In motor accident claims under the Motor Accidents Act 1988 (NSW), the Gogic reduced interest rate (approximately 4%) applies to non-economic loss damages under s 79, not commercial rates, and s 73(2) confers a discretion exercisable by reference to the defendant's default rather than an automatic entitlement.
Later decisions that cite Andjelic v Marsland
Decisions cited by Andjelic v Marsland
NIKOLA ANDJELIC v STUART MARSLAND, BY HIS TUTOR, THE PROTECTIVE COMMISSIONER
OF NEW SOUTH WALES
F.C. 96/011
Number of pages - 24
Interest
(1996) 186 CLR 20
HIGH COURT OF AUSTRALIA
BRENNAN CJ(1), DAWSON(1), TOOHEY(1), GAUDRON(1), McHUGH(2) AND GUMMOW(2) JJ
CATCHWORDS
Interest - Power to order interest under s 73 of Motor Accidents Act 1988 (NSW) - Damages awarded for non-economic loss under s 79 of Act - Difference between damages under s 79 of Act and common law damages for non-economic loss - Whether commercial interest rates apply.
Interest - Non-economic loss - Injury suffered before s 79 of Motor
Accidents Act 1988 (NSW) came into force - Increase in maximum allowable
damages - Date from which interest calculated.
Motor Accidents Act 1988 (NSW), ss 5, 6, 7, 68, 73, 79, 80, 138 and 146.
Motor Accidents (Amendment) Act 1989 (NSW).
Supreme Court Act 1970 (NSW), s 94.
17:4:1996
ORDER
1. Appeal allowed.Court of Appeal.
2. Set aside paragraphs 4 and 8(ii) of the order of the New South Wales
DECISION
BRENNAN CJ, DAWSON, TOOHEY AND GAUDRON JJ. The facts are set out in the judgment of McHugh and Gummow JJ. It is in the context of those facts that a question arises as to the nature of the power to "order the payment of interest" conferred by s 73(2) of the Motor Accidents Act 1988 (NSW) ("the Act"). The combined effect of the arguments put in this Court and a condition attached to the grant of special leave to appeal (1) is to confine that question to the power to order interest on damages awarded under s 79 of the Act for non-economic loss. However, s 73 does not distinguish between that and other heads of damage.
2. It is common ground that the outcome of this appeal depends on the
provisions of Pt 6 of the Act as it stood when the matter
was considered by
the New South Wales Court of Appeal. The relevant provisions of s 73 were
then as follows:
"(1) Except as provided by this section, a court shall not, inrelation to an award of damages, order the payment of interest, and no interest shall be payable, on an amount of damages in respect of the period from the date of the ... injury to the person in respect of whom the award is made to the date of the award.
(2) A court may order the payment of interest-reasonable and appropriate to assess the merits of the plaintiff's claim and liability of the defendant in respect of the claim; or
(a) if the defendant has not taken such steps (if any) as may be
(b) if, where it would be appropriate to do so, the defendant hasnot made an offer of settlement; or
(c) if -interest) is more than 20 per cent higher than the highest amount offered in settlement by the defendant; and
(i) the defendant has made an offer of settlement; and
(ii) the amount awarded by the court (without the addition of
(iii) the court is satisfied that the highest amount offered bythe defendant was not reasonable having regard to the information available to the defendant at the time the offer was made.
...
(5) Except as provided by this section, nothing in this sectionaffects any other law relating to the payment of interest on an amount of damages."
3. The Court of Appeal allowed interest on the damages awarded under s 79 in
the present case at Supreme Court rates which were
equal to, or approximated,
the commercial rates prevailing from time to time (2). The appellant contends
that commercial interest
rates should not have been allowed because the effect
of s 73(5) is to subject interest on damages awarded under s 79 of the Act
to
the rule adopted in MBP (SA) Pty Ltd v Gogic (3) with respect to the pre-trial
component of common law damages for non-economic
loss. In that case, the
reason for allowing interest was identified as the "depriv(ation) of the use
(by a plaintiff) of his or
her money", not the fact that "he or she has
forgone investment opportunities" (4). It was held that, because "(d)amages
for pre-trial
non-economic loss ... are assessed in accordance with the value
of money as at the time of the award" (5), a plaintiff does not suffer
loss by
reason of inflationary factors and, accordingly, interest should not be
calculated at commercial rates but at a rate, somewhat
arbitrarily fixed at 4%
(6), reflecting "the difference between the prevailing rate for secure
investments and the rate of inflation"
(7).
4. To the extent that damages payable under the Act can fairly be equated
with damages at common law or some head of common law
damages, s 73(5) is apt
to pick up and apply the law as it relates to interest on common law damages.
At least that is so in the
absence of some other and more specific provision
in the Act. There are, however, difficulties in equating common law damages
for
non-economic loss with damages awarded under s 79 of the Act.
5. At all relevant times s 79 has provided:
"(1) No damages shall be awarded for the non-economic loss of aninjured person as a consequence of a motor accident unless the injured person's ability to lead a normal life is significantly impaired by the injury suffered in the accident.
(2) The amount of damages to be awarded for non-economic lossshall be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.
(3) The maximum amount which may be awarded for non-economic lossis $180,000, but the maximum amount shall be awarded only in a most extreme case.
(4) If the amount of non-economic loss is assessed to be $15,000or less, no damages for non-economic loss shall be awarded.
(5) If the amount of damages to be awarded for non-economic lossin accordance with subsections (1)-(3) is more than $15,000 but less than $55,000, the following deductions shall be made from that amount:
(a) if the amount of damages is less than $40,000 - the amount tobe deducted is $15,000;
(b) if the amount of damages is not less than $40,000 - the amountto be deducted is $15,000, or $15,000 reduced by $1,000 for every $1,000 by which the amount of damages exceeds $40,000."
6. The majority in the Court of Appeal distinguished between damages under s
79 and common law damages for non-economic loss on
the basis that s 79 imposes
"arbitrary and artificial" limits and, hence, damages awarded under that
section "can hardly be said
to be ascertained in terms of the money value of
the time of judgment" (8). That, however, is a distinction that is not
entirely
justified. Pursuant to s 80 of the Act, the amounts specified in s 79
are effectively adjusted in October of each year "by the percentage
change in
the amounts estimated by the Australian Statistician of the average weekly
total earnings of full-time adults in New South
Wales over the (preceding) 4
quarters" (9). Thus an index of inflation is applied to arrive at an annual
increase in the maximum
amount that can be awarded for non-economic loss.
7. Section 79 is expressed in terms of damages for "non-economic loss", which
is defined in s 68 of the Act to comprehend the various
matters which are
taken into account in the assessment of common law damages for non-economic
loss, namely, pain and suffering, loss
of amenities of life, loss of
expectation of life, and disfigurement. However, there is a fundamental
difference between common
law damages for non-economic loss and damages
awarded under s 79. Section 79 is not concerned with compensating for the
various
matters comprehended in the definition of "non-economic loss".
Rather, it operates to provide a measure of compensation for significant
impairment of the ability to lead a normal life when that impairment results
from one or more of those matters. And it provides
a measure of compensation
that cannot in any relevant sense be equated with common law damages: not
only is there a ceiling on the
highest amount that can be awarded, but the
effect of sub-ss (4) and (5) of s 79 is that, in cases at the lower end of the
scale,
damages are either reduced or are simply not available.
8. The limits set by s 79 serve to distinguish the damages payable under that
section from common law damages for non-economic loss
in another important
respect. They quantify the maximum and minimum that may be awarded at any
given time and do so in a context
where an individual's entitlement is,
subject to those limits, to be assessed on the basis of the proportional
severity of his or
her loss to that of a most extreme case. Although there
may be subjective elements involved in questions of proportional severity,
s
79 is concerned to quantify compensation by reference to fixed limits,
excluding awards of damages as they are ordinarily understood.
The reason for
restricting interest on damages for non-economic loss as stated in Gogic (10)
has no application to compensation
quantified in accordance with s 79. An
amount calculated in accordance with s 79 is not an assessment of common law
damages awarded
to a plaintiff as full compensation for the loss caused by the
defendant's tort. In the case of damages for personal injury, a plaintiff
is
kept out of the damages assessed under the various headings from the date of
injury until the date of judgment. Therefore interest
can be awarded from the
date of injury to the date of judgment but, as Gogic (11) held, as damages for
non-economic loss are assessed
in the "dollars of the day" as at the date of
judgment, the rate cannot reflect that component of interest which is
attributable
to the inflation that has occurred between the date of injury and
the date of judgment. On the other hand, if those damages were
assessed in
the "dollars of the day" as at the date of injury or as at a date between the
date of injury and the date of judgment,
it would be permissible to allow
interest at a full commercial rate.
9. It is necessary to determine the date from which interest might be allowed
on an award under s 73 in respect of non-economic
loss. Mahoney JA in the
Court of Appeal was of the opinion that s 73(2) was intended to allow an award
of interest "only if and to
the extent that the exceptions established by s
73(2) warranted" (12). His Honour was of the view that interest should be
ordered
only "to the extent that it was necessary to do so to correct or take
account of the default of the defendant" (13) as referred to
in s 73(2).
There are two difficulties with this approach. The first arises from the text
of s 73. Sub-section (1) directed that
"no interest shall be payable, on an
amount of 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" except as provided otherwise by that section. The exceptions are
prescribed by pars (a), (b) and (c) of sub-s (2). When any of those
exceptions is made out, the court is authorised to order the
payment of
interest. The interest which sub-s (1) prohibits - that is, interest from the
date of death or injury to the date of
the award - is within the scope of the
authority conferred by sub-s (2). The second difficulty which the view of
Mahoney JA encounters
is that the exceptions prescribed by pars (a) and (b) of
sub-s (2) are not exceptions to which a particular date can be assigned.
Indeed, it is possible that, at different times between the date of injury and
the date of trial, different answers might be given
to the question whether
the criteria prescribed by pars (a) and (b) are satisfied. As the plaintiff's
case is developed by the unfolding
of events and the production of expert
medical and other reports on the plaintiff's condition, the answer to the
question whether
the steps taken by the defendant to assess the merits of the
plaintiff's claim are reasonable and appropriate (par (a)) or the question
whether an offer of settlement is appropriate (par (b)) may change from time
to time. The difficulties inherent in endeavouring
to ascertain a period
corresponding with "the default of the defendant" who fails to satisfy any of
the tests in sub-s (2) militates
in favour of the construction of that
sub-section which simply restores to the court the power to allow interest
from the date of
injury or death where any of those tests is satisfied.
10. But if it be right to treat interest as the price which the defendant is
required to pay for keeping the plaintiff out of the
money to which the
plaintiff is entitled, it would be wrong to award interest on the amount of
damages assessed after the increases
in the maximum amount prescribed by s 79
have been taken into account. If the maximum allowable under s 79 was $X at
the date of
the injury or death and $X + $Y at the date when the award is
made, the amount which the plaintiff has been kept out of from the
date of the
injury or death is only $X (or the relevant proportion of $X awarded at the
trial). That is the only amount on which
interest at commercial rates could
logically be allowed. If, pursuant to s 79, the plaintiff is awarded $X + $Y
(or the relevant
proportion of that sum), $Y (or the relevant proportion of
$Y) must be deducted from the interest allowed so as to eliminate a
duplication
of the benefit which the passage of time has conferred on the
plaintiff.
11. The plaintiff was injured before s 79 came into force (14) and his
entitlement under that section only arose at that time (15).
On the view we
take of interest, namely, that it is the price to be paid for keeping a
plaintiff out of money to which he or she
is entitled, neither s 94 of the
Supreme Court Act 1970 (NSW) nor s 73 of the Act can authorise interest from
the date of injury in this case: it is only from the date on which s 79 of
the Act came into force that the plaintiff can be said to have been kept out
of damages to which he was entitled. And the maximum
amount which could then
be awarded was $180,000 (16).
