Casey City Council v Kohn [2006] VSCA 82

4 On 16 October 2002 the respondent, Helen Kohn, brought a proceeding

against the appellant, Casey City Council, seeking damages for injuries that she sustained on 15 August 1996 while in its employ. The respondent alleged that the appellant had breached its common law duty of care towards her and, or alternatively, its statutory duty under the Occupational Health and Safety Act 1985. The appellant denied breach and contended that, if it was liable for the respondent's injuries, her own negligence had contributed to them. On 30 September 2004, the jury found the appellant liable for the respondent's injuries and awarded her $100,000 for pain and suffering and $235,808 for pecuniary loss, but reduced the damages by 44.167 per cent for the contributory negligence of the respondent. On 15 November 2004, the trial judge ruled that the respondent was entitled to $7,536 by way of damages in the nature of interest for past loss of earnings pursuant to s.135A(16) of the Accident Compensation Act 1985. Thus, judgment was entered for the respondent on 15 November 2004 in the sum of $129,712.80, together with damages in the nature of interest of $7,536, making a total of $137,248.80. Her Honour also made consequential orders including an order for costs in favour of the respondent.

5 The appellant has appealed against her Honour's determination of the interest component of the judgment and the respondent has cross appealed in relation to the finding of contributory negligence. I note for completeness that the appellant's notice of appeal also claims that her Honour erred in making the costs order but, in the event, no submissions were addressed to us in respect of this claim and, therefore, there is no need to consider it.

Background circumstances

6 Before dealing with the parties' respective contentions, I shall set out the relevant circumstances giving rise to the matters before us. The respondent was born in Queensland on 22 March 1952 and, accordingly, was aged 44 and 52 respectively at the time of her injury and trial. At the age of three, she was placed in an orphanage in Queensland where she suffered sexual and other physical abuse from members of the staff. Notwithstanding this experience the respondent married and had a normal family life. She qualified as a physical education teacher and later turned her attention to teaching gymnastics. The respondent became a highly successful, well-respected and credentialed gymnastics coach, with a special interest in artistic gymnastics and, in 2000, she was awarded the Australia Sports Medal for coaching in that sport. The respondent ceased full-time work following the birth of her first child and did not return to paid employment until all her children had grown up. Although the respondent did not engage in paid work while she was bringing up her family, she retained her interest in gymnastics and, over the years, became involved in associations that were concerned with coaching and administering the sport. Thus, she took a leading role in establishing gymnastics clubs in the communities in which she was living at the time in Queensland and worked as a coach, judge and lecturer, essentially in a voluntary capacity. She trained gymnasts to an elite level. In February 1988 the respondent and her family moved to Melbourne and, in October of 1994, she commenced employment with the appellant as head coach/administrator of gymnastics at its Endeavour Hills Leisure Centre. She worked 30 hours per week, 20 hours coaching and 10 hours in administration.

7 On 15 August 1996, the respondent injured her back while assisting another gymnastics instructor to move the top part of a wooden vaulting box from a place near the centre of the gymnasium to a makeshift storage area located underneath a ballet barre that was located close to, and was parallel with, the wall of the gymnasium - it sat on a right angle bracket that protruded a short distance from the wall of the gymnasium. It seems that it was common practice to store, temporarily, around the perimeter of the gymnasium, equipment that had to be cleared away in order to make room for other activities in the gymnasium. It was in those circumstances that one of the respondent's colleagues who, as I have said, was also a gymnastics coach, asked her to help with clearing the area and, to that end, move the vaulting box. While carrying her end of it and walking backwards in the direction of the wall, the respondent looked over her left shoulder to check the difference in the floor levels that occurred not far from the wall. She said in her evidence that she was well acquainted with that part of the gymnasium and the location of the ballet barre. After placing the equipment under the barre the respondent straightened up from a stooped position and struck the right side of her back on the metal bracket that supported the ballet barre. This resulted in her sustaining an injury to two lower back discs, causing her to suffer chronic lower back pain. It was common ground below that the respondent had not suffered back pain before the accident and that the injury had resulted in her being at least partially incapacitated for work shortly after the event. She returned to work some weeks later, but was not able to resume her activity as a gymnastics coach and was confined to modified duties that did not involve lifting or bending. During this period, she worked only four hours each day. In about November 1996, the respondent's position with the appellant was terminated due to factors unrelated to her injury[4] and she has not worked since.

Parties' respective positions at trial

8 It was the respondent's case at trial that the accident resulted not only in her suffering chronic lower back pain that prevented her from pursuing her occupation as a gymnastics teacher, but also precipitated the onset of various psychiatric disorders, including post traumatic stress disorder and depression, and triggered childhood memories of having been the victim of sexual and physical abuse at the Queensland orphanage. I mention for completeness that, after the accident, the respondent gave evidence at an enquiry into allegations of abuse at the orphanage and provided the police with a statement setting out her own circumstances in that regard. She also received compensation.

9 As her Honour explained in her determination, to which I will refer shortly, the appellant did not dispute that the respondent may have suffered depression and anxiety as a consequence of the back injury, but claimed that the accident did not trigger her post traumatic stress disorder. Its case was that the disorder was triggered by causes other than her physical injury, most likely a television show that she watched which, the appellant claimed, prompted her recollection of abuse at the orphanage. In addition to this, it was said for the appellant, the respondent was made more vulnerable to psychological problems because of the stress that she experienced at the workplace. In the event, the respondent suffered a major nervous breakdown in about May 1998 and, in August 1998, she was admitted to the Melbourne Clinic. Thus, the appellant's case before the jury was that, since some time in 1998, any impairment affecting the respondent's earnings was wholly or substantially unrelated to any injury for which it had legal responsibility but arose out of her psychiatric problems. Consequently, a significant issue at the trial was whether the back injury was a cause of the respondent's psychiatric state and, thus, her loss. The corollary to this issue concerned argument as to the extent to which her loss was attributable to her psychiatric condition rather than her back injury.

10 The hearing before the judge and jury occupied 15 sitting days. During the course of it, counsel for the respondent submitted to the trial judge that there was no evidence upon which the jury, acting reasonably, might properly conclude that the respondent had been guilty of contributory negligence and applied to have that issue withdrawn from them. Her Honour rejected the application. By way of cross appeal, the respondent contends, inter alia, that her Honour erred in refusing to accede to that application. There are other complaints relating to the issue of contributory negligence that are raised in the cross appeal to which I will refer later.

Claim for interest payment

11 Following the jury's verdict, the respondent claimed that she was also entitled to damages by way of interest pursuant to s.60 of the Supreme Court Act 1986, albeit only by reference to her past pecuniary loss as prescribed by s.135A(16) of the Accident Compensation Act 1985.[5] The appellant did not deny the respondent's entitlement to such interest, but because the parties could not agree on the amount, they sought a ruling on the matter from the trial judge. This involved yet another hearing at considerable cost to the parties and the public purse. It is convenient to mention in this context that I agree with the observations of Habersberger, A.J.A. as to the more straightforward course that might be adopted, in appropriate cases, to determine the amount of past economic loss. Be that as it may, on 15 November 2004, her Honour determined that $160,000 of the $235,808 awarded by the jury by way of damages for pecuniary loss was referrable to the respondent's past economic loss and, on that basis, determined that the sum of $7,536 was payable to the respondent by way of interest, and made orders accordingly.

Appellant's claim on appeal

12 The appellant submitted that her Honour made two principal errors in determining that the amount to which the respondent was entitled by way of interest was $7,536. First, it was said, her Honour erred in concluding that the amount that the jury would have fixed for the respondent's past economic loss was $160,000. It was argued that the amount of such loss was materially less than $160,000 and, therefore, the amount of interest to which the respondent was entitled was correspondingly smaller. Secondly, and in any event, it was put that, in calculating the interest, her Honour failed to take into account that approximately one quarter of the loss[6] occurred progressively so that the awarded interest rate should have been applied only to one half of that (progressive) loss, whereas her Honour calculated the interest on the whole amount.

Interest determination

13 I turn first to deal with the appellant's contention that her Honour erred in concluding that the jury would have fixed the respondent's past pecuniary loss at $160,000. Her Honour described her task in that regard by reference to what Phillips, J.A. relevantly said in McLennan v. Radford,[7] namely, as assessing by inference from the evidence, the jury's verdict and counsel's submissions the minimum amount, out of the total of the respondent's past loss, that the jury must be taken to have fixed for the respondent's past loss. It was not contended by the appellant that her Honour erred in her summary of what she was required to do in this respect. In that context, her Honour looked first at the respondent's health prior to the accident and then at her condition following the injury. As regards the latter, her Honour carefully reviewed the medical evidence, the preponderance of which, her Honour said, established that the accident resulted in the respondent suffering chronic low back pain that was discal in origin and post traumatic psychiatric disorder. The judge noted that the majority of doctors considered that she was unfit for pre-accident employment as a gymnastics coach and had limited work capacity in the future.

