANTOW JA: I agree. 16 BEAZLEY JA: The respondent has made an application that notwithstanding the partial success of the appellant on the appeal, that the usual costs order ought not to follow and that either the appellant should pay the respondent's costs or, alternatively, that there would be no order for the costs of the appeal. 17 The essential basis for the application was that on 4 December 2001 an offer was made to settle the matter in the sum of $10,300, and that should that amount be accepted, the respondent would pay its own costs of the appeal and would also waive a number of costs orders which had been made during the course of this matter coming on for the hearing of the appeal. Some of those costs orders, it would appear, arose because of the failure of the appellant to comply with court rules relating to the filing of documentation and certain directions made by the registrar. One of the examples that was given was the failure to file the Red Appeal Book in accordance with directions. The appellant explained that that failure arose from the failure to get a copy of the trial judge's judgment. Although there is no direct evidence of that, the explanation was not challenged. It is known that there is extreme difficulty in obtaining transcripts, especially from the District Court. 18 I think, in the circumstances, given that the appellant is successful in an amount greater than the amount of the offer, given the explanation, at least in part, that has been given for failure to comply with directions, the usual order for costs should be made. 19 Accordingly, the final orders are as follows: (i) Appeal allowed in part; (ii) Verdict and judgment of the trial judge set aside; (iii) In lieu thereof there is entered a verdict and judgment for the appellant in the sum $153,852.35; (iv) The respondent is to pay the appellant's costs of the appeal and is to have a certificate under the Suitors Fund Act 1951 (NSW), if so entitled. 20 We note that in making this order we have not interfered with any of the interlocutory costs orders which have been made. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.