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: