New South Wales Supreme Court CITATION : SAMARDZIC v STATE OF NEW SOUTH WALES [2004] NSWSC 1082 HEARING DATE(S) : 27 August 2004 JUDGMENT DATE : 16 November 2004 JUDGMENT OF : Hulme J at 1 DECISION : Pursuant to Part 20 rule 10 vary the amount of the judgment herein by substituting for the sum of $568,953 the sum of $627,094.; Stand over the proceedings to November 2004 at 9.30 before me for mention. CATCHWORDS : Application under Slip Rule PARTIES : Zlatko Joseph Samardzic State of New South Wales FILE NUMBER(S) : SC 20062/98 COUNSEL : Plaintiff: CA Evatt Defendant: P See SOLICITORS : Plaintiff: Teakle Ormsby George Defendant: IV Knight Crown Solicitor - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No: 20062/98 HULME J 16 November 2004 Zlatko Joseph SAMARDZIC v STATE OF NEW SOUTH WALES JUDGMENT 1 HULME J: These reasons arise out of an application under the Slip Rule to alter the amount for which judgment was entered in these proceedings. 2 I delivered Reasons for Judgment on 4 February last dealing with the issues in significant dispute, leaving the parties, as I had foreshadowed during the course of submissions, to carry out actuarial and mathematical calculations consequent thereon and to raise any matters either of them thought I had missed. On 10 February a Schedule of Damages agreed between the parties was handed up and judgment entered accordingly. 3 On 17 March 2004 the solicitors for the Plaintiff wrote to the solicitors for the Defendant asserting that there were significant errors in the agreed schedule, particularising the suggested errors and enclosing a further schedule reflecting them. 4 On 13 May 2004 the solicitors for the Plaintiff wrote again, advising the matter had been fixed for hearing on 27 August for orders under the Slip Rule to reflect correction of the errors adverted to in the letter of 17 March. The letter of 13 May went on to advise that a further similar application would be made based on an asserted error in one of my findings, viz. "I am not persuaded that bookkeepers earn any less than police officers be they constable or sergeant." 5 In the letter also, assertions were made as to the earnings of a "Sergeant First Class (now a Senior Sergeant Level 1)", confirmation was sought that this assertion was correct, and claims were made as to the consequences of the suggested error in my findings. There was enclosed a Notice of Appeal said to have been filed. The Notice asserted, inter alia, that the damages were inadequate and the error in findings to which I have referred. 6 On 16 July 2004 the Plaintiff's solicitors wrote indicating that they regarded the claimed error concerning the earnings of bookkeepers and police officers as not one appropriate for correction under the Slip Rule and did not intend to pursue it. They sought the Defendant's consent to the adjustments contemplated in the letter of 17 March. 7 On 30 July the solicitors for the Defendant wrote saying they were not instructed to make any concessions in respect of the assertions contained in the letter of 17 March, that they rejected any suggestion that the Plaintiff's losses should be calculated by reference to the wages of a "Senior Sergeant Level 1" and adverted to references at the trial suggestive of the appropriate wage being that of a "Sergeant Level 1". 8 On 9 August 2004 the Defendant's solicitors wrote again, the letter being headed "Without Prejudice except as to Costs". It enclosed a revised schedule of damages which, it was said, made 2 concessions. One was that future economic loss was now calculated on the basis of the salary of a Sergeant Level 1 and the second was that the past Griffiths v Kerkemeyer claim was quantified on the basis of one period of 2 years and a second period of 640 weeks. 9 On 11 August 2004 the Plaintiff's solicitors wrote querying the figure advanced by the Defendant as the earnings of a Sergeant Level 1 and suggesting they should have been $29.20 a week higher than set out in the schedule attached to the Defendant's solicitor's letter of 9 August 2004. 10 On 13 August 2004 the Defendant's solicitor replied, adhering to the stance it had taken as to the earnings of Sergeant Level 1, enclosing a copy of the relevant award and asserting that the figures for which it contended were those tendered by the Plaintiff at the trial. (That is correct. They were contained in Exhibit R although subject to a loading referred to in the letter of 13 August and in the Defendant's written submissions at trial – submissions which the Plaintiff's counsel at T255 had accepted.) 11 On 23 August 2004 the Defendant's solicitor wrote saying that the Defendant's counsel had been contacted by the Plaintiff's Counsel "to the effect that there are now no matters in dispute between the parties other than the Plaintiff now wishes to claim interest on past Griffiths v Kerkemeyer damages, notwithstanding that this matter was not raised at the hearing" and asking that the Plaintiff serve their application under the Slip Rule as well as any documentation upon which reliance was intended to be placed. 12 It appears that on 24 August the Plaintiff's counsel then sent to the counsel for the Defendant handwritten particulars of the interest claimed together with photocopies of relevant pages of text books and other documents proposed to be relied upon. Included in these was what purports to be a table of the "Cost of Care" under Section 72 of the Motor Accidents Act. 13 In written submissions with which I have been provided, it is said that the claim for interest on past Griffiths v Kerkemeyer damages was overlooked by the Plaintiff's advisors, and submitted that the right to interest is beyond doubt and the amount of a judgment can be corrected to overcome the results of such inadvertence. Reference was made to L Shaddock & Associates v Parramatta City Council (No. 2) (1983) 151 CLR 590. 14 For the Defendant it is contended that an award of interest should be approached in a broad and practical way and not allowed to assume disproportionate importance. Cullen v Trappell (1980) 146 CLR 1 at 21-22 is cited in support. In the submissions it was also contended:- (i) that there was no evidence in the proceedings as to the market rates for care during the period 1987 to 2003, (ii) that the "Cost of Care" table showed rates varying between $9.63 per hour in the February 1987 quarter and $19.24 in the May 2003 quarter, (iii) that in the original Schedule of Damages the Griffiths v Kerkemeyer claim had been valued at $20 per hour, and (iv) that accordingly the Plaintiff had been properly compensated by the calculations agreed between the parties. 