Plaintiff v Defendant

1 On 7 December 2015, a jury returned verdicts in three separate actions for negligence brought by the plaintiff against his employer. The plaintiff had sued for general damages only (pain and suffering, loss of enjoyment of life, loss of amenity). The jury found negligence in all three causes of action and awarded general damages of $2,000, $2,000 and $241,000. The total pain and suffering damages awarded was thus $245,000. The plaintiff's actions were brought under s 134AB of the Accident Compensation Act 1985 (ACA).

2 Pre-proceeding statutory offers were made. They are irrelevant to the question of law I am asked to determine, which is:

Is the plaintiff entitled to interest on these awards for pain and suffering damages?

3 Section 60 of the Supreme Court Act 1986 provides that the Court, unless good cause is shown to the contrary, must give damages in the nature of interest to run from the commencement of the proceeding to the date of the judgment. This section is confronted by s 134AB(34) of the ACA, which reads as follows:

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 death of or injury to the person in respect of whom the award is made to date of the award.

This tortuous 75-word sentence has been the subject of consideration by Ashley J in Eccles v Taylor (Eccles).[1] In that case, the sentence appeared in s 93(15) of the Transport Accident Act 1986 (TAA). His Honour concluded that interest was not payable on pain and suffering damages.[2]

4 Mr Waugh, who appeared with Mr Adams QC for the plaintiff, contends that Eccles was wrongly decided, relevantly disapproved in Williams v Oataway (Oataway)[3], and that the intention of Parliament was to restrict awards of interest to the period before judgment rather than to confine those awards to any particular type of damages.

5 Mr Jens QC, who appeared with Mr M. K. Clarke for the defendant, contended that Eccles was correctly decided, had not been relevantly disapproved in Oataway, and had been applied consistently for 20 years. He also submitted that the fact that provisions identical to s 134AB(34) had been incorporated into other Acts since Eccles (including s 134AB(34) itself) led inexorably to the conclusion that Parliament concurred in Ashley J's construction of the impugned provision.

6 In Eccles, Ashley J, as I have observed, concluded that s 93(15) of the TAA operated to exclude interest on awards of general damages. In that case, his Honour noted that ss 93(15) and 93(16)[4], and ss 175(1) and 175(2)[5] were the four provisions under the TAA that bore upon the question of interest. His Honour observed that the language and structure of those sections, in many respects, was unsatisfactory and confusing. In general terms, s 175(1) and (2) 'may be said to operate...in circumstances where s 93 does not apply.'[6] His Honour went on to state a number of propositions that he expressed, in a descending order of certainty:

6.1 Both s 93(15) and s 175(1) address damages awards of a particular type only. The award of damages will relate to death or injury to a person in a transport accident.

6.2 The damages awards contemplated by s 93(15) and s 175(1) involve... essentially the common law categories of special and general damages.

6.3 Section 93(15) and s 175(1) are expressed in generally disentitling language. The subsections, by intent, deprive plaintiffs of some potential right to interest that might otherwise be enjoyed.

6.4 The general disentitling language and the existence of s 93(16) and s 175(2) assume the existence of a potential entitlement to interest elsewhere. In the case of the Supreme Court, the entitlement originates in ss 60(1) and 60(3)(b) of the Supreme Court Act 1986.

6.5 Sections 93(16) and 175(2) convey a legislative intent that the relevant existing law on interest entitlements be preserved, save as altered by s 93(15) and s 175(1).

6.6 Where the term 'special damages' is used in s 175(1) it includes of loss of earnings to the date of trial and expenditure actually incurred to the date of trial.

6.7 Section 93 (15) does not refer to special damages (unlike s 175(1)) but refers to 'damages referable to loss actually suffered before the date of the award.' It is reasonable to infer that different language in provisions of a similar nature in the same Act is intended to have a different meaning.

6.8 Notwithstanding this distinction (in (6.7) above), each of s 93(16) and s 175(2) conclude with the words 'other than special damages'.

6.9 Although the words of s 93(15) and s 175(1) do not precisely coincide, any interpretation of s 93(15) should endeavour to give it some real work to do.[7]

6.10 Section 79A(3)(b) and s 79A(1) of the Supreme Court Act authorised an order for interest in a personal injuries claim but not for interest on loss or damage 'to be incurred or suffered' after the date of the award. Over time this provision came to be treated as disentitling a plaintiff to interest on that proportion of the damages that represented compensation for both pain and suffering and loss of enjoyment of life to be suffered after the date of the award and future loss of earning capacity. Thus s 79A(1) was treated as permitting interest only on pre-trial pain and suffering damages and special damages (including past economic loss). When ss 60(1) and 60(3)(c) were enacted, Parliament must be taken to have known the way in which ss 79A(1) and 79(3)(b) were being applied in practice in personal injury damages awards.

6.11 Insofar as the language of s 93(15) is concerned, the last portion of the subsection ('in respect of whom the award is made to date of the award') attaches to the loss earlier identified ('loss actually suffered before the date of the award'). Section 93(15) should be construed discretely to s 175(1) on this aspect.

6.12 Section 93(15) and (16) are counterparts in the same way s 175(1) and (2) are counterparts. Thus, in s 93(16) the words 'other than special damages' are a mirror of s 93(15) 'damages referable to loss actually suffered' even though the words are different. The substance described by the words is identical. Section 93(15) considered alone is broadly disentitling. If the plaintiff's argument (in Eccles) was correct the exception within the 'other than' component of the sentence would give back all that was taken away. That is an improbable outcome.

6.13 Section 93(15) refers to the 'loss actually suffered'. It picked up the words of Fullagar J in Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 at 558 where his Honour, speaking of special damages, referred to 'monetary loss actually suffered and expenditure actually incurred'.

7 Ashley J returned to s 93(16) and the mirror or counterpart argument referred to in paragraph 6.12 of these reasons. His Honour concluded there was a clear correspondence of concepts between s 175(1) and (2). Both used the identical phrase 'special damages' to circumscribe the boundaries of their operation. Whilst the relationship between s 93(15) and (16) is 'not so obvious' it seemed to his Honour 'to be there'. His Honour could discern no reason why s 93(15) and (16) should be contemplating, whether wholly or partly, different types of damages. His Honour commented that the opacity of the legislation meant that his conclusions required 'considerable explanation'. In my view, describing the impugned legislation as opaque is a charitable understatement.

8 His Honour noted that in 1992 replicas of s 93(15) and (16) were introduced into the Accident Compensation Act.

(a) Ashley J's considerable reservations as to the correctness of his reasoning were justified given the 'opacity' of the legislation.

(b) In Oataway,[8] the court considered two claims: One concerning certain implications of s 93(15) of the Transport Accident Act; another concerning the virtually identically worded Accident Compensation Act s 135C(5).

(c) In that case, Batt JA did not confine the exception ('other than damages referable to a loss actually suffered before the date of the award') to special damages. The Court of Appeal determined that interest was also payable on Part III Wrongs Act claims. This conclusion was reached adopting a practical (as opposed to slightly juristic) interpretation of the subject subsections.

(d) The intention of the legislature was to restrict awards of interest to the period before judgment. It was not to confine awards of interest to any particular type of damage (i.e. general or special).

(e) If no fault benefits have been paid before trial, the actual loss prior to trial is to that extent diminished and interest is not payable on that diminution (as was the case in Oataway).

(f) The conclusions in Oataway were logical and gave the provision work to do.

(g) The plain words of the exception 'damages referable to loss actually suffered before the date of the award' do not lend themselves to the narrow special/pecuniary loss damages placed upon them in Eccles. Had the legislation intended to prohibit interest on pain and suffering damages it would have said so in clear and unambiguous language. In both the Transport Accident Act and the Accident Compensation Act pecuniary loss damages and pain and suffering damages are specifically defined.

10 Although it is clear that in certain respects the Court of Appeal in Oataway departed from Eccles, in my view those departures are immaterial to the current controversy - whether the plaintiff can recover interest on pain and suffering damages. In Oataway, Batt JA (with whom Buchanan JA and Vincent JA agreed) concluded that the adjectival exception 'other than damages referable to loss actually suffered before the date of the award' was parenthetic and the main body of the prohibition of payment of interest on damages resumed with the words 'in respect of'. Applying this interpretation the 'commencing date of the death or injury is part of the prohibition of interest (rather than part of the permitting, by way of exception, of the ordering of interest)'[9]. For my part, I do not understand this partial disapproval of Eccles impacts upon the broad proposition that s 93(15) prohibits awards of interest on pain and suffering damages. Further, assuming as I must, that this Oataway 'departure' is correct then that case countenances a more restrictive regime than that countenanced in Eccles. The prohibition extends back to the date of death or injury.

11 In Oataway the respondents contended that the longstanding approach to Wrongs Act claims was that the entire loss crystallizes at the moment of death[10] and urged that this approach be taken when construing s 93(15). Batt JA concluded that to take this approach would render provisions of the legislation otiose or surplus. The effect of the respondent's argument in the Cefai component of Oataway would be that the totality of damages would fall within the exception to the prohibition leaving the prohibition itself otiose. Applying the fundamental principle that "... a court considering a statutory provision must strive to give meaning to every word of the provision", his Honour noted that the right to interest was statutory and not an accrued common law right and so there was no presumption against its removal. His Honour concluded that the subject subsections contemplated that not all damages in a Wrongs Act claim were referable to loss actually suffered at the moment of death or indeed before the award of damages.[11] This was said to follow generally from the terms and structure of the subsections, but particularly from the expression in them 'actually suffered' and from the use in s 94(13) and s 135C(3)[12] of the expression 'damages for future loss.'[13]

12 These considerations, it was said, 'point strongly to a practical as opposed to slightly juristic, interpretation'[14] that embraces the notion of a two-tiered approach to the division of damages. The words 'future loss' are antithetical to the notion of loss crystallizing at death as propounded by East v Breen, Ruby v Marsh and Wright v West Australian Trustee and Agency Co Ltd.[15] His Honour concluded that adopting this two tiered approach excluded Wrongs Act type damages that were predicated on a 'future loss', and it followed that only damages calculated by reference to the period between death and trial can be 'damages referable to loss actually suffered before the date of the award.'[16] The Court of Appeal in Oataway conducted a thorough analysis of Eccles, specifically approving of certain parts, specifically disapproving of others. The general proposition that awards of interest were not available on pain and suffering damages appears to have been left intact, although not specifically addressed. As I have said, I do not believe that in extending the reach of the exception to countenance interest being payable on Part III Wrongs Act claims Oataway has had any impact on the prohibition in relation to pain and suffering damages expressed in Eccles.

13 If I am correct in concluding that Oataway has left Eccles relevantly intact, then in my view I should follow Eccles. This is not just another judgment of a single member of the trial division. It has been followed for 20 years.[17] It is true, as Mr Waugh points out, that the issue of interest on pain and suffering damages has rarely arisen since Eccles because it only becomes controversial in desperately tight circumstances, where a few dollars one way or the other may have a profound influence on costs orders. Notwithstanding this, Beach J in Papadopoulos,[18] in obiter, opined that in his view Eccles was correctly decided, although it seems his Honour heard no argument on the point.

14 Of more importance, in my view, is the legislative history of the impugned provision. This was set out in 2005 in Oataway.[19] The first Act to contain a provision in the terms of s 134AB(34) and (35) was the TAA in ss 93(15) and 93(16). The same Act also contained the very similar ss 175(1) and 175(2). These sections were enacted within two weeks of each other in late 1986/early 1987. Since that time the impugned sentence (with some small changes in punctuation and content) has appeared in the following legislation:

• ACA s 135A(16) and (17). Effective 1 December 1992.
• ACA s 135C(5) and (6). Effective 12 November 1997.
• ACA s 134AB(34) and (35). Effective 20 October 1999.
• Workplace Injury Rehabilitation and Compensation Act 2013 s 346(1) and (2).

15 It follows that since Eccles was decided in 1995 the impugned provision and its companion have been re-enacted on three occasions including in the provisions that I am now considering. There is a principle of statutory construction to the effect that where provisions are re-enacted after judicial decision as to their meaning, it may be presumed that Parliament has adopted that construction. This is not a particularly strong presumption and may be confined to the decisions of superior courts.[20] In Oataway, and in a different context, Batt JA said "[t]he discussion in Pearce & Geddes shows that there is no rigid rule of law on the subject...and that the presumption 'should not lead the court to perpetuate the construction of a statutory provision which it considers to be erroneous.'"[21] Whilst caution must be exercised to avoid perpetuation of error, Parliament now has had three opportunities to reject the Eccles construction which results in plaintiffs being denied awards of interest on pain and suffering damages. It has not done so, and in my view ought be presumed to have adopted that construction.

16 It follows that I am of the view that the plaintiff is not entitled to an award of interest on his pain and suffering damages.

[1] [1995] VicRp 68; [1995] 2 VR 482.

[2] I shall use this term interchangeably with general damages awarded for pain and suffering, loss of amenity, and loss of enjoyment of life.

[4] Transport Accident Act 1986 s 93(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 the 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

S 93(16): Except as provided by subsection (15), nothing in that subsection affects any other law relating to the payment of interest of an amount of damages, other than special damages.

[5] S 175(1): A Court must not, in relation to an award of damages to which the Division applies, order the payment of interest, and no interest shall be payable, on an amount of damages, other than special damages in respect of the period from the date of death of , or injury to, the person in respect of whom the award is made to the date of the award.

S 172(2): Except as provided by this section, nothing in this section affects any law relating to the payment of interest on an amount of damages, other than special damages.

[6] Eccles v Taylor [1995] VicRp 68; [1995] 2 VR 482, 485.

[7] As was done with s 175(1) by Crockett J in Sticca v Jouvelet [1988] VicRp 81; [1988] VR 899 when he concluded special damages included past loss of earnings.

[10] See East v Breen [1975] VicRp 2; [1975] VR 19; Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642 and 646; Wright v West Australian Trustees and Agency Co Ltd [1987] VicRp 63; [1987] VR 771.

[12] Of the Transport Accident Act

[15] East v Breen [1975] VicRp 2; [1975] VR 19; Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642 and 646; Wright v West Australian Trustees and Agency Co Ltd [1987] VicRp 63; [1987] VR 771.

[17] See for example O'Connell v Melbourne Excavations and Demolitions Pty Ltd, Supreme Court of Victoria, 7 March 1997 unreported (Ashley J); Papadopoulos v MC Labour Hire Services Pty Ltd & anor (No.3) [2009] VSC 183.

[18] Papadopoulos v MC Labour Hire Services Pty Ltd and anor (No 3) [2009] VSC 183.

[20] Northrope v City of Hawthorn [1941] VicLawRp 41; [1941] VLR 178.