14 Her Honour concluded that the jury probably accepted that, as a consequence of her injury, the respondent suffered from chronic low back pain and secondary anxiety and depression and a triggering of her psychiatric disorder. Her Honour also noted, correctly, as was recognised by the appellant, that the jury probably accepted the respondent's submissions as to "past" economic loss more than they did those of the appellant. It was in this context that her Honour said that the verdict suggested that the jury "used the figures put by [the respondent's] counsel as their guide". The importance of this observation lay in the fact that the respondent's counsel had put to the jury that they should assess her future economic loss by reference to figures that he put to them that were based on whether she worked until 65, 60 or 55 years, respectively. This submission implicitly accepted that the jury could properly conclude, on the evidence, that the respondent would have ceased work at the age of 55 years. As to the future, her Honour said, the jury would have made only a small allowance having regard to "[the respondent's] age, her pre-existing vulnerabilities, her known work history and discounting for the vicissitudes of life greater than 15%". The judge went on to say that it was "likely that [the jury] would have found that she would have only worked for a short period of time, say the age of fifty-five years on a part-time basis". This analysis, if correct, would mean that the jury would have concluded that a substantial part of the award for pecuniary loss - $235,808 - was made up of past economic loss. Be that as it may, these considerations led her Honour to conclude that the figure upon which the calculation of interest should be based was $160,000 (that being the amount that the judge considered was the minimum figure that the jury would have awarded the respondent for past economic loss). To arrive at the capital sum on which interest was to be calculated, her Honour deducted the weekly payments received by the respondent - $103,400 - and reduced the remaining sum to reflect the award of contributory negligence, thereby producing a base figure of $31,553.34 to which her Honour then applied the average penalty interest rate between 10 October 2002 (the date of issue of the writ) and judgment (15 November 2004), resulting in a figure that, rounded off, came to $7,536.

15 As I have said, s.135A(16) restricted the respondent's entitlement to damages by way of interest to an amount that was referable to so much of the award as was made up of past economic loss. Since that amount was not articulated by the jury, her Honour was required to infer from the circumstances that I have mentioned[8] what was the minimum amount that was likely to have been awarded by them for past losses. And, as seems to have been accepted by Phillips, J.A. in McLennan,[9] the result had to reflect an appropriate degree of proportionality between the past and future loss components of the damages award. Thus, the task involved elements of fact, degree and value judgment.

16 The appellant argued that, rather than determining, as her Honour should have done, the minimum amount that the jury would have awarded the respondent by way of past economic loss, the judge in fact awarded the maximum amount for such loss. More particularly, it was claimed that the judge erred in concluding that the jury was likely to have found that the respondent would have worked only for a short period, "say to the age to the age of fifty-five years on a part-time basis". This conclusion, it was said, was founded on four "false bases", namely, as has been noted, the respondent's age, her pre-existing vulnerabilities, her known work history and a discount for vicissitudes of life greater than 15 per cent. Thus, it was said, neither the age of the respondent nor her working history provided any basis for saying that the jury would have concluded that she would have ceased work at 55 years. Similarly, it was said, there was no basis in the evidence for concluding that the jury would have thought that, at some stage in the future, before the respondent turned 55, her pre-existing condition would prevent her from working. The appellant pointed in particular to the respondent's evidence that she would have worked well beyond the age of 55. It was also said that the discount for vicissitudes of life was without foundation. It was further contended for the appellant that, by allowing $30,000 for past superannuation and $7,000 for the Fox v. Wood component, her Honour must have quantified the respondent's future loss of earnings at approximately $38,000, a sum that was plainly too low. Thus, the appellant claimed, her Honour erred in determining that the jury would have fixed $160,000 as the amount of the respondent's past economic loss.

17 On the face of things, the appellant's argument appears persuasive. But, in my view, it disregards the other aspects of her Honour's reasoning - as summarised earlier[10] - that led to her ultimate determination. It also disregards her Honour's obvious advantage in having seen and heard the witnesses give their evidence of the trial and that she was best placed to appreciate its atmosphere and thereby to draw the necessary inference. Moreover, her Honour's careful analysis of the evidence, the verdict and the parties' respective submissions should not be overlooked.

18 Perhaps the most critical question for her Honour to resolve was what would the jury have considered to have been the respondent's likely retirement age. The appellant's principal attack was on her Honour's conclusion that the jury would have thought the respondent would probably have retired at about the age of 55 years. It is true, as the appellant claims, that the respondent said in her evidence, at least by inference, that she planned to work as a gymnastics coach until much later in life and that her deep involvement with the sport might have led to the view that she would remain working in that capacity well beyond the age of 55. But that position was not pressed by her counsel in his final address. As has been noted, he left it well open to the jury to make the assessment of damages on the basis that the respondent would retire at the age of 55 years - he gave the jury three alternative bases on which to assess economic loss, one being that she would cease work at the age of 55. It is also the case that, by itself, the respondent's age - 52 years at trial - would not have led to the conclusion that she would cease work at 55 years. But the jury (and her Honour) saw the respondent so that it was well open to her Honour to conclude that the jury, given their own experience, would have taken the view that the respondent would not have worked much after about the age of 55 years.

19 It was also not inappropriate for her Honour to consider that the jury would have taken into account, for these purposes, the respondent's pre-existing vulnerabilities. There was a considerable amount of evidence that the respondent was psychologically vulnerable before she worked for the appellant, partly because of her experience at the orphanage and that, before the accident, she experienced stress in her relationships with some of her fellow workers. Thus, it was not plainly wrong for the learned judge to consider that the jury probably took the view that these problems may have surfaced in any event and caused the respondent to cease work earlier than she might have hoped. Similarly, the respondent's work history showed that there were periods where, for good reason, she did not engage in remunerative work. Although it could not be said that this fact was determinative of the question whether the respondent would cease work at the age of 55 or thereabouts, it was not irrelevant to that issue. Furthermore, given the bases on which her Honour proceeded, I think that the allowance that was made by the judge for the vicissitudes of life is unexceptionable and the amount that must have been allowed by her for future economic loss is not so low as to deprive the impugned apportionment of the proportionality that is a necessary ingredient of a proper assessment of past economic loss.