15 The Defendant claimed that there has been no clerical error or accidental slip or omission by the Court or by the legal advisers of the Plaintiff. It was further claimed that considerable time and costs have been incurred since judgment was entered and the Plaintiff should pay the Defendant's costs of and incidental to the application under the Slip Rule including the costs incidental to the amendments to the Schedule of Damages. 16 I do not regard it as necessary to detail all of the changes in the Schedule of Damages suggested by the parties but to enable somewhat greater appreciation of what has occurred some specification of them should be made. The following table provides an indication of them. 10/2/04 Schedule 17/3/04 Schedule 9/8/04 Schedule Past economic loss $103,296 $107,159 $105,543.66 (507 weeks @ 30% of $679) (463 weeks @ 30% of $679 + 44 weeks @ 30% of $973.84) (463 weeks @ 30% of $679 + 44 weeks @ 30% of $850.80) Interest on past economic loss (all at 7%) $70,500 $73,136 $72,033 Future economic loss $171,128 $238,053 $207,993 (calculation based on $700 per week) (calculation based on $973.84 per week) (calculation based on $850.80 per week) Past G v K $14,560 $14,560 $14,560 First 2 years (at $20/hr) $16,040 (7 ¾ years) $30,160 (14 ½ years) $29,760 (640 weeks) Later years (at $20/hr)` Total $568,953 $660,275 $627,094 17 The claim for interest referred to above in [11] et seq. is based on the principal sums of $14,560 and $29,760 and, according to the calculations of counsel for the Plaintiff amounts to $15,142 in respect of the Griffiths v Kerkemeyer claim for the first 2 years and $41,182 in respect of the claim for the later period. There has been no challenge to these calculations. 18 The Defendant did not explain the grounds upon which it claimed that there had not been an accidental slip or omission by the legal advisers of the Plaintiff. Although the agreed $20 rate may be high, I would not infer from it that it reflected an interest claim. Counsel for the Plaintiff has asserted that interest on past Griffiths v Kerkemeyer damages was overlooked by the Plaintiff's advisors and accordingly I accept that it was. The error is correctable, and given its cause, it should in my view be corrected provided that can occur without injustice. As a general proposition a Plaintiff should not suffer due to an error of this nature on the part of his legal advisers. In my view the error can be corrected without injustice. 19 However, the avoidance of injustice requires that any correction be on terms. The material before me satisfied me that the $20 rate was, since it was adopted for the whole of the period since 1987, extremely high. The absence of a claim for interest may well have been a cause of the Defendant accepting it. It is by no means unknown in damages assessment for current rates to be adopted rather than older rates and interest thereon. The Court has a discretion whether to correct the error and in these circumstances it seems to me that the Court should impose terms on the Plaintiff as a condition of making the correction sought. Although there has been no debate on the topic of terms, and accordingly, I make no final determination at this stage, those which I am inclined to think are appropriate are that the Plaintiff consents:- (i) To the setting aside of the judgment herein, (ii) To the setting aside of so much of the agreement between the parties as to the amount of damages as deals with the hourly rate for the Griffiths v Kerkemeyer claim, (iii) To an order that there be separate determination of so much of the Griffiths v Kerkemeyer claim as relates to the hourly rate. 20 It may be that there should be an order in the Defendant's favour for the costs of the determination of the appropriate hourly rate although that is a topic best left for the moment. Any unreasonableness on either side in the course of litigation of that issue can then be taken into account as can questions of success or loss on that issue. 21 The parties should have the opportunity of reflecting on what I propose. It may be that other conditions may also need to be met, including some by the Defendant. If judgment is to be set aside, then directions and arrangements will need to be made with a view to having the matter determined this year. 22 So far as the costs to this stage are concerned, I am satisfied that there should be some order in the Defendant's favour. The correspondence to which I have referred indicates that undoubtedly costs have been incurred that should not have been and that, at least in part, they have arisen as a result of the Plaintiff's side of the record not dealing with matters efficiently. On the other hand, I do not regard the Defendant's side as without blame. The correct rates of pay and that the Griffiths v Kerkemeyer claim covered a period of 16 or so years and not merely about 9 years should have been known or obvious to the Defendant's advisers also. It seems to me appropriate that the Defendant receive 50% of the costs of and incidental to this application including the costs incidental to the amendments of the calculation of damages. 23 My inclination is that the order should probably be against one or other or both of the Plaintiff's legal advisers. At this stage it seems to me probable that all of the matters to which I have referred are due at least in part to error or other conduct on their part and not to any fault on the part of the Plaintiff. However, this topic also has not been the subject of debate and I will not pursue it further at this stage. The plaintiff's legal advisers should regard these Reasons as notice to them under s76C, and Part 54A rules 43 and 43A. 24 There is agreement that the amount of the judgment should be varied to the extent indicated in the Defendant's schedule of 9 August and accordingly I will make an order to give effect to that agreement, adjourning the matter otherwise for mention next week. My formal orders are:- 1. Pursuant to Part 20 rule 10 vary the amount of the judgment herein by substituting for the sum of $568,953 the sum of $627,094. 2. Stand over the proceedings to November 2004 at 9.30 before me for mention. ********** Last Modified: 12/17/2004 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.