12. When the present matter was decided at first instance by Master Malpass,
the maximum amount that could be awarded under s 79
of the Act was $198,000
(17). It had increased to $211,000 when the Court of Appeal published its
reasons for allowing an appeal
from the Master's decision (18), holding,
amongst other things, that the maximum amount allowable should be awarded for
the respondent's
non-economic loss, rather than 85% of the maximum as awarded
by the Master (19). The judgment of the Court of Appeal specifies $211,000
for non economic loss (20), though counsel informed this Court that the
maximum applicable at the time when the order was made ($212,000
(21)) was the
amount actually awarded. That approach has not been challenged.
13. Interest was calculated on the award of $212,000, from the date of the
injury up until the date of the Master's order. It should
have been
calculated on $180,000 from the date when s 79 came into force and then
reduced by $32,000, being the difference between
the amount awarded under s 79
and the amount which would have been awarded at the earliest time after the
date of injury.
14. The appeal should be allowed. The matter should be stood over to enable
the parties to agree as to the terms of the orders
necessary to give effect to
this judgment. If there is no agreement, the matter should be remitted to the
New South Wales Court
of Appeal.
McHUGH AND GUMMOW JJ. This appeal involves consideration of the decision, as to the award of interest upon damages for pre-trial non-economic loss, by this Court in an appeal from the Supreme Court of South Australia, MBP (SA) Pty Ltd v Gogic (22). The immediate significance of Gogic is its applicability to the regime established for New South Wales in certain cases by the Motor Accidents Act 1988 (NSW) ("the Act").
2. In particular, the appeal involves the construction of s 73 of the Act.
This deals with the power of the Court to order the payment
of interest, in
respect of the period between death or injury and the
date of the award of
damages.
3. Gogic was concerned with s 30c(1) of the Supreme Court Act 1935 (SA) ("the
SA Act"). This empowered the Supreme Court to award interest on judgments and
sub-s (2) thereof provided that the interest
was to be calculated
at such rate
as may be fixed by the Court and, where judgment was given upon an
unliquidated claim, from the
date of the commencement
of the proceedings to
the date of the judgment. In Gogic, the respondent had recovered against the
appellant
damages at common law
for personal injury. The award included
interest. This interest component contained interest on damages for
pre-trial
pain and
suffering which was calculated at a commercial rate. On appeal to
this Court, it was held in a joint judgment
by all members of
the Court that
interest on damages for non-economic loss sustained before the trial should
not have been calculated
at current commercial
interest rates or the "real"
rate of interest which would have been available to the plaintiff in a
relevant
period. Rather, interest
should have been calculated at a rate
representing the difference between the prevailing rate for secured
investments and the rate
of inflation. Further, the rate which ought to be
adopted in such circumstances, though said by this Court
to be somewhat
arbitrary,
was 4 per cent per annum.
4. After observing that damages for pre-trial non-economic loss are assessed
in accordance with the value of money as at the time
of the award, the Court
in Gogic proceeded (23):
"In no way is any loss which a plaintiff incurs by reason of beingdeprived of his or her damages for pre-trial non-economic loss brought about by inflationary factors. In those circumstances, to award interest on damages for non-economic loss during the pre-trial period by reference to commercial rates is to compensate the plaintiff for a 'loss' which he or she has not sustained."
5. The relevant facts in the present appeal are within a short compass. The
respondent, Mr Marsland, was born in 1970. On 15 July
1987, whilst travelling
in New South Wales as a passenger in a motor car driven by the appellant, Mr
Marsland suffered severe injuries
by reason of an accident caused by the
negligence of the appellant. On 11 December 1989, Mr Marsland instituted his
action in the
Supreme Court of New South Wales. Liability was admitted and
the action proceeded for assessment of damages. With effect on 4 May
1992,
Master Malpass directed entry of judgment in favour of Mr Marsland for
$2,025,259. On 30 July 1993, the Court of Appeal increased
the damages
recovered to $2,438,336 (24). In particular, the Court of Appeal increased
the award of damages for non-economic loss
from $168,300 to the maximum then
permitted by the Act, namely $211,000 (25).
6. The Court of Appeal reserved to the parties the right to make submissions
regarding interest and costs. The parties did so,
and on 24 December 1993 the
Court of Appeal delivered further reasons for judgment (26). In the course of
those reasons, the Court
(Kirby P and Meagher JA, Mahoney JA dissenting)
differed as to the construction of s 73 of the Act. On 31 May 1994, orders
were
entered to give effect to the judgments of the Court of Appeal. In the
result, judgment was entered
for Mr Marsland in the sum of
$2,648,054.
Paragraph 8 of the orders is in the following terms:
"The judgment sum is comprised of the following amounts:$507.00; and
(i) Damages assessed in the sum of $2,438,336.00;
(ii) Interest on non-economic loss in the sum of $178,451.00;
(iii) Interest on past economic loss in the sum of $2,807.00;
(iv) Interest on paid out of pocket expenses in the sum of
(v) Interest on past gratuitous assistance in the sum of$27,953.00."
7. Special leave was granted by this Court to test the construction of s 73
which was adopted by the majority of the Court of Appeal
in so far as it
produced component (ii) of the final judgment sum. This
was $178,451, being
interest in respect of damages for non-economic
loss (including damages for
pre-trial pain and suffering) and
calculated as to the whole of that interest
at what was described as
the "full rate", that is to say a commercial rate
rather than
at that rate indicated by Gogic.
8. The majority of the Court of Appeal rejected the proposition that the
principle enunciated in Gogic should apply. They said
(27):
"At least since Ruby v Marsh (28) it must be regarded aswell-established that general damages are awarded in an unrestricted manner in the money value (at) the time of judgment, not the time of injury. What MBP (SA) Pty Ltd v Gogic establishes is that, since the Ruby v Marsh principle contains a built-in inflationary factor, it would be a conceptual absurdity to award full interest on general damages as so awarded. In our view that reasoning can have no application in cases like the present, where the amount awarded for 'non-economic loss' can hardly be said to be ascertained in terms of the money value (at) the time of judgment, but is subject to an arbitrary and artificial statutory limit."
"where the quantum of 'non-economic' loss is arbitrarilyrestricted, we would be disposed not to apportion between the past and the future, as to do so would involve carrying artificiality to an extreme ... It follows that the plaintiff is entitled to interest on this component in full from the date of injury to the date of judgment."
9. Earlier in their reasons, the majority had said (29) that, once what they
described as "the barriers erected by s 73" were overcome,
"ordinary
principles" applied, namely that there should be the fair legal measure of
compensation represented by an
award of interest
for the period of delay in
payment between the date of accrual of the cause of action and judgment.
Their Honours
continued (30):
"Viewed in that light, it is difficult to see why a successfulplaintiff has not got almost a vested right to an award of interest, so that circumstances have to be indeed exceptional before he or she can be deprived of it on any discretionary ground."
10. In these passages are found two strands from which the appeal to this
Court has been fashioned. First, there is the question
whether s 73 of the
Act is to be construed in a way which involves the application of "ordinary
principles" to the award of interest
once the plaintiff has
overcome the
"hurdles" presented by the section, so that the successful plaintiff has
almost a vested right
to an award of interest.
The second question is whether
those "ordinary principles" which are imported into s 73 require or permit
an
award calculated at a rate and in a manner more generous than that applied in
Gogic. The majority of the Court
of Appeal went
beyond Gogic on the footing
that the Act did not leave to the general law the assessment of the damages in
respect of which the interest
award was made, but, rather, subjected
recovery
for non-economic loss to what their Honours described as "an arbitrary and
artificial
statutory limit". In that connection
it will be necessary to refer
to ss 79 and 80 of the Act.
11. To s 73 and related provisions of the Act we now turn. It should be
noted that the text of s 73 has changed during the course
of the relevant
events. A new s 73 was substituted, with effect from 17 June 1994, by the
Motor Accidents (Amendment) Act 1994 (NSW).
Nothing, for the purposes of
this
appeal, turns upon s 73 in its new form.
12. As we have indicated, the accident which injured Mr Marsland occurred on
15 July 1987. With effect from 1 July 1987, common
law rights in respect of
actions such as the present case had been abolished by the Transport Accidents
Compensation Act 1987 (NSW)
("the Transport Accidents Act"). However, in the
next year the Act was passed. Section 5 of the Act repealed the Transport
Accidents
Act.
13. The effect of ss 6 and 7 of the Act upon the rights of Mr Marsland was to
restore the law to the state it would have been in
if the Transport Accidents
Act had not been passed, but then to subject his rights to recover damages to
the provisions of Pt 6.
This was achieved by s 7 which deemed Pt 6 to have
applied from and including 1 July 1987. Part 6 of the Act (headed "AWARDING
OF DAMAGES") comprised ss 68-82. It will be necessary to refer further to s 7
later in these reasons.
14. The restoration of common law rights was not unconditional; rather, it
was qualified and limited by the provisions of Pt 6 (31).
Section 70 stated
that a court was not to award damages to a person in respect of a motor
accident contrary to Pt 6. "Non-economic
loss" was defined in s 68 as meaning
pain and suffering, loss of amenities of life, loss of expectation of life,
and disfigurement.
Section 79 imposed restrictions upon the award of damages
for non-economic loss. Sub-section (2) stipulated that the amount of damages
for non-economic loss was to be a proportion, determined according to the
severity of that loss, of the maximum amount which might
be awarded.
Sub-section (3) stated:
"The maximum amount which may be awarded for non-economic loss is$180,000 (or the maximum amount declared for the time being under section 80), but the maximum amount shall be awarded only in a most extreme case."(emphasis added)
15. The limit of $211,000 had been fixed from 1 October 1992 (33) and the
Court of Appeal proceeded on the footing that it applied
to injuries suffered
before as well as after that date (34). There is no dispute before us as to
this course (35).
16. Section 79 was construed by the Court of Appeal in Southgate v Waterford
(36). The Court held that the amount recovered for
non-economic loss was not
to be calculated in accordance with ordinary common law principles up to the
statutory maximum, so that
the plaintiff recovered a proportion of the common
law damages representing the ratio between those damages and the maximum
amount
fixed by the legislation. Rather, the Court determined that it was
appropriate for the trial judge (i) to make findings on those
elements in the
evidence which were relevant to non-economic loss as a head of damage formerly
considered at common law; (ii) to
conceive a most extreme case (not the most
extreme case); and (iii) to award a sum somewhere between nil and the
"ceiling", in a
ratio fixed by keeping in mind that this statutory maximum was
imposed for a most extreme case.
17. It will be apparent from this construction of s 79 that in Southgate v
Waterford the Court of Appeal was not denying the applicability
of the
underlying rationale in Gogic, namely, that the sum awarded for pre-trial
non-economic loss still was to be assessed in accordance
with the value of
money as at the time of the award, albeit in a lesser sum than would have been
recovered at common law. Their
Honours said (37):
"It is clear that one reason which lay behind the fixing of a'cap' on the recovery of damages for non-economic loss was an estimation of what the community could afford. The provision so determined was to be increased regularly. When this is seen as a purpose of the legislature, the procedure adopted by s 79(2) and s 79(3) is far from irrational or capricious. Arguably, it is perfectly rational and justifiable as providing equity between injured persons claiming such damages in circumstances where the maximum amount recoverable is limited."
18. Section 73 of the Act dealt with payment of interest. It was not
confined to interest in respect of an amount of damages for
pre-trial
non-economic loss but, as we have indicated, it is with that particular
application of the section that this appeal is
concerned. The respondent
supports the determination of the majority of the Court of Appeal that,
consistently with s 73, the relevant
interest component might be assessed at a
commercial or "full" rate rather than that adopted in Gogic in respect of the
award of
damages under the South Australian legislation. The appellant
submits that the reasoning in Gogic should have been applied by the
Court of
Appeal.
19. As enacted (in 1988), s 73 of the Act stated:
"(1) Except as provided by this section, a court shall not, inrelation to an award of damages, order the payment of interest, and no interest shall be payable, on an amount of 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) A court may order the payment of interest -reasonable and appropriate to assess the merits of the plaintiff's claim and liability of the defendant in respect of the claim; or
(a) if the defendant has not taken such steps (if any) as may be
(b) if, where it would be appropriate to do so, the defendant hasnot made an offer of settlement; or
(c) if the defendant has made an offer of settlement but theamount awarded by the court (without the addition of interest) is more than 20 per cent higher than the highest amount offered in settlement by the defendant.
(3) An offer of settlement is not to be regarded as an offer ofsettlement for the purposes of this section unless it is made in writing.
(4) Rules of court may be made for or with respect to ordering thepayment of interest in accordance with the principles set out in this section.
(5) Except as provided by this section, nothing in this sectionaffects any other law relating to the payment of interest on an amount of damages." (emphasis added)
"(c) ifinterest) is more than 20 per cent higher than the highest amount offered in settlement by the defendant; and
(i) the defendant has made an offer of settlement; and
(ii) the amount awarded by the court (without the addition of
(iii) the court is satisfied that the highest amount offered bythe defendant was not reasonable having regard to the information available to the defendant at the time the offer was made."
20. It is unnecessary to determine whether this assumption was correctly
made. This is because the facts satisfied par (c) in both
of its
formulations. On 18 March 1991, Mr Marsland made an offer of compromise to
accept $2 million plus costs. The highest offer
of the defendant was made on
25 March 1991. This was for $1.8 million with costs. Thus the $2,438,336
damages awarded by the Court
of Appeal (excluding interest and costs) was more
than 20 per cent higher than the highest offer of the defendant. This meant
that
par (c) in its original form was satisfied. It also meant that the
condition in sub-par (ii) of par (c) in its amended form was
met, together
with sub-par (i). Further, the majority of the Court of Appeal was satisfied
(38) as to sub-par (iii), saying that
there had been a "wholly inaccurate
estimate" of the result of the case if regard were had to the medical reports
available to the
defendant at the time of the offer.
21. It followed, and it is not contested, that an order for the payment of
interest might be made. What is in dispute is the consequences
of that state
of affairs and, in particular, the further operation of s 73.
22. Before turning to consider these issues of construction, five threshold
points should be made. The first point is that submissions
to this Court
referred to "common law rights" in respect of the award of interest on damages
in an action of this nature. The suggestion
was that s 73(1) abrogated common
law rights to which the plaintiff otherwise was entitled. It is true that the
position in equity
(39) and in admiralty (40) differs from that at common law.
But at common law there is no power to make an order for the payment
of
interest to compensate for the delay in obtaining payment of what the court
determines to be the appropriate measure of damages
in tort or for breach of
contract. The position is explained as follows by Brennan and Deane JJ in
Hungerfords v Walker (41):
"There is, in our view, a critical distinction between an orderthat interest be paid upon an award of damages and an actual award of damages which represents compensation for a wrongfully caused loss of the use of money and which is assessed wholly or partly by reference to the interest which would have been earned by safe investment of the money or which was in fact paid upon borrowings which otherwise would have been unnecessary or retired. On the other hand, there is no common law power to make an order for the payment of interest to compensate for the delay in obtaining payment of what the court assesses to be the appropriate measure of damages for a wrongful act. If such interest is to be awarded at common law, it must be pursuant to statutory authority."
23. The second point is that statutory authority of the type referred to by
Brennan and Deane JJ in the above passage exists throughout
Australia. We
have referred earlier in these reasons to s 30c of the SA Act. In New South
Wales, provision of this nature is made
by s 94 of the Supreme Court Act 1970
(NSW) ("the Supreme Court Act") (42).
24. Prior to its amendment, effective 1 November 1991, by the Courts
Legislation (Civil Procedure) Amendment Act 1991 (NSW) ("the
1991 Act"), s 94
stated (43):
"(1) In any proceedings for the recovery of any money (includingany debt or damages or the value of any goods), the Court may order that there shall be included, in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect.
(1A) Where -liquidated damages; and
(a) proceedings have been commenced for the recovery of a debt or
(b) payment of the whole or a part of the debt or damages is madeduring the currency of the proceedings and prior to or without judgment being given in respect of the debt or damages, the Court may order that interest be paid at such rate as it thinks fit on the whole or any part of the money paid for the whole or any part of the period between the date when the cause of action arose and the date of the payment.
(2) This section does not -as of right whether by virtue of any agreement or otherwise; or
(a) authorise the giving of interest upon interest;
(b) apply in relation to any debt upon which interest is payable
(c) affect the damages recoverable for the dishonour of a bill ofexchange."
"(3) In any proceedings for the recovery of damages, the Court maynot order the payment of interest under subsection (1) if:
(a) the defendant has made an offer of settlement; andinterest) does not exceed by more than 10 per cent the highest sum offered in settlement by the defendant,
(b) the sum for which judgment is given (without the addition of
25. The result is that, from 1 November 1991, that is to say after the
institution by Mr Marsland of his action but before the orders
of the Master
and of the Court of Appeal, s 94 of the Supreme Court Act made provision
encouraging the making by defendants, and
acceptance by plaintiffs, of
reasonable offers of settlement. Section 94
did so by denying to the
plaintiff what otherwise might
be an order for the payment of interest where
the defendant made an unaccepted
offer of settlement which matched or nearly
matched
the amount of damages ultimately awarded by the court.
26. The third point concerns the submission made to this Court that s 73 of
the Act is not, in the relevant sense, a "free-standing"
provision and that,
rather, it is yoked to s 94 of the Supreme Court Act, so that the phrase in s
73(2) that a "court may order the
payment of interest" is to be understood as
if the provision read "may, under s 94, order the payment
of interest". This
is an unlikely
reading of s 73 given that, since the amendment of s 94 by the
1991 Act, s 94 has contained its own provision designed to encourage
the
making and
acceptance of settlement offers.
27. The form of s 73 itself also tends against such a construction. Section
73(4) provides for the making of Rules of Court "for
or with respect to"
ordering the payment of interest "in accordance with the principles set out in
this section". That suggests
that the relevant principles appear from s 73
itself, not by a process which involves "picking up" s 94.
28. Supreme Court Rules (Amendment No 289) 1994, made by the Rule Committee
on 21 November 1994, amends the Supreme Court Rules
in apparent exercise of
the power in s 73(4). In particular, an originating process must now
specifically claim, but without claiming
any amount, an order for interest
under s 73 of the Act (Pt 7 r 1(5)). Where the Court gives judgment for the
payment of money and
makes an order under s 73 for payment of interest,
interest shall, unless the order otherwise provides, be payable only on so
much
of the money as is from time to time unpaid (Pt 40 r 7(1)). Further,
from time to time, the Chief Justice of New South Wales has
issued Practice
Notes stating that, when computing interest for the purposes of s 73, and
subject to any evidence adduced, it may
be taken that the yearly rates of
interest specified in the Practice Note are appropriate to guide the Court.
At the time of the
decision in the present case, both at first instance and in
the Court of Appeal, the relevant Practice Note was No 73 issued 21 February
1992. This referred to the table set out in Sched J to the Supreme Court
Rules.
29. The fourth point is that the majority in the Court of Appeal observed in
the present case, with reference to Bennett v Jones
(44), that the use of the
facultative verb "may" in s 73(2) imports a discretion but this is one which
must be, as it was put, "exercised
judicially". Section 94 of the Supreme
Court Act also uses the expression "the Court may order". On the other hand,
s 30c of the
SA Act, considered in Gogic (45), uses the expression "the court
shall" but conditions it by the expression "(u)nless good cause
is shown
to
the contrary".
30. In Bennett v Jones, the New South Wