Williams v Oataway; Onestep Concrete and Pumping & Ors v Cefai [2005] VSCA 137

STATUTES - Interpretation - Avoidance of surplusage - Effect of enactment of almost identical provisions after interpretation by County Court.

Introduction: the legislation

1 These two appeals, which were heard together, raise questions as to the interpretation of very similarly worded provisions precluding, subject to an exception, the payment of interest on damages awarded in proceedings brought under Part III of the Wrongs Act 1958 in accordance with s.93 of the Transport Accident Act 1986 ("the TAA") and s.135C of the Accident Compensation Act 1985 ("the ACA") respectively.

2 Those provisions are contained in sub-s.(15) of the first-mentioned section and sub-s.(5) of the second-mentioned. Each sub-section must be read with the one that follows it. In the case of the TAA they read:

"(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[1] date of the award.

(16) Except as provided in sub-section (15), nothing in that sub-section affects any other law relating to the payment of interest on an amount of damages, other than special damages."

3 Sub-section (5) of s.135C of the ACA is in the same terms as sub-s.(15) set out above except that it does not include the words "or injury to" and except for immaterial phraseological differences of having "is payable" and "any amount" instead of "shall be payable" and "an amount" and of having a pointless comma after the word "made". Sub-section (6) of s.135C is in the same terms as sub-s.(16) set out above except that the cross reference is to sub-s.(5) and except for the use of "any" before "amount". As will be observed, only the section of the TAA deals with claims for damages for personal injuries as well as claims under Part III of the Wrongs Act, for s.135C of the ACA is wholly confined to claims of the latter kind.[2]

The facts: Williams v. Oataway

4 A brief statement of the facts of each appeal is necessary in order to expose the questions of interpretation they raise. The respondent to the first appeal, Suzanne Oataway, by writ filed in the County Court at Melbourne on 31 August 2000, commenced as plaintiff[3] a proceeding (on her own behalf and on behalf of three named children of her deceased husband) against the appellant Colin Williams as defendant, claiming damages pursuant to Part III of the Wrongs Act 1958. (There was also a small claim on behalf of the deceased's estate.) The claims arose from the death on 6 May 1998 of the respondent's husband, who died as a result of injuries suffered in a transport accident occurring on that day. The appellant admitted negligence. The proceeding was tried before a County Court judge and a jury. The jury assessed damages in the sum of $360,000.

5 The respondent sought judgment in that sum together with interest on the whole of the judgment less statutory compensation payments totalling $197,462.22 which had been made to the respondent and the children pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), the deceased having been employed at the date of his death by the Australian Postal Corporation. Interest on that sum was sought from the date of the deceased's death. The appellant, on the other hand, submitted that, by reason of the operation of s.93(15) of the TAA, interest should only be awarded on "damages referable to loss actually suffered before the date of the award" and then only from the date of the commencement of the proceeding, 31 August 2000. He further submitted that, because the dependants had actually been in receipt of compensation payments, no loss was actually suffered before the date of the award and accordingly no interest should be ordered to be paid.

6 His Honour accepted the respondent's contentions that the exception in s.93(15) applied and that interest was payable under it from the date of the deceased's death. Interest was calculated at $84,519.65 and his Honour gave judgment for the plaintiff in the sum of $444,519.65, being the total damages of the dependants of the deceased assessed by the jury in the sum of $360,000, together with interest by way of damages in the sum of $84,519.65. The judgment went on to apportion the damages between the widow and the dependent children and to provide that the judgment sum be paid pursuant to s.50(7) of the above-mentioned Commonwealth Act to the Australian Postal Corporation as licensed authority pursuant to that Act and be dealt with by it in accordance with the provisions of the Act and the law. The appellant challenges both aspects of his Honour's ruling.

The facts: Onestep Concrete & Pumping Pty. Ltd. & Ors. v. Cefai

7 The respondent to the second appeal, Helen Cefai, by writ filed in the Trial Division on 1 June 1999 commenced as plaintiff a proceeding (on her own behalf and on behalf of five named children of her deceased husband) against the four appellant companies as defendants, claiming damages pursuant to Part III of the Wrongs Act 1958 arising out of the death on 19 March 1999 of her husband William Cefai[4], who was electrocuted while engaged in the work of pumping concrete. (There was also a claim for funeral expenses.) By their amended defence the appellants admitted that at all material times the deceased worked, or was deemed to be working, under a contract of service with the first appellant and was thereby a "worker" within the ACA; that he died on 19 March 1999 in circumstances in which the appellants jointly and severally were liable to the respondent in the sum of $574,200, being the indexed[5] maximum sum payable under s.135C(2) of that Act, together with interest calculated according to law as limited by s.135C(5).

8 The only issue for determination by the primary judge concerned the quantum of interest as limited by s.135C(5). The respondent contended that the sub-section permitted her to recover interest from the date of the writ on the total sum awarded as damages pursuant to Part III of the Wrongs Act because damage in the total sum was suffered at the date of death. On the other hand, the appellants contended that the sub-section permitted interest to be awarded only on the amount of damages referable to loss actually suffered before the date of the award and that that amount was $175,000. (It was agreed between the parties that the amount of $175,000 would be the amount of loss which would notionally have accrued, evenly, between the date of death and the date of the award in the event that all, or substantially all, of the amount of $574,200 was not to be regarded as having accrued at the date of death.)

9 The primary judge gave judgment upholding the respondent's contentions that interest was payable on the total sum awarded for damages and that it was payable at the penalty interest rate. In accordance with his Honour's decision, the parties calculated interest at $253,676. The appellants challenged his Honour's decision that interest was payable on the total sum awarded for damages.

Some legislative history

10 It is convenient to begin by noting the order and terms in which the subject provisions and identical or very similar provisions in the two Acts were enacted. The first Act to contain such a provision was the TAA. Sub-sections (15) and (16) of s.93 have already been set out. But the same Act also contained when enacted a section, s.175, consisting of similar, but not identical, sub-sections to s.93(15) and (16).[6] The section was, and still is, in Div.3 of Part 10. That Part relates to accidents before the commencement on 1 January 1987 of the statutory scheme of compensation for transport accidents and, by s.172, Div.3 applied to and in respect of an award of damages made after the commencement on 16 December 1986 of that section relating to the death of or bodily injury to any person caused by or arising out of the use of a motor car if the whole or part of the award was payable by the Transport Accident Commission, an authorised insurer, the Incorporated Nominal Defendant or the owner or driver of an uninsured motor car. Section 175 provided:

"(1) A court must not, in relation to an award of damages to which this 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 the death of or injury to the person in respect of whom the award is made to the date of the award.

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

It will immediately be seen that a different expression, namely, "special damages" follows the words "other than" in sub-s.(1) and that there is no comma after that expression. As with s.93(16), that expression is used, in this case naturally, in sub-s.(2).

11 In the consideration in Committee of the Bill which became the TAA the Treasurer and the chief speakers for the Opposition and the National Party referred to the principles that had been agreed between their respective parties on "Third Party Reform" and in particular to paragraph 12, which listed agreed principles that would apply to pending and new common law claims, the third of which was: "Restrictions of awards of interest on judgment sums in relation to the period before judgment". That principle is not unambiguous. On one view of the provisions discussed in these reasons, it would read more accurately if the first word were singular and the words "in relation" were omitted. On the other hand, it may be that "the period before judgment" was used in contradistinction to the period after the entry or giving of judgment, during which interest runs pursuant to s.101 of the Supreme Court Act 1986. But apart from these doubts, there is a question whether the agreed principle was to apply in respect of claims under Part III of the Wrongs Act. They are dealt with in paragraph 13 of the Agreed Principles, but there is no mention of interest in that paragraph.

12 Although the ACA was enacted and commenced earlier than the TAA it did not contain the subject, or any similar, provisions until they were introduced by amendments. The first relevant amendment was the substitution by s.46(3) of the Accident Compensation (WorkCover) Act 1992, with effect from 1 December 1992, of a new s.135A containing as sub-ss.(16) and (17) provisions differing only immaterially from s.135C(5) and (6)[7], save for the inclusion of the words "or injury to" after the words "the death of". For what it may be worth, a comma follows the expression "before the date of the award", as is the case in the two sub-sections directly in question in these appeals. (The explanation for the presence of the words "or injury to" is that s.135A applied to and permitted (though subject to stringent conditions and significant limitations) both common law claims by workers for employment-related personal injuries and claims by their dependants under Part III of the Wrongs Act.) The next relevant amendment was the insertion of s.135C by s.49 of the Accident Compensation (Miscellaneous Amendment) Act 1997 with effect from 12 November 1997. The terms of its immediately relevant provisions, sub-ss.(5) and (6), have already been summarised. In addition to those sub-sections, s.135C in broad terms "capped" the amount of damages recoverable under Part III of the Wrongs Act, prescribed a discount rate of 3 per cent for future loss referable to certain enumerated categories and provided for the amount of any judgment or settlement in favour of a dependant of a worker to be reduced by the sum of any compensation paid. At the same time s.134A was inserted, precluding the recovery of any damages of any kind by a worker, or a worker's dependants, entitled to compensation in respect of an employment-related injury occurring on or after 12 November 1997. Section 135C did, however, permit dependants of workers to recover damages under Part III of the Wrongs Act, but subject to the restrictions it contained. It is because s.135C was required for permitting and regulating proceedings under Part III of the Wrongs Act at a time when common law claims by workers were prohibited that sub-s.(5) contains no reference to injury. The final amendment for present purposes was the lifting of the prohibition by s.134A of common law claims (though with more detailed and stringent restrictions than those applying before 12 November 1997) with respect to injuries on and after 20 October 1999 by the insertion of s.134AB by the Accident Compensation (Common Law and Benefits) Act 2000 with effect from 20 October 1999. That new section contained in sub-ss.(34) and (35) provisions differing from s.135C(5) and (6) only immaterially[8] save for the necessary inclusion in sub-s.(34) of the words "or injury to". Again, it may be observed that a comma follows the words "before the date of the award" in sub-s.(34).

Date on which permissible interest commences

13 On the two questions raised by these appeals I have closely considered the reasons for judgment of each of the primary judges and the written and oral submissions of all parties. It is not, however, necessary to deal with every argument or consideration raised. Rather, I shall state my own reasons and conclusions, adverting only to what seem to me to be points of substance against the conclusion to which I have come.

14 It is convenient to begin with the question that is in issue in the Oataway case only**,** that is, the date from which interest falling within the expression "other than ... before the date of the award" commences or at any rate may commence. Now, s.93(15) is a prohibition on the payment of interest on damages, subject to an exception constituted by the expression commencing "other than". It assumes, or postulates, an entitlement to, or to seek, interest that is conferred elsewhere, that is, in the applicable circumstances, by some other statute. For present purposes the entitlement is conferred by s.60 of the Supreme Court Act. By sub-s.(1) of that section, unless good cause is shown to the contrary, damages in the nature of interest runs from the commencement of the proceeding. Section 93(15) does not purport, even impliedly, to amend s.60(1) or to confer an entitlement to interest that runs from the date of death or injury. Nor, I think, does s.93(16). More generally, a mere prohibition, albeit qualified by an exception, does not confer or grant rights or entitlements. I am therefore of the opinion that any interest that sub-s.(15) permits to be paid on an amount of damages does not run from the date of the death of the person in respect of whom the award is made, but only from the commencement of the proceeding. As will be seen, in arriving at that conclusion I agree with the views expressed by Ashley, J. in Eccles v. Taylor[9].

15 There is, however, as it appears to me, the following additional reason for the opinion I have expressed. To my mind, the obvious natural reading of sub-s.(15) is that the adjectival exception "other than damages referable to loss actually suffered before the date of the award" is parenthetic (as the commas around it make clear) and that the main body of the prohibition of payment of interest on an amount of damages resumes with the words "in respect of" and prohibits payment of interest in respect of the period from the date of death or injury to the date of the award, being the award of damages referred to at the commencement of the sub-section. In other words, out of caution, the prohibition is made to operate over a longer period than that for which on presently relevant legislation interest could be awarded. On 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), and so the less likely will be an implied grant of an entitlement to interest from one or other of those dates. On this point I respectfully differ from the interpretation adopted by Ashley, J. in Eccles v. Taylor[10].

16 In the last paragraph I have placed some reliance on punctuation. The punctuation in sub-s.(15) does not form part of the Act as neither requirement in s.36(3B) of the Interpretation of Legislation Act 1984 is satisfied. (That is true, too, of the punctuation in the several largely similar provisions of the ACA already discussed.) Nevertheless, in interpreting sub-s.(15), consideration may, by reason of s.35(b) of the Interpretation of Legislation Act, be given to punctuation.

17 It seems to me that the only argument of any weight that can be advanced against what I have called the natural reading of sub-s.(15) is one based on the absence of a comma in the corresponding provision of the contemporaneous s.175(1). It would be argued that the presence of the comma in s.93(15) was erroneous, as shown by s.175(1). However, the reverse can equally be said of the absence of a comma at the relevant point in s.175(1), which, in addition, with its use of "special damages", is a difficult provision.[11] There is, then, no real justification for reading s.93(15) by reference to another provision, s.175. Moreover, the presence of a comma at the corresponding point in the three closely similar provisions of the ACA discussed earlier strongly suggests that Parliament later understood the punctuation of s.93(15) to be correct and the sub-section to have the meaning I have indicated, though I acknowledge that that may not be a very powerful aid to interpretation. Although one would expect that two provisions in the same Act in very similar language would structurally be the same, it is possible to read s.175(1) as it is punctuated. That is, it can be read as permitting payment of interest on special damages incurred in respect of the period from the date of death or injury to the date of award. (The damages could be suffered in that longer period, though the interest could, under s.60(1) of the Supreme Court Act, only run from the date of commencement of the proceeding.) But the expression "in respect of" is by no means natural on that interpretation, and it would be quite sufficient to refer simply to special damages. Thus, I favour giving the same interpretation to s.175(1) as I would give to s.93(15).

What damages are "referable to loss actually suffered before the date of the award"

18 In the Cefai case the primary judge summarised certain longstanding features of the law[12] in relation to Wrongs Act claims, being features which existed before the 1997 amendments to the ACA that included s.135C(5) and (6). The summary was substantially as follows:

• the loss suffered by the claimants is the loss of the expectation of future pecuniary benefit or benefit reducible to a money value;

• the whole of that loss is regarded in law as having occurred at the moment of death;

• a two-tiered approach has for many years been taken in the assessment of damages for such loss by looking first at the period between death and trial and then at the future as it appears at the time of trial[13];

• notwithstanding that process of assessment, no part of the loss is regarded as being incurred in the future although to assess it an enquiry as to the future has to be made.

Relying on those features and in particular the second of them, the respondents submitted that the whole of an award of damages in a proceeding under Part III of the Wrongs Act constituted "damages referable to loss actually suffered before the date of the award" within the exception to the prohibition in s.93(15) of the TAA and s.135C(5) of the ACA. It was, however, submitted that the phrase might sensibly be interpreted to mean that any benefit consequent upon the death which had been received by the dependants between the date of death and the date of the award must be brought into account. Reliance was also placed by both respondents, though it would seem only directly available to the respondent in the Cefai matter, upon the enactment in s.135C(5) and (6) of the ACA of provisions in terms virtually identical to those of s.135A that had been construed by two County Court judges as permitting the award of interest on the total amount of damages in a Wrongs Act claim and also in terms virtually identical to those of s.93 of the TAA that had been construed in the same way by the County Court judge in Oataway. This showed, it was submitted, that Parliament was content to adopt in s.135C the construction arrived at by the County Court judges.

19 Were it not for the consideration about to be mentioned, these arguments (and more particularly the one based on the time when the loss suffered by a claimant under the Wrongs Act occurs) would, I consider, lead to the conclusion arrived at by the primary judges. The difficulty, however, for the respondents is that their arguments render provisions of the legislation otiose or surplusage, meaning that Parliament has enacted words in one case, and a whole sub-section in the other, to no effect. In the Oataway case, on my analysis[14] of s.93(15) of the TAA the respondents' interpretation makes the words "death of or" surplusage.[15] On the respondents' argument the prohibition in sub-s.(15), as opposed to the exception to it, operates only in the case of personal injury claims. In the Cefai matter the position is stronger, indeed startling. For, as already explained, s.135C is concerned only with proceedings under Part III of the Wrongs Act and the effect of the respondents' argument is that, since the whole of the loss suffered by the dependants occurs at the moment of death, all damages for such losses are "damages referable to loss actually suffered before the date of the award" of damages. In other words, all the damages awardable in such proceedings fall within the exception commencing "other than" and may thus bear interest, and there are no damages to which the primary, prohibitory, part of the sub-section can apply. The exception overruns the main provision.

20 The respondents' construction offends the well-known, indeed fundamental, principle re-stated by McHugh, Gummow, Kirby and Hayne, JJ. in Project Blue Sky Inc. v. Australian Broadcasting Authority[16] as follows:

"... [A] court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.'"

See also The Shell Co. of Aust. Ltd. v. City of Melbourne[17]; Pearce & Geddes, Statutory Interpretation in Australia[18]; and Bennion_, Statutory Interpretation_[19]. Although in the textbooks cited examples can be found where it was not possible to give a meaning to every word or where in order to effectuate the clear object of the Act in question it was necessary to treat an expression as surplusage, the rule that every word of a provision and every provision should be given meaning (or, in other words, the presumption against surplusage) seems to me to be of a higher order than the presumption from re-enactment relied on by the respondents. The discussion in Pearce & Geddes[20] shows that there is no rigid rule of law on the subject of re-enactment after judicial interpretation and that the presumption "should not lead the Court to perpetuate the construction of a statutory provision which it considers to be erroneous".[21] Here, I consider the construction adopted by the County Court judges to be erroneous. I would add, as regards the status of decisions of the County Court for the purpose of the presumption, that the primary judge in the Cefai case would appear to have been bound by the distinct decision of the majority of the Full Court in Northrope v. City of Hawthorn[22] that the presumption is limited to decisions of superior courts, even though their decision was disapproved in a brief passage in the judgment of Young, A.J.A. in Minister v. Carson[23]. The seminal statement of the presumption by W.M. James, L.J. in Ex Parte Campbell[24] spoke in terms of "Superior Courts". The respondents also invoked the presumptions against the taking away of accrued rights and common law rights. The short answer is that interest is, relevantly, a creature of statute and that no right to it had accrued.

21 In answer to the objection that their construction by way of direct application of the principle adopted by the majority in Ruby v. Marsh led to surplusage, the respondents contended that the words of exception did have work to do in deducting (that is, excluding) from the damages on which interest was payable the amount of no fault compensation that had been received, because to the extent of that amount a loss had not been "actually suffered". In the case of the ACA that argument is unsustainable because ss.135A, 135C and 134AB have from the time when they were respectively originally enacted included provisions[25] expressly providing for reduction of the amount of the judgment, order for damages, settlement or compromise by the amount of relevant compensation (if any) paid. In the case of the TAA, s.93(11) as originally enacted provided that the court should order the payment to the Transport Accident Commission, in the case of damages awarded under Part III of the Wrongs Act, of such part of the damages as was equal to the payments made by the Commission in respect of the death. That, on its face at least, left the quantum of damages intact for the purpose of calculation of interest. It was not until 1 January 1995 that the Transport Accident (General Amendment) Act 1994 inserted sub-s.(11A) into s.93, thereby providing directly for the reduction of damages in a Wrongs Act claim by the amount of compensation paid under the TAA or a compensation scheme referred to in s.37.[26] So at the time of the Oataway proceeding the exception in s.93(15) had little work to do. The suggested work to be done by the expression in the case of a Wrongs Act claim is minimal in the scheme of things.

22 The question then arises whether there is any construction of s.93(15) of the TAA and s.135C(5) of the ACA that avoids making the reference to death in the former and the whole of the latter surplusage which is reasonably open. In my opinion, there is. The subject sub-sections clearly contemplate that not all damages awarded in a Wrongs Act claim are referable to loss actually suffered before the date of the award of damages or, to put the matter another way, clearly contemplate that some of the loss suffered by claimants under the Wrongs Act accrues or occurs after the death of the person in respect of whom the award of damages is made. This follows generally from the terms and structure of the sub-sections, but particularly from the expression in them "actually[27] suffered" and from the use in an earlier sub-section[28] of the expression "damages for future loss" (especially when taken with the expression "referable to ... loss of the expectation of financial support") as well as the later reference in the sub-section to "future loss". These considerations point strongly to a practical, as opposed to a strictly juristic, interpretation[29] of the subject sub-sections by way of understanding them to adopt the division of the damages in a Wrongs Act claim used for the purposes of computation under the two-tiered approach. The words "future loss" are quite antithetical to the received doctrine stated in the cases cited earlier.[30] Further, the subject sub-sections evince a clear intention on the part of the legislature to enact an effective general prohibition of the ordering of interest on the damages awarded in Wrongs Act claims, subject to a specific exception. One would expect the exception to operate in a smaller area than the prohibition. The achievement of the legislature's intention requires the practical, two-tiered, understanding of the damages. This is, in my opinion, the correct approach to the subject sub-sections, but it means 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".

23 Before stating my conclusions in the two appeals, I make three further comments on the question of construction for the sake of completeness. First, like Ashley, J. in Eccles v. Taylor[31], I have not derived any real assistance in the interpretation of s.93(15) of the TAA and s.135C(5) of the ACA from the sub-sections that go with them, s.93(16) and s.105C(6) respectively. The latter sub-sections have their own uncertainties of interpretation. On one view they state a truism and seemingly were enacted out of an abundance of caution.[32] But there are questions whether the last four words are merely adjectival or themselves state an exception and why the concept of "special damages" is used. Those questions, in the case of the TAA, lead to a consideration of the similar, but not identical, s.175 and whether its two sub-sections throw any light on s.93(15) and (16). But, again somewhat like Ashley, J. in Eccles v. Taylor[33], I have also found interpretation of s.175 of the TAA too uncertain to give any real assistance in the interpretation of s.93(15) and s.135C(5), though I have had to consider one possible argument based on it.[34] Secondly, the court was taken to no extrinsic material which cast light on the provisions discussed in the first observation. Thirdly, the cases on s.79A(3)(b) of the Supreme Court Act 1958 and s.60(3)(b) of the Supreme Court Act 1986 are distinguishable because the interpretation accorded to those provisions did not result in some other provision's being surplusage.

Conclusion

24 It follows, in my opinion, that in the Oataway case no interest should have been awarded because, the respondent and the children having received compensation payments under the Commonwealth Act and no point being taken about the short time lag presumably involved in payment of the compensation, no loss was actually suffered before the date of the award of damages. Paragraph 1 of the County Court judgment will require to be varied by the omission of all words relating to interest by way of damages**.** I understood Mr. Beach to seek repayment with interest on the amount of interest, which, I also understood, had been paid. The appellant is entitled to re-payment of the amount of interest together with simple interest thereon at 7 per cent per annum from the date of payment to the Australian Postal Corporation until the date of re-payment.[35] Although the County Court judgment properly ordered payment of the judgment sum to the Australian Postal Corporation, I take it that it will be sufficient to order re-payment by the respondent. However, in case there are difficulties, I would reserve liberty to apply to the Court of Appeal in relation to the re-payment to enable the Australian Postal Corporation to be added as a respondent and ordered to make re-payment.

25 In the Cefai case, in my opinion, the agreement referred to in paragraph [8] above means that it will be necessary to calculate interest on $175,000 from 1 July 1999 to 5 June 2003 and to substitute that figure in paragraph 1 of the authenticated judgment in the Trial Division. It will also be necessary to apportion the reduced judgment sum in paragraph 2 of the judgment and in the orders for payment to the Senior Master and investment by him in respect of each of the dependent children of the deceased. Finally, it will be necessary to order re-payment to the appellants by the respondent and Frank Lawrence Cefai and (on the assumption that the Senior

Master has already paid out the capital sum and interest to the child, Sharlene Cefai, who attained 18 years of age on 11 January this year) by Sharlene Cefai of their respective shares of the overpaid interest on damages, together, in the case of the respondent, with simple interest from date of payment to date of re-payment at 7 per cent per annum and, in the case of Frank Lawrence Cefai and Sharlene Cefai, with the interest accrued on that excess (calculated, I suggest, proportionally). Interest earned since payment out can, one would hope, be disregarded as minimal. In respect of the other dependants, the overpaid interest should be ordered to be paid out by the Senior Master with accrued interest to the appellants. The court does not have the necessary information to make the calculations mentioned. It will be necessary to afford the parties a brief time to agree on the various figures or, failing that, to submit succinct written memoranda of rival calculations, and to list the matter for mention again.

26 I would therefore allow both appeals and make orders along the lines indicated, but would hear counsel as to their precise form.

27 I agree with Batt, J.A., for the reasons he has stated, that both appeals should be allowed and orders made as his Honour proposes.

28 I agree in the disposition of these matters proposed by Batt, J.A. I do so for the reasons advanced by him in his judgment.

[1] This word was inserted by s.14(b) of the Transport Accident Amendment Act 1998. It has been in s.135C(5) of the ACA from its commencement, but is not in the similar s.134AB(34) or s.135A(16) of that Act.

[2] As discussed more fully in paragraph [12] below.

[3] It appears from the written submissions for the respondent that the proceeding was in fact a recovery action brought by the Commonwealth in the widow's name under s.50(1) of the Commonwealth Act mentioned in para.[5]. The County Court was therefore exercising federal jurisdiction, as is this Court.

