Brittain v Commonwealth of Australia [2005] NSWSC 1330

New South Wales Supreme Court

CITATION : Brittain v Commonwealth of Australia [2005] NSWSC 1330

HEARING DATE(S) : 15/12/05

JUDGMENT DATE : 16 December 2005

JUDGMENT OF : Bell J at 1

DECISION : (1) Direct entry of judgment for the plaintiff in the amount of $206,122.; (2) The defendant is to pay the plaintiff's costs as agreed or assessed.

CATCHWORDS : Costs

Supreme Court Act 1970 LEGISLATION CITED : Uniform Civil Procedure Rules 2005

Aussems v Commonwealth of Australia (2005) NSWSC 217 CASES CITED : McLean v Commonwealth of Australia, 22 August 1996 Simonius Vischer v Holt [1979] 2 NSWLR 322

Anthony Winston Brittain (Plaintiff) PARTIES : Commonwealth of Australia (Defendant)

FILE NUMBER(S) : SC 21248/95

G Melick SC / I Butcher (Plaintiff) COUNSEL : R Williams QC / I McLachlan (Defendant)

James Taylor & Co (Plaintiff) SOLICITORS : Australian Government Solicitor (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Friday 16 December 2005

20248/95 Anthony Winston Brittain v Commonwealth of Australia

JUDGMENT - Costs 1 BELL J: I gave judgment in this proceeding on 6 December 2005: Brittain v Commonwealth of Australia [2005] NSWSC 641. There was a verdict for the plaintiff and damages were assessed in the amount of $176,676 (including interest on past general damages). I invited the parties to bring in a minute of judgment, including interest on the component of the award referable to the lost chance of obtaining Defence Force Retirement Death Benefit (DFRDB) entitlements. I gave the parties liberty to re-list the matter for submissions on costs and in the event there was any issue to be resolved with respect to interest. 2 The proceedings were re-listed on 15 December 2005. On that occasion I was informed that the parties were agreed that interest on the award for the lost chance of obtaining DFRDB entitlements should be assessed at $37,556. 3 My attention was drawn to an error in the calculation of the interest on general damages, which I had assessed in an amount of $40,736. This figure represented interest calculated on 75 percent of the general damages in the period from the date of the collision to the date of judgment. It was conceded by the plaintiff that it was an error to have calculated interest from the date of the collision since there was no power to award interest prior to 1 July 1972, being the date on which s 94 of the Supreme Court Act 1970 (NSW) came into effect. The parties were agreed that it was open to me to re-determine the interest on general damages pursuant to the slip rule. 4 Mr Williams QC, who with Mr McLachlan appeared on behalf of the defendant, submitted that a substantial portion of the award of general damages was referable to the early years, following the collision. In his submission I should approach the matter by apportioning the amount of general damages that was referable to the period between the collision on 10 February 1964 and 1 July 1972. Interest should be awarded on the balance of the sum from 1 July 1972. 5 Mr Melick SC, who appeared on the plaintiff's behalf, submitted that in the event I approached the matter in the way proposed by the defendant, it would be appropriate to recognise that a further substantial proportion of the damages was referable to the early part of the period of 33 years that followed. In his submission there had been a lessening of loss in recent years. This made it inappropriate to calculate interest (taking into account that it related to a continuing loss) by simply halving the rate over the period. 6 After judgment was reserved Mr Melick, with the consent of the defendant, supplied me with a short written submission contending that interest should be awarded on the whole of the component representing past general damages from 1 July 1972 and that it should be calculated at two per cent. After I received Mr Melick's note, my attention was drawn to a facsimile addressed to my Associate, attaching a copy of a letter sent by James Taylor & Co, the plaintiff's solicitors, to Mr Melick. Mr Taylor's covering letter addressed to my Associate requested that I take into account calculations contained in the letter that he had sent to Mr Melick. The assumptions in the calculations were inconsistent with Mr Melick's written submission. There is no general right to make further submissions after a hearing when judgment is reserved. For the solicitors for a party to furnish submissions after judgment is reserved without the consent of their opponent is irregular. I have not taken into account the contents of Mr Taylor's letter to senior counsel. I have approached the matter taking into account Mr Melick's submissions, including his written note, in light of the defendant's consent to that course. 7 My attention was drawn to two decisions in claims arising out of the Melbourne/Voyager collision in which consideration has been given to the award of interest on general damages: McLean v Commonwealth of Australia, 22 August 1996, Sperling J and Aussems v Commonwealth of Australia (2005) NSWSC 217, Dunford J. In McLean Sperling J upheld the defendant's submission with respect to the pre 1 July 1972 component of the award, citing the judgment of Moffitt P in Simonius Vischer v Holt [1979] 2 NSWLR 322 at 337. In Aussems Dunford J did not adopt this approach. His Honour confined the award of interest on general damages to the period from 1 July 1972 without apportioning any part of it to the period between the collision and 1 July 1972. 8 The discretion with respect to the award of interest is a broad one. I do not approach the matter in the mathematical way that was proposed by both parties in the course of oral submissions. The assessment of general damages reflected in no small measure the impairment in the plaintiff's capacity to enjoy a fulfilling family life, not only with his wife, but also with his three children. It is difficult to meaningfully apportion the diminution in the quality of the plaintiff's enjoyment of family life between 10 February 1964 and 30 June 1972, save to observe that I do not accept that the substantial component of the award is referable to that period. 9 The purpose of the award of interest is to compensate the plaintiff for not having had the benefit of the damages to which he was entitled from the date the damage was incurred. It seems to me that the proper exercise of discretion in this case favours an award of interest on the whole of the sum assessed as referable to the past from 1 July 1972. This produces a figure of $32,626. 10 The defendant submitted that I should structure the costs order to reflect that a substantial amount of time at the trial was taken up with the economic loss claim on which the plaintiff failed. It was submitted that a deal of the plaintiff's evidence, both in chief and in cross-examination, focussed on the economic loss claim and that considerable time was taken in the course of submissions on an analysis of the actuarial evidence. 11 The plaintiff's evidence concerning his employment in the years following his discharge from the Navy and the amount of his income was inextricably bound up with issues bearing on the extent and nature of his symptoms of post traumatic stress disorder and his credit. All of the lay witnesses' evidence went to issues that included the extent of the plaintiff's symptoms. Much of the analysis of the actuarial evidence was concerned with the approach to be taken to the calculation of the lost chance of obtaining DFRDB entitlements, an issue on which the plaintiff succeeded. 12 I am not disposed to view this proceeding as one in which there should be a departure from the general rule expressed in Pt 42.1 of the Uniform Civil Procedure Rules 2005, that costs should follow the event. 13 The costs of the plaintiff's successful application to extend the time in which to bring his claim under the Limitation Act 1969 were reserved. Neither of the parties was in a position to deal with this issue on 15 December 2005. In this judgment I deal with the costs of the proceedings, save for the costs that were reserved with respect to the extension of time application. 14 ORDERS (1) Direct entry of judgment for the plaintiff in the amount of $206,122. (2) The defendant is to pay the plaintiff's costs as agreed or assessed. **********