McLennan v Radford [2003] VSCA 114

"(15) 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 an 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 death of or injury to the person in respect of whom the award is made to the date of the award."

Thus, interest was allowable only on damages referable to past loss[1] - in this case past loss of earnings. The judge was therefore invited by both counsel to fix the amount on which interest should be paid. Her Honour then fixed that sum at $118,423.56.

7. Accordingly, judgment was given for the plaintiff in accordance with the jury's verdict in the sum of $325,000 (comprising $135,000 for pain and suffering and $190,000 for pecuniary loss) plus damages in the nature of interest at $19,235. The total judgment figure was therefore said to be $344,235 from which there was to be deducted, pursuant to s.93(11) of the Act, the sum of $36,820 (a figure given to the judge by counsel). In the result, judgment was given for the net sum of $307,415 and the defendant, the present appellant, was ordered to pay the plaintiff's costs.

10. The appellant now appeals and so far as relevant[2] seeks to take three points. First, it is said that the judge erred in fixing $118,423.56 as the amount for past economic loss and therefore as the amount on which interest should be paid. Secondly, it is said that the judge erred in failing to deduct from $118,423.56 the payments received by the respondent under s.49 of the Act, in the amount of $23,414.40[3]. Thirdly, it is said that the judge fell into error by failing to deduct from the sum of $118,423.56 the sum of $12,939 which was "the undisputed amount the respondent/plaintiff earned from her pizza delivery work" before the date of the trial. The second and third allegations of error are to be found in an amended notice of appeal which the appellant sought leave to serve and file at the commencement of this hearing. I would grant that leave; for, although neither of the two additional points was really drawn to attention below, there is no significant dispute about either of them now.

14. The following is taken largely from the judge's charge to the jury. The respondent, who was born on 7 January 1975, was 26 years old at the time of trial and living with her fiancee, her partner of some ten years. Apparently, she had early childhood problems as a result of which she had left home at the age of 16 (in 1991) and gone to Queensland with her boy friend, but they had returned after only a few weeks, to live in Stawell. Subsequently, and after a good deal of effort, the respondent had obtained a job with Seppelts in mid-1995, working on the bottling line, a job which she said she enjoyed. She was employed only as a casual worker but she was hoping, she said in evidence, for full-time employment. Shortly after she commenced work, however, she strained her back lifting a box and saw her doctor who referred her to Mr. Patrikios, an orthopaedic surgeon, who recommended light duties for her. On 22 November 1995, which was about a week before she was to be deemed fit for her pre-injury duties, she was involved in the motor vehicle collision that was the origin of this proceeding.

17. The respondent managed to get out of the car but shortly after suffered pain in her lower back and was unable to straighten up. She was helped to the doctor's surgery where she had to lie down because the pain was so intense. She was not able to return to her work at Seppelts. Before the accident she had engaged in a number of sporting activities including callisthenics, netball, aerobics, badminton and darts. She and her partner also did bushwalking and went motor bike riding, the latter being a passion of his. She tried one season of netball after the accident but she stopped because of the pain that occurred after each game. She continued to go motor bike riding and bushwalking on level areas. Because of the pain she increased the number of tablets she was taking each day.

20. As a result of her ongoing problems, Mr. Patrikios recommended surgery and on 3 April 1997 she underwent a fusion at L4/L5 and L5/S1. She was in hospital for ten days, where screws and plates were inserted in the lower back, and she was in bed for about three months. By the end of 1997 she was taking large amounts of pain killers and in 1998 she went to a pain clinic in Ballarat. While she was there, acupuncture was recommended and that seemed to help in reducing the pain. In 1998 she commenced looking for work by filling out applications for jobs, but with little success. Eventually she got a part-time job delivering pizzas on 4 January 1999 and she was still doing that work at the time of the trial. But, she said, at the end of each day's work she had to lie down and take pain killers. She was still unable, she said in her evidence, to do aerobics, callisthenics or play badminton, although she walked the dog and on occasion was a passenger on her partner's motor bike.

23. It was common ground at trial that the injury suffered in the transport accident on 22 November 1995 had aggravated the earlier work-related injury to the respondent's back and that she was entitled to damages for whatever disability had been caused by that aggravation. At trial there was no suggestion, as I follow it, that the respondent was able to do more work than she said; rather, when dealing with her earning capacity, appellant's counsel referred the jury to what he called her poor work record, all her efforts to obtain employment having resulted simply in some casual work which was not likely to be permanent. On the evidence it appeared that those employed by Seppelts to do casual work worked for up to only six months in a year, while full-time workers, who were permanent, worked for 12 months. According to the company's Human Resources Coordinator, casual workers were told, when they commenced employment, that the work would end at the end of the season, although a small number might be brought back after Christmas, being people who had exhibited attributes the company wished to retain: some few even became permanent employees. He said that he recalled the respondent and did not think that she would have fitted into that "exceptional category".

27. It was in light of the foregoing that counsel made their addresses. Appellant's counsel submitted to the jury that their award of damages for pecuniary loss should be in the order of $40,000 for past loss and $60,000 for the future. As recounted to the jury by her Honour, that submission went along these lines:-

(1) As for the past, the claim commenced on 22 May 1997 because during the first 18 months after the accident the respondent had been paid for her losses (under the Act). Based on the average of the four pay slips which had been tendered in evidence, her earnings would have been at the rate of $429 per week, to which had to be added 8% for employer-funded superannuation. Had the respondent been earning at that rate for six months of the year, the total would have been $46,795, from which there had to be deducted $12,939, the amount which the respondent had earned quite recently from delivering pizzas. Counsel then said that something further should be added to take into account the fact that the original income figure of $429 per week was "back in 1995 and there have been increases since then up to now"; for that, he suggested adding another $7,000 or thereabouts. The result, about $40,000.

(2) As for the future, counsel said that he worked "on the assumption that she [now] has no capacity to do any casual work at all". Earnings for casual work, for six months in the year, were, according to the evidence, $504 per week after tax, to which had to be added employer-funded superannuation. The result, when averaged out over the span of 12 months, came to approximately $282 per week which was, as counsel put it, "in yearly terms what [the respondent] would have earned on a six month basis today if she was working casual at [Seppelts]". Mention having been made of her working until age 55 or 60 or 65, appellant's counsel took the multiplier appropriate to age 60, which was 765 and produced a figure of $215,730 - or, after discounting by 15% for vicissitudes, $183,000. Appellant's counsel wrapped up the submission to the jury thus: -

"So what proportion of her work capacity do you think she has lost by reason of the aggravation, what proportion of it? She cannot do repetitive work, cannot do heavy lifting, she cannot sit in one place for long periods of time. How do you factor that into your overall figure? Do you say that means that she has lost a work capacity of 25 per cent of the overall figure, 50 per cent, a third? It is entirely a matter for you."

Suggesting that the respondent had lost one-third of her overall capacity, appellant's counsel put the figure for future economic loss at "just over $60,000". In total, therefore, appellant's counsel suggested, for pecuniary loss, "something in the order of $100,000". And he put the like figure for general damages.

35. Respondent's counsel put to the jury figures which were very different indeed. In the end, he put before the jury a table containing five columns of figures: the first, based upon the respondent's wages of $423 net per week at the time of the transport accident, with no increments; the second, based upon an actuarial report if the respondent had worked for 10 months a year; and the third, fourth and fifth, based upon the actual earnings to date of what were called "comparable employees", A, B and C. These last three were all full-time workers, employed at Seppelts on a permanent basis. Calculations of future earnings were to age 65; they included employer-funded superannuation, but they were also discounted by 15% for vicissitudes. In explaining these to the jury, respondent's counsel fairly said that each "has got defects like all of these approaches have". All, save the second, supposed that the respondent would have worked, but for the accident, for 12 months of the year.

38. In summary, the first column of calculations, based upon the respondent's wage of $423 net per week, showed earnings (including employer-funded superannuation) as $78,744 for the past and for the future, after discounting, $370,614. The actuarial report, supposing earnings for only 10 months per year was more as to the past and less as to the future; but the three columns based upon "comparable employees" A, B, and C, were all significantly greater in amount. The last, based upon the actual position of "comparable employee C", showed past earnings, to 26 March 2001, as $118,413.56 and, for the future, after discounting, as just under $426,600. The respondent's recent earnings from delivering pizza were deducted from past earnings as set out in column 1 and were factored into the actuarial calculation in column 2, but importantly, they were not brought to account at all in the columns referable to "comparable employees" A, B and C.

41. In telling the jury about these last three columns, respondent's counsel said:-

"Now, they are different because their wages are not entirely identical. If we move from A through to C, above the first one you could put Judith Smith, employee A is Judith Smith. Employee B is Stanley Payne. Employee C is Kim Lowe/Smith, married name and single name. Now, again, these figures, they run the same way. They are just calculations done of the past loss, the future loss, past super, future super, take 15 per cent off down there and you get to those figures. Principally why they are different is that as you have heard from the lady on the video link, Kim Lowe, that is employee C, she is now supervisor. So she has gone on and got herself promoted and so forth and so there is a difference as there is [in] any workplace. Some people do better than others. All we are trying to do is to give you a bit of an average sample, if you like, across three employees. Now, the defendant may say, well, look, that is unfair to us because they are now permanent people and Natasha [the respondent] may not have been a permanent person. Well, so what? I mean, it is really just to give you some assistance in relation to that, but why would she not have had as much chance as anyone else to get herself into permanent employment? If she is prepared to work under the difficulties she presently works under, why would she not? As a matter of probabilities, it is not certainty, we cannot be certain, but why would she not probably have made the grade? Is there any real reason to knock her down and to knock her out of being a candidate for permanent employment? We would say not. We would say quite the contrary. But again, with respect to those comparable employees, there are different figures that you come to and they are there to just give you some guide with respect to calculating this pecuniary loss damages."

Thus, counsel for the respondent put to the jury figures based upon the loss of a capacity to work for much longer than the 6 months per year adopted by appellant's counsel. As he put it to the jury, "why would she not have had as much chance as anyone else to get herself into permanent employment?".

47. As already recounted, the jury's verdict was $135,000 for pain and suffering and $190,000 for pecuniary loss. It is apparent therefore that the jury rejected the appellant's calculations, at least in part. By the same token, in his submissions to us Mr. Gorton accepted that the jury had also rejected any claim for loss in the future of "permanent employment", meaning employment lasting for 12 months each year; for otherwise the jury must have awarded for future loss a good deal more than they did.

50. When counsel invited the trial judge to determine how much the jury had allowed for past loss, not surprisingly respondent's counsel put the submission that the "jury have not allowed very much for the plaintiff's future losses" and accordingly he sought a determination of past loss at the highest of the five columns of figures set out in the respondent's table[4]. He said:-

"There is no precise science about this, it is a matter of your Honour's determination with respect to the evidence, but it is our submission that they have, in effect, taken a much more optimistic view about the future in relation to the plaintiff, but that ought not on the evidence of the doctors and everyone else in the case, ought not to lead to any reason to conclude that there has been anything other than a full measure of the past losses."

On the other hand, appellant's counsel drew the judge's attention to the marked contrast displayed by the table of figures relied upon by respondent's counsel, at the highest end giving a figure of "about $120,000" for past loss and "about $460,000" for the future and, at the lowest end, "about $78,000" for the past and "about $335,000" for the future. He urged upon the judge that-

"... the only conclusion you can come to is that she [would] be casual and so that the figure for past loss is closer to the $40,000 figure put by [appellant's trial counsel] rather than the higher figure ...".

56. Submissions by counsel below were relatively brief, being occupied more with the precise figures already used before the jury than with any argument of principle or the like. In response the learned judge said only this: -

"HER HONOUR: Yes, thank you. Yes, well, in the circumstances, I do think it is appropriate that the interest should be calculated on the basis of a past loss of - well, it is $118,000 odd, isn't it? COUNSEL [for the respondent]: 118,413 your Honour. HER HONOUR: Yes. It is a comparable employee and that is a - yes. And I suppose it is a view of my - my view of the evidence in reality, is it not, ... in a sense? I hear what you say, but I think in the circumstances I am going to order that interest be paid on the $118,423.56. Is that correct, gentlemen? COUNSEL [for the respondent]: I think it is 118,423, yes, your Honour."

In fact it was $118,413, not $118,423, if one simply added the figures in the last of the five columns put by counsel for the respondent to the jury, but that slip is of no significance now. The judge plainly adopted the last of the five columns as that of "a comparable employee" and made her determination accordingly.

62. The principal error asserted by the appellant lay in her Honour's taking the figure of $118,423.56 (or, if corrected for the slip, $118, 413.56) as the appropriate amount on which interest should be paid. If that was to be the sum which should be taken as allowed by the jury for past loss, there was, as Mr Ruskin put it, a demonstrable lack of proportionality; for it must mean that for future economic loss the jury allowed less than $72,000 (after discounting for contingencies). Counsel submitted that there was no rational basis for supposing that the jury, while accepting the gloomiest version of the evidence in respect of past loss, assumed that for the future the respondent enjoyed "rosy prospects" - and I agree. There was nothing in the evidence, as I see it, to demonstrate that such incapacity as was imposed upon the respondent by reason of the accident on 22 November 1995 was a good deal worse before the trial than it was likely to be after it. On the other hand, building upon the fact that the appellant had accepted total past loss by the respondent as a part-time casual worker (the loss which appellant's counsel at trial put in the order of $40,000), Mr. Gorton contended that the jury, having agreed that there was total past loss, might also have considered that, on the balance of probabilities, the respondent would have had permanent, full-time work, but for the accident. On that basis (he submitted) the figures given for "comparable employee C" in the respondent's table were apt and the loss of $118,423 (subject to some reduction for actual earnings from delivering pizzas) was a reasonable finding. Mr. Gorton emphasised that it was a finding and should not lightly be disturbed on appeal.

65. It is obvious enough that the judge's assessment of $118,423 for past loss depended wholly upon her Honour's conclusion that "comparable employee C" was in truth comparable, meaning like. Yet, with respect, I do not think that that can properly be said to have been established. As respondent's counsel reminded the jury, evidence had been given by "employee C", Kim Smith, who was now a supervisor. (As respondent's counsel himself said, "some people do better than others".) Ms Smith gave evidence that she had first worked with Seppelts as a casual employee for a couple of years, had moved around to work with three different wines, on different machinery, and had subsequently applied for a supervisory job and got it. She had worked as a supervisor for the last three to four years, on the bottling line. Since she had been at Seppelts, there had been only two positions open for a supervisor (she said); the others who had started at about the same time were still there, some of them permanent and some of them still casual. To become a supervisor (she said in cross-examination), "you have to work extremely hard" and work on "all the machinery on the line". She said: "I did extremely long hours ... and I just worked extremely hard". She added: "I did overtime wherever possible, whenever asked, and I also did a bit of schooling .... a few certificates".

68. That evidence is sufficient, in my view, to demonstrate that there was no sound basis for concluding, in relation to past loss, that the respondent's hypothetical earnings should be assessed as on a par with the earnings of "comparable employee C". The case of the respondent and of Ms Smith were not relevantly comparable. The respondent had joined Seppelts in mid-1995 and was injured at work, not long afterwards, on 15 August 1995. She never got back to all her pre-injury duties, before suffering the transport accident on 22 November 1995 and the Human Resources Coordinator expressed his opinion that the respondent was not, as a worker, of that "exceptional" character likely to be advanced from casual work to permanent work. That she should be assessed, for past loss, as if, but for the accident, she would have attained the rank of supervisor as did Ms Smith is simply not sustainable on the evidence that was given. For that reason alone, I would allow the appeal and set aside the determination of the trial judge.

71. Other criticisms, too, can be made of that determination. First, the calculation of past loss by reference to "comparable employee C" took no account of the respondent's earnings from her delivering pizzas. Of the five columns of the table put by respondent's counsel before the jury, the first did make deduction for the pizza delivery earnings, but the last three columns made no such deduction. So much is apparent from the particulars given by the respondent, being a more detailed tabulation of the earnings used in the respondent's five column table. Accordingly if the amount for past loss was to be $118,423 according to "comparable employee C", the sum of $12,939 should have been deducted before interest was calculated. It was not - a failure for which both trial counsel should, I think, bear some responsibility, as neither drew attention to it below.

74. Secondly, no deduction was made from the sum of $118,423 for the amount of the payments already made to the respondent under s.49 of the Act; yet such should have been deducted before interest was calculated. (Again this was a point not drawn to attention below.) Payments under s.49 are for loss of earning capacity and in this case they began at the end of the first eighteen months after the accident. They were made from 22 May 1997 until 21 November 1998 and thus were for and in respect of at least the start of the period of the common law claim. Mr. Ruskin contended that it was s.93(11)(a)(i)[5] that required that those payments be deducted before interest was calculated. For his part, Mr. Gorton disputed that construction of the statutory provision, submitting that, while s.93(11)(a) required the deduction of such payments, it was only from the judgment sum and not necessarily from the amount recovered for past loss. None the less Mr. Gorton agreed that "at common law" (meaning irrespective of the statutory provision, however construed) the amount of $23,414, representing the s.49 payments, should have been deducted from any sum on which interest was to be calculated. He accepted that the respondent was not entitled to interest on payments already made, and in particular the payments made under s.49. The question of the proper construction of s.93(11)(a) then became academic.

77. On more than one ground, therefore, the determination by the trial judge that $118,423.56 was the amount referable to past loss, and on which interest should be calculated, was flawed.

81. It follows from the foregoing that I see no sound basis on which to conclude that for the purpose of assessing the amount allowed for past loss, figures should be simply transferred from those of the three "comparable employees" shown on the table used by counsel for the respondent; all of them were calculations based on full time, permanent positions with Seppelts, in which the employees worked for 12 months each year. So, too, the first of the five columns in that table supposed that the respondent would have worked for 12 months at the salary she was receiving before she was injured. According to that first column, the respondent would have earned (to date of trial) $78,544.40 (when employer-funded superannuation was added), but, like the others, the calculation was flawed, in my opinion, to the extent that it turned on the respondent's working for 12 months in the year. It could have been taken as no more than a guide to earnings on an hypothesis not established by evidence. If on that score the table used by the respondent below is to be put aside, the calculations made by the appellant's counsel gain significance; for they were calculations on the basis of the respondent's remaining a casual employee, working for no more than six months a year.

84. It was on that basis, as already described, that appellant's counsel had suggested to the jury $40,000 for past loss and $60,000 for the future. Why, then, did the jury award a total of $190,000? Was it because they increased the amount for past loss or was it because, which may have been more likely, the jury was not content to adopt counsel's suggestion of a one-third destruction of earning capacity by reason of the aggravation occasioned by the transport accident in November 1995? As counsel put it to them, the question whether the plaintiff's earning capacity had been diminished by a quarter, a third, or a half was entirely a matter for them and it seems not at all improbable that the jury might have opted for much more than a third. Moreover, if as I think, there was insufficient evidence on which the jury could properly have concluded that she would probably have been working full time but for the accident, none the less they might have allowed her something for the mere chance that, at least on occasion, she might have worked for this employer for more than the minimum of six months.

87. This last in particular is in line with Mr. Ruskin's submissions to us. He suggested that, while appellant's trial counsel had suggested about $40,000 for past economic loss, the jury might have given more because of either or both of two considerations. The first focused on the amount allowed for some increase in wages after 1995. Counsel's calculation of lost earnings was based primarily upon 1995 rates and he had allowed, within the end result of $40,000, some $7,000 for such increments. The jury, suggested Mr. Ruskin, might have allowed more. Secondly, counsel's figures were based upon the plaintiff's working no more than the six months usually accorded to casual workers by this particular employer; yet the jury might have thought that, all things considered, had it not been for the accident the plaintiff might have worked occasionally for a month or two more, as did some casual workers according to the evidence. Bearing in mind these considerations, Mr. Ruskin very fairly conceded that the jury might have awarded anything between $40,000 and $60,000 for past economic loss.

90. To my mind, there is much force in Mr. Ruskin's submissions and they should be accepted. Not only does the concession of Mr. Ruskin afford us some comfort should this court choose $60,000 for past economic loss: that sum is also about one-half of the figure chosen by the judge. It will be recalled that $118,413.56 was the calculation of past loss according to the earnings of "comparable employee C" and, if the jury considered, as they probably did, that the respondent was unlikely (at least in the main) to have worked more than six months in a year, an amount approximating one-half of $118,413.56 could well have seemed attractive. It was, after all, a calculation based upon actual earnings of an employee with Seppelts at the relevant time and although it represented increments earned by one who was not only permanent but also a supervisor (and thus in a higher position than the respondent would probably have achieved), the use of those increments might have been seen as compensating not only for such increases as the respondent herself might have earned, but also for the possibility that she might have worked, on occasion at least, for a month or two beyond the six. Given the broad nature of the calculation, I would conclude that $60,000 should be taken to be the amount awarded by the jury for past economic loss.

93. Mr. Ruskin submitted that in determining the amount on which interest should be paid, the task for the judge in a case like this was to find the amount which the jury, acting reasonably, probably allowed having regard to the total verdict for pecuniary loss. Mr. Gorton submitted that the task was somewhat different: that the jury, having found that pecuniary loss was suffered in the amount of $190,000, had completed its task so that the judge was required to make her own decision as to past loss on the evidence as she saw it, independently of the jury as it were, provided only that the conclusion was not inconsistent with the jury's total for both past and future. In so far as her Honour gave reasons for her decision, it seems that she would have preferred the latter view to the former; but it is not, I think, the correct view.

96. Neither counsel referred us to any authorities to establish the nature of the task confronting a judge under s.93(15), but reference may be made to what has been said in a not dissimilar situation in New South Wales. In Otis Elevators Pty. Ltd. v. Zitis[6] Kirby, P. had occasion to refer to the judge's task in fixing interest on that portion of a jury's verdict which was referable to past loss and in so doing, his Honour approved the following statement by Reynolds, J.A. (with whom Glass and Mahoney, JJ.A. agreed) in Vardanega v. Concrete & Terrazzo Pty. Ltd.[7] when speaking of a submission, in effect, that only the jury itself could provide the necessary dissection of the verdict:-

"The submission, extended to the full, would deprive a judge of the power to award any interest in a case where no dissection of the jury's verdict had been sought and obtained. This proposition cannot be accepted. It is true that a judge should not speculate as to the probable or possible combination of figures which go to make up a lump sum verdict, but there is no reason why a judge, having heard the evidence and the verdict, could not in proper cases draw sound inferences as to the minimum amount which was awarded for past losses and act accordingly."

See also and compare Commonwealth of Australia v. Ryan[8] and Hogan v. Trustees of the Roman Catholic Church for the Archdiocese of Sydney[9]. On the foregoing basis, the proper task for the judge is 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. For the reasons already given, I think that that amount should be determined here as having been $60,000.

101. Accordingly I would direct that interest be paid on the sum of $60,000 after, of course, making appropriate deduction for the payments made to her under s.49 of the Act. (I see no need to require a like deduction for the earnings of the respondent for pizza delivery, because those earnings were brought to account in counsel's calculation of the $40,000 which is at least the base for Mr. Ruskin's suggestion of $60,000.) I would leave it now to counsel to agree upon the amount of interest to be included within the judgment that should follow, bearing in mind that, as with the assessment of damages itself, a "broad brush" approach may be appropriate[10] now that the relevant capital sum has been sufficiently identified.

105. It follows that I would allow the appeal, set aside the judgment given below in the County Court on 2 April 2001 and substitute instead a judgment which is consistent with the foregoing. But before leaving this matter I would mention a matter of some practical importance.

108. The task of determining how much a jury should be taken as having allowed for past loss, though by no means new, is obviously one of some difficulty where the verdict does not differentiate between past and future. In earlier days it was a task frequently undertaken by counsel, for the purpose of calculating interest, when juries returned a general verdict and it was necessary to distinguish, first between the amount allowed for past pain and suffering as distinct from pain and suffering in the future and then as between past economic loss and future economic loss. Commonly, as I understand it, counsel were able to reach agreement and, if I may

say so, I think that that is how the matter should have been approached on this occasion. 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. That not only the judge in the County Court but now also three judges of this Court have been occupied by the question agitated on this appeal is altogether out of proportion to the issue involved and in future counsel should do their best to reach agreement before embarking upon the course followed here. As the High Court said of the calculation of interest on damages in Fire & All Risks Ins.[11], "the process should not be permitted to assume an importance incommensurate with its relative effect".

113. I have had the advantage of reading in draft the judgment of Phillips, J.A. For the reasons given by his Honour I agree that the appeal should be allowed and the judgment below should be set aside. Judgment, in lieu of that entered below, should be entered for a sum calculated having regard to the approach to the calculation of interest which his Honour stipulates.

118. I agree with the reasons and disposition of the appeal as proposed by Phillips, J.A.

[1] For the notion of past loss as understood in this area, see, for example, Ruby v. Marsh [1975] HCA 32; (1975) 132 C.L.R. 642 at 660 per Gibbs. J., 662-3 per Stephen J., 667-8 per Jacobs, J.; Fire & All Risks Ins. Co. Ltd. v. Callinan [1978] HCA 31; (1978) 140 C.L.R. 427; Cullen v. Trappell [1980] HCA 10; (1980) 146 C.L.R. 1 at 19 per Gibbs, J.

[2] The appellant complained in the notice of appeal about the inadequacy of the judge's reasons but in argument that effectively merged with the other points taken.

[3] Under s.49 of the Act, weekly payments are made for loss of total earning capacity, commencing 18 months after the accident or when other entitlement ceases, whichever happens last. The sum of $23,414.40 was paid under s.49 between 22 May 1997 and 21 November 1998. The writ was filed on 6 December 1999.

[4] The table described in paragraph [9] above.

[5] Section 93(11)(a)(i) reads:-

"(11) Damages under sub-section (7) are to be reduced -

(i) if the person was entitled to compensation under this Act, by the amount of compensation paid in respect of the injury under sections 49, 50 and 51..."

[6] (1986) 5 N.S.W.L.R. 171 at 175.

[7] New South Wales Court of Appeal, 22 October 1979, unreported.

[8] [2002] N.S.W.C.A. 372 (21 November 2002) at [55].

[9] [2003] N.S.W.S.C. 264 at [8].

[10] De Nitis v. Seekts [1962] VicRp 60; [1962] V.R. 417 (Smith, J.) and Murphy v. Murphy [1963] VicRp 83; [1963] V.R. 610 at 614 per Herring, C.J., both approved in Fire & All Risks Ins. Co. Ltd. (1978) 140 C.L.R. at 433. See also Clarke v. Foodland Stores Pty. Ltd. [1993] VicRp 81; [1993] 2 V.R. 382 at 402.

[11] (1978) 140 C.L.R. at 432-3, quoted in Clarke, supra, at 402. See also Bennett v. Jones [1977] 2 N.S.W.L.R. 355 at 364, Cullen v. Trappell (1980) 146 C.L.R. at 22 per Gibbs, J.; Luntz , Assessment of Damages for Personal Injury and Death (4th ed., 2002) para. 11.3.17.