[4] This is the name pleaded by the respondent and admitted by the appellants. The summary for this Court and the judgment below, however, name the respondent's husband as Frank Lawrence Cefai. This appears to me to arise from a misreading of the expression "the children of the deceased Frank Lawrence Cefai," in the particulars pursuant to s.21 of the Wrongs Act, where the person named is in fact the first born child of the deceased and the word "deceased" should have been followed by a comma.

[5] Pursuant to s.100.

[6] Unlike s.175 (which was in the Bill introduced as s.166) s.93 came into the legislation by an agreed amendment moved in Committee (Parliamentary Debates, Victoria - Legislative Assembly, 3 December 1986, 2702-2704.) The s.93 contained in the Bill would have prohibited, subject to certain exceptions, the recovery of any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident.

[7] In sub-s.(16) "shall be payable" appears instead of "is payable" and there is no article before the word "date" where last appearing. In the opening exception in sub-s.(17) "by" is used instead of "in" and there is, naturally, a different sub-section number referred to.

[8] Except for the sub-section number referred to in sub-s.(35), sub-ss.(34) and (35) are in the same terms as s.135A(16) and (17), whose differences from s.135C(5) and (6) have already been noted.

[9] [1995] VicRp 68; [1995] 2 V.R. 482 at 484, 491 and 493.

[10] At 490. The view that the words "in respect of the period ... to the date of the award" qualify the expression "loss actually suffered" faces the objection that it effectively makes the words "before the date of the award" otiose or surplusage. That important consideration is discussed later with reference to a different expression. Alternatively, it may give rise to an inconsistency. See fn.[15].

[11] See further para.[23] below.

[12] East v. Breen [1975] VicRp 2; [1975] V.R. 19 esp. at 22, where the trial judge's statement, "in a claim under Part III of the Wrongs Act 1958 the whole of the loss suffered by the claimant dependants of the deceased must be treated as having occurred at the moment of death", which was expressly approved by Barwick, C.J. in Ruby v. Marsh Ruby [1975] HCA 32; (1975) 132 C.L.R. 642 at 646, is set out; Ruby v. Marsh esp. at 646, 657-8 and 657; and Wright v. West Australian Trustee & Agency Co. Ltd. [1987] VicRp 63; [1987] V.R. 771.

[13] See also Evans v. Anderson [1992] VicRp 28; [1992] 1 V.R. 411 esp. at 419.

[14] Whereby the final words of the sub-section commencing with the expression "in respect of" follow on from the words "on an amount of damages", the intervening words being parenthetic. See para.[15] above.

[15] On the analysis espoused by Ashley, J. the words "before the date of the award" become surplusage or there is an inconsistency between those words and the words "to the date of the award" (which might include that date).

[16] [1998] HCA 28; (1998) 194 C.L.R. 355 at 382[71] (footnotes omitted).

[17] [1997] 2 V.R. 615 at 641 and 643.

[18] 5th edn., para.[2.22].

[19] 4th edn., 993-994.

[20] Op. cit., paras.[3.39] to [3.45].

[21] Salvation Army (Vic.) Property Trust v. Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 C.L.R. 159 at 174 per Dixon, Williams and Webb, JJ.

[22] [1941] VicLawRp 41; [1941] V.L.R. 178.

[23] (1994) 35 N.S.W.L.R. 342 at 363.

[24] (1870) L.R. 5 Ch.App. 703 at 706.

[25] Sections 135A(11), 135C(7) and 134AB(25).

[26] This included a scheme under a Commonwealth Act corresponding to the ACA. Because the proceeding in the Oataway matter was a recovery action against the tortfeasor, sub-s.(11A) was not applied.

[27] That is, in fact, as opposed to theory.

[28] In the TAA, s.93(13), and in the ACA, s.135C(3).

[29] Compare the approach of Stephen, J. and Jacobs, J. in dissent in Ruby v. Marsh at 662 and 667-8 respectively.

[30] In fn.12.

[31] At 485 and 492.

[32] The sections contain other instances of pairs of sub-sections to the second of which the remarks in the text seem applicable. See, for instance, s.93(13) and (14) of the TAA and s.135C(3) and (4) of the ACA.

[33] At 485, 490 and 492.

[34] In para.[17] above.

[35] Meerkin & Apel v. Rossett (No.2) [1999] VSCA 10; [1999] 2 V.R. 31.