20 It follows from what I have said that, in my view, her Honour did not err in principle in determining that the respondent's past pecuniary loss amounted to $160,000.

Progressive accrual of loss

21 As has already been noted, the appellant argued that, even if there was no error in her Honour's determination that $160,000 reflected the respondent's past economic loss, the learned judge erred by applying the awarded interest rate to the whole of the net pecuniary loss incurred by the respondent over the eight year period without taking into account the fact that the loss for approximately one quarter of that time, between the issue of the proceeding and judgment, accrued progressively. It was said for the appellant that her Honour should have applied the interest rate only to one half of the loss attributable to that period so as to reflect that the loss accrued over that time. In my view, the appellant's submission on this issue should be accepted. As Samuels, J.A. explained in Bennett v. Jones,[11] "... in each case it can rarely, if ever, be right to award interest at the full initial rate upon the whole of an item of loss assessed at the trial. Either the rate of interest**,** initially selected, or the item itself, must be reduced. In the case of past loss of earnings which has accrued at a more or less steady rate, it will generally be acceptable to apply half the rate of

interest to the whole of the amount". It is plain enough that, as Mr Ruskin, for the appellant, submitted, approximately three quarters of the respondent's past loss of earnings[12] had accrued as at the date of the issue of the proceeding and, therefore, it was appropriate that the interest rate be applied to the whole of that amount. On that basis the interest for that period would come to $5,660.69. It is also plain that the remainder of the loss of $31,553.34 - $7,888.34 - accrued only progressively during the balance of the period of the loss so that her Honour should have adopted the conventional approach of calculating the interest on one half of that amount, namely on $3,944.17. Had the learned judge adopted the proper course in that regard the amount of interest to which the respondent would have been entitled for that period would have been $943.45, thereby producing a total figure for damages by way of interest of $6,604.14, rounded off to $6604.

Consequential orders on appeal

22 It follows that, in my view, the appeal should be allowed, but only for the purpose of setting aside the amount of $7,536 that her Honour ordered be paid by way of damages in the nature of interest (and, obviously, the total judgment sum of $137,248.80). A potential difficulty, however, arises as to what is the appropriate sum that should be ordered in its place. Ordinarily, the order of an appellate court takes effect from the date on which it is made, unless the court otherwise orders.[13] Thus, unless it were ordered "otherwise", the replacement sum would have to be calculated to the date of this Court's order and a new interest rate would need to be fixed, if for no other reason than that the maximum rate prescribed for the purpose of s.60 of the Supreme Court Act has been reduced to 11 per cent as from October 2005.

23 Since, in my view, the appeal should be allowed only to the extent of reducing the amount awarded by way of interest, I consider that it would be appropriate to order that the substituted sum for interest be calculated only to the date of the judgment below. On that basis the new amount would be $6604 as explained earlier (and the judgment sum would be correspondingly reduced $136,316.80). Such an approach would be consistent with that adopted in Edmonds v. Donovan[14] and in French v. Smith[15] where, so far as is relevant, the Court merely varied the principal sum assessed below. It was considered in both cases that, by implication, the substituted amount was to take effect from the date of judgment below. That situation may be distinguished from one where, unlike here, the Court sets aside the assessment of damages below and reassess for itself the damages it considers are appropriate on the evidence.[16]

Cross appeal - no evidence of contributory negligence

24 I now turn to consider the respondent's arguments in support of the cross appeal. It was first said, under cover of grounds 1 and 2, that her Honour erred in holding that there was sufficient evidence of contributory negligence by the respondent for that issue to be left to the jury and in rejecting the respondent's submission to the contrary. It was argued that a finding of contributory negligence by the jury was not open on the evidence.

25 The issue of contributory negligence raises the question whether the respondent failed to take reasonable care for her own safety.[17] And it is plain enough that, in a jury trial, this issue is to be left to the jury to decide unless the trial judge considers that the only reasonable verdict open on the evidence, looked at most favourably from the point of view of the defendant, is that there was no such failure by the plaintiff.[18]

26 In support of her case on this issue, the respondent pointed to the distinction between contributory negligence, on the one hand, and mere inadvertence or carelessness, on the other, that was emphasised by the High Court in Czatyrko v. Edith Cowan University.[19] In that case, the plaintiff, who was required to load and stack boxes onto the back of a truck, did not take the simple precaution of looking to see whether the mechanical lifting platform that was adjacent to the rear of the tray of the truck was raised to its level before stepping on to what he thought was the platform, and, because it had not been raised, fell to the ground and was injured. Their Honours pointed out that the plaintiff did not disobey any direction or warning of the defendant as no such direction or warning had been provided. The court also said that "the work was repetitive [and] in all the circumstances, it presented a fertile field for inadvertence", concluding that "[t]he appellant's attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was productive of nothing more than 'mere inadvertence in attention and misjudgment'". The respondent in this case argued that similar reasoning should be applied to the present case in as much as there were no instructions or directions from the appellant relating to the practice of storing equipment under the ballet barre so that the respondent was not ignoring any relevant direction from the appellant. It was said that the respondent merely straightened up in the mistaken belief that it was safe to do so. Thus, it was plain that the only reasonable conclusion that was open on the evidence was that the respondent's failure to look out for the ballet barre was mere inadvertence and not negligence.

27 At the trial the respondent's submissions that contributory negligence be withdrawn from the jury were based primarily on the claim that there was no evidence that the respondent had appreciated that there was a risk of her contacting the barre when straightening up after she deposited the vault box. Before us, however, counsel placed emphasis on the claim that the respondent struck the bracket and that the evidence showed that she did not know of its existence at the time, and no warning had been provided by the appellant about the need for particular attention to be paid to its existence. In that context, counsel sought to highlight the difference between the ballet barre on the one hand - about which the respondent had knowledge - and the bracket that supported it - the existence of which was apparently not appreciated by her. As I understand it, it was the respondent's case before us that the ballet barre and the bracket each presented different hazards to anyone placing equipment in the area in question. In the circumstances, it was said, on the evidence, the respondent was, at worst, guilty of minor inadvertence or inattention, but it could not be said that it was open on the evidence that she failed to take reasonable care for her own safety.

28 I consider, however, that the respondent's arguments under this ground should be rejected for a number of reasons. First, I think that the present case is materially different from the relevant circumstances in Czatyrko. More particularly, the respondent here was not only familiar with the layout of the gymnasium, but was well aware of the existence and location of the ballet barre and, importantly, that hitting it when rising from below might cause injury. Moreover, unlike the situation in Czatyrko, there was no pressure on the respondent to complete the task that plainly did not involve repetitive movements. The respondent had ample opportunity to look at the precise location of the barre - the problem is that she failed to do so. Thus, as I have noted, the decision provides no support to the respondent's argument that, on the evidence, the respondent was only inadvertent or inattentive.

29 Secondly, I consider that the distinction that the respondent sought to draw between the ballet barre and the bracket, such that they were said to be two separate hazards, is without substance. It seems to me that, for present purposes, no realistic distinction can be drawn between the two and, in any event, it must have been obvious to the respondent that the barre was held by a bracket that was beneath it. From the point of view of someone in the respondent's position before the accident, the two items would have effectively constituted one object. Importantly, a person in the respondent's position, who exercised reasonable care when straightening up from a bent or squat position so as to avoid striking the underside of the barre would not have come into contact with it or the bracket. At worst, such a person would have straightened up at a sufficiently slow pace to avoid injury, even if he or she unintentionally struck the barre or the bracket.

30 The essential point is, however, that, as the appellant pointed out in argument, there was not inconsiderable evidence before the jury on which they could properly have found that the respondent's conduct was not mere inadvertence but amounted to failure to take reasonable care for her own safety. For example, the evidence showed, as has been noted, that the respondent was familiar with the layout of the gymnasium and, in particular, the location of the ballet barre on its wall, and that she appreciated that hitting her back on it might cause injury. It was also the case that the respondent agreed that if she had kept a proper lookout the precise presence of the barre would have been obvious to her.

31 In the circumstances, I consider that her Honour made no relevant error in rejecting the respondent's submission that the issue of contributory negligence be withdrawn from the jury. I also consider that it was open to them to find, on the evidence, that the respondent was guilty of contributory negligence.

Apportionment allegedly excessive

32 The respondent next argued ground 3, under which it was asserted that the amount of the apportionment or attribution of contributory negligence to the respondent - 44.167 per cent - was "excessive". I assume the submission is that it was not open to the jury to have made such a large apportionment against the respondent. It was essentially claimed that, given the appellant breached a number of the Occupational Health & Safety (Manual Handling) Regulations 1998 ("the Regulations") that related to activities such as the respondent's storage of the equipment, an apportionment of liability of that magnitude against the respondent was not open to the jury. In support of that contention the respondent pointed to a number of the regulations that it said were breached by the appellant and to the evidence of David Jonathon Trembath that dealt with such breaches. The witness described himself as an "occupational health and safety expert" and, although there seems to have been no objection to his evidence, I note that much of it consisted of inadmissible hearsay and mere assertions. Be that as it may, the respondent's counsel highlighted Mr Trembath's opinion that the barre and attachment ought to have been identified by the appellant as a hazard and that simple measures could have been implemented by it to eliminate or reduce the risk. The witness said that, by reason of appellants' failure to comply with the regulations, the respondent was exposed to a risk of injury when storing gymnasium equipment at the location in question.

33 The approach to be adopted in making an apportionment between the parties of their respective share in responsibility for damage is conveniently summarised in Podrebersek v. Australian Iron & Steel Pty Ltd[20] and Liftronic Pty Ltd v. Unver.[21] It requires a comparison of both culpability and the relative importance of the acts of the parties in causing damage, requiring the whole of the relevant conduct of each of the negligent parties to be subject to comparative examination. The task involves matters of proportion, balance and relative emphasis[22] and is, in this regard, similar to the exercise of a broad discretion.[23] It was this task that was undertaken by the jury in this case and, as was said in Podrebersek,[24] a finding as to apportionment, which is not easily reviewed if made by a judge, is even less so when made by a jury. That this is so is made apparent, for example, by the High Court in Liftronic.[25]

34 In light of the evidence to which I have referred, in particular that which was relevant to contributory negligence,[26] and notwithstanding the evidence that the respondent highlighted concerning the appellant's breach of its obligations to her, particularly under the Regulations, I consider that it was open to the jury to reflect the relative culpability and importance of the respective acts and omissions of the parties by way of the impugned apportionment. Thus, I think that ground 3 should fail.

Failure to give proper directions

35 It was next argued, under cover of ground 4, that her Honour failed to give the jury proper directions on the issue of contributory negligence. In her charge, the learned judge said that the respondent was under a duty to take reasonable care for her own safety in the course of her employment with the appellant and that the determination of whether the respondent discharged that obligation required them to compare her relevant conduct with that of a reasonably prudent employee performing the task that was undertaken by the respondent. Her Honour then said:

"So the question for you to determine is whether in the circumstances and under the conditions in which [the respondent] was required to work, the conduct of [the respondent], amounted to mere [inattention] or misjudgment, or to negligence, rendering her responsible in part for the damage. It is for you alone to decide whether or not [the respondent's] conduct amounted to a failure to take reasonable care for her own protection.

The issue for you is whether the circumstances show more than a mere excusable lapse in judgment, that on the contrary there was here a misjudgment which amounted to a negligent failure by [the respondent] to take reasonable care for her own safety".

The respondent's counsel was particularly critical of this passage, submitting that the judge failed to make clear that mere inadvertence by the respondent did not constitute negligence. It was also said that, in the last sentence of that passage, the reference to "excusable" lapse of judgment begged the question, as did the reference to "negligent" failure to take reasonable care.

36 I consider, however, that, although her Honour's explanation of the difference between mere inadvertence and negligence might have been more extensive, looked at in the context of the whole of the relevant aspect of her charge, it sufficiently explained the two concepts to the jury. Furthermore, whilst counsel's criticism of her Honour's use of the words "excusable" and "negligence" in the context in which they appear is not without some merit, nevertheless, I am not persuaded that there is a real risk that this passage would have led the jury to think that mere inadvertence may constitute negligence. As I have noted, her Honour made it sufficiently plain to the jury that what they had to consider in that context was whether the respondent's conduct amounted to a failure to take reasonable care for her own protection or whether it was mere inadvertence by her, in which case it would not constitute contributory negligence. It was to be one or the other.

37 For these reasons, I consider that ground 4 should fail. The respondent did not press the other grounds of cross appeal. In the circumstances, I would dismiss the cross appeal.

38 To reiterate, I would allow the appeal to the limited extent referred to and dismiss the cross appeal.

39 I have had the advantage of reading, in draft, the reasons for judgment of both Callaway, J.A. and Chernov, J.A. I agree with Chernov, J.A., for the reasons he gives, that the appeal should be allowed and the amount of interest reduced, but only to the limited extent set out in his Honour's reasons. I also agree with Chernov, J.A., for the reasons he gives, that the cross-appeal should be dismissed.

40 There is one aspect of this proceeding in respect of which I wish to add a comment. After receiving the jury verdict, it was necessary for the learned trial judge, before calculating the amount of interest to be awarded to the plaintiff, to embark on the exceedingly difficult task of attempting:

"to arrive by inference at the amount - and perhaps in fairness to the defendant, the minimum amount - that the jury must be taken to have fixed for past loss."[27]

It was necessary for her Honour to do this because, in accordance with what I understand to be the accepted practice in a case such as this, the jury was not asked a specific question about the amount of the plaintiff's past, as distinct from her total, pecuniary loss damages.

41 The result of the procedure adopted in this case is that both parties were put to considerable further expense at the trial and the learned trial judge was obliged to devote further time to the resolution of this proceeding. The extra work included the following matters:

(a) written submissions on the question of interest were prepared by the plaintiff's two counsel (8 pages) and the defendant's two counsel (12 pages);

(b) written submissions in reply were prepared by the plaintiff's two counsel (11 pages) and the defendant's two counsel (10 pages);

(c) a further hearing on 29 October 2004 for the making of oral submissions on the question of interest in which both parties were represented by senior and junior counsel, and in respect of which the judge allowed both of the plaintiff's counsel a brief fee and refresher;

(d) a 24 page judgment on the question of interest which her Honour prepared after carefully analysing all of the evidence, in particular the medical evidence; and

(e) a further argument on 15 November 2004 when her Honour handed down her judgment because senior counsel for the defendant sought to re-agitate the point about the progressive accrual of the loss, which led to senior counsel for the plaintiff attending court after lunch in order to oppose the defendant's attempt to re-argue the point, and in respect of which the judge allowed both of the plaintiff's counsel a further brief fee.

42 In addition, the costs to the parties and the occupation of judicial time have been significantly increased by the bringing of this appeal. Thus, the overall time and cost expended on deciding the amount of interest has been no small matter.

43 Although the amount of interest awarded, $7,536, was relatively small, it would have been obvious to all concerned that, from the effort put in to arguing about interest, the amount awarded would be critical when it came to the question of costs. The members of this Court were not left in any doubt about the consequence in this case because rather surprisingly the Appeal Book contained pages from the transcript relating to the submissions on costs in which the amounts of the defendant's and the plaintiff's statutory offers were mentioned, as was the amount of the margin by which the judgment narrowly exceeded the 90% hurdle which the plaintiff had to overcome in order to have her costs paid.[28]

44 It is the importance of this consequence that leads me to conclude, with the greatest respect, that the statement by Phillips, J.A. in McLennan v Radford[29] that "it should be unnecessary to invite the judge to embark upon the exercise when, with a bit of goodwill and commonsense, counsel could probably reach agreement without much difficulty once a verdict has been obtained" is simply unrealistic in those few cases where the costs order depends on the calculation of interest. Both the competing submissions and the judgments in this appeal demonstrate just how difficult it can be to reach agreement on what amount the jury should be taken to have fixed for past loss.

45 In one sense, it is all the more frustrating that there is, in this case, the need to undertake the difficult task of deciding what the jury allowed for past pecuniary loss, because when the jury came to give their answers to the five questions asked of them, it appeared as though they had such a figure in mind. According to the transcript the following occurred when the jury returned to court to deliver their verdict:

"ASSOCIATE: How do you find, was there any negligence and/or breach of statutory duty on the part of the defendant which was a cause of injury loss or damage to the plaintiff.

FOREPERSON: We find yes.

ASSOCIATE: And what amount do you assess the plaintiff's pain and suffering damages?

FOREPERSON: Pain and suffering damages we allow for $100,000.

ASSOCIATE: And what amount do you assess the plaintiff's pecuniary loss damages?

FOREPERSON: Including past earnings, past super, future earnings, and future super, in that order, past earnings ---

HER HONOUR: No, no, lump sum. Do you want to check it with a calculator?

FOREPERSON: Yes, please. Sorry, I broke it down.

HER HONOUR: No, that's all right.

FOREPERSON: The final figure is $235,808.

ASSOCIATE: Was there any contributory negligence on the part of the plaintiff which was also a cause of injury loss or damage to her?

FOREPERSON: Yes.

ASSOCIATE: By what proportion or percentage is it just and equitable that the plaintiff's damages should be reduced?

FOREPERSON: Contributory negligence was a figure of 44.167 per cent."

46 This raises the question of whether in an appropriate case it would be possible for a trial judge to ask the jury a question relating to past pecuniary loss. No doubt there is much to be said for the general verdict, which has been described as being "inscrutable as the sphinx"[30], and for "the policy of the law" that inquiries are not made "into the reasoning which lies behind a general verdict."[31] In a case such as this, however, the governing legislation already requires the verdict to be given broken down into pecuniary loss damages and pain and suffering damages.[32] It seems to me, therefore, that in an appropriate case little would be lost and much would be gained by adding a further question to be asked of the jury. The difficulty is, of course, knowing in advance whether the case being heard is one where asking the jury to specify the amount of past pecuniary loss will be necessary to avoid the protracted argument about interest. Nevertheless, it seems to me that, in future, consideration could and should be given by the trial judge and counsel to the question of whether it would be appropriate to ask the jury a question relating to past pecuniary loss.

[1] I note that in the end no criticism was made of the fact that the jury purported to apportion contributory negligence with a precision amounting to five decimal places.

[2] A special order would have been necessary under s.74(3) of the County Court Act 1958.

[3] It is not clear to me that that is the true construction of s.135A(16). It has little support in the language of the sub-section and, notwithstanding the passage from the judgment of Reynolds, J.A. set out in McLennan v. Radford [2003] VSCA 114; (2003) 7 V.R. 1 at 10 [26], all that Phillips, J.A. said was that the proper task for the judge was to arrive by inference at the amount that the jury must be taken to have fixed for past loss and perhaps, in fairness to the defendant, the minimum amount. Because of the common ground between the parties, the point was not argued and I say no more about it.

[4] Some time prior to this the appellant had placed the administration of the leisure centre out for tender as part of the compulsory competitive tendering process and its employees were unsuccessful in their bid to win the tender. As a consequence, the respondent's position was terminated.

[5] Relevantly, this provision provides:

"A court must not, in relation to an award of damages in accordance with this section, order the payment of interest, and no interest shall be payable on any amount of damages, other than damages referable to loss actually suffered before the date of the award, in respect of the period from the date of ... the injury to the person in respect of whom the award is made to the date of the award."

[6] The respondent's past economic loss spanned the period 15 August 1996 to 15 November 2004, a period of approximately eight years. The loss that was sustained between 16 October 2002 (the commencement of the proceeding) and 15 November 2004 (date of judgment) - namely approximately one quarter of the period - occurred progressively over that time.

[7] [2003] VSCA 114; (2003) 7 V.R. 1 at 10-11.

[8] See para. [13] above.

[9] At 7.

[10] See paras.[13] and [14] above.

[11] [1977] 2 N.S.W.L.R. 355 at 380. See also State Government Insurance Office (Qld) v. Biemann [1983] HCA 34; (1983) 154 C.L.R. 539 at 546-548 per Gibbs, C.J, Mason, Deane, and Dawson, JJ. and D. I. Cassidy Q.C., "Interest Revisited" (1997) 71 Australian Law Journal 514 at 522.

[12] Namely, $23,665.

[13] See Rule 59.02 of the Rules of the Court, Official Receiver in Bankruptcy v. Schultz [1990] HCA 45; (1990) 170 C.L.R. 306 at 318 per Mason, C.J., Brennan, Deane, Dawson and Gaudron, JJ. and State of Victoria v. McIver (No.2) [2005] VSCA 126 at [3] per Ormiston, Callaway and Batt, JJ.A., and the cases referred to in footnote 3.

[14] [2005] VSCA 97.

[15] [2005] VSCA 114.

[16] See G.E.F. Packaging Services Ltd v. Turner, Victorian Court of Appeal, Unreported, 5 September 1995, Brooking and Hayne, JJ.A., and French v. Smith at [30]-[33].

[17] Astley v. Austrust (1999) 197 C.L.R. 1 at 14 per Gleeson, CJ., McHugh, Gummow and Hayne, JJ.

[18] See Naxakis v. Western General Hospital [1999] HCA 22; (1999) 197 C.L.R. 269 at 271 per Gleeson, CJ., and at 309 per Callinan, J. approving the test stated by Jordan, CJ. in De Gioia v. Darling Island Stevedoring & Lighterage Co. Ltd (1941) 42 S.R. (N.S.W.) 1 at 5. See also Naxakis at 289 per Kirby, J. and Swain v. Waverley Municipal Council [2005] HCA 4; (2005) 220 C.L.R. 517 at 580-581 per Kirby, J.

[19] [2005] HCA 14; (2005) 79 A.L.J.R. 839.

[20] [1985] HCA 34; (1985) 59 A.L.J.R. 492 at 493-494.

[21] (2001) 75 A.L.J.R. 867 at 868 [2] per Gleeson, CJ.

[22] See Podrebersek at 493-494.

[23] See Moore v. Scolaro's Concrete Constructions Pty Ltd (In liq) [2004] VSCA 152 at [8] and [9] per Callaway, J.A.; Kingswood Golf Club Ltd v Smith [2005] VSCA 224 at [25] per Callaway, J.A.

[24] At 494.

[25] At [3] per Gleeson, CJ. at [33] and [40] per McHugh, J. and at [58] and [60] per Gummow and Callinan, JJ.

[26] See paras. [24]-[26] above.

[27] McLennon v Radford (2003) 7 VR I at [26] per Phillips, J.A., with whom Eames, J.A. and Warren, A.J.A. agreed. I note and respectfully agree with the comments of Callaway, J.A. contained in footnote 3 in his reasons for judgment.

[28] See s.135A(13A) of the Accident Compensation Act 1985.

[29] [2003] VSCA 114; (2003) 7 V.R. 1 at [29]

[30] Ward v. James [1966] 1 Q.B. 273 at 301 per Lord Denning M.R.

[31] Cousins v. Bradford Kendall Foundries Pty. Ltd. (1986) 7 N.S.W.L.R. 428 at 439 per McHugh, J.A. For discussion of the history of, and differences between, general verdicts and special verdicts, see Russell v. The Victorian Railway Commissioners [1948] VicLawRp 24; [1948] V.L.R. 118 at 119-124 per Gavan Duffy, J. and 130-133 per O'Bryan, J. and Otis Elevators Pty. Ltd. v. Zitis (1986) 5 N.S.W.L.R. 171 at 178-180 per Kirby, P., at 188 per Priestly, J.A. and at 194-201 per McHugh, J.A.

[32] See s.135(7) of the Accident Compensation Act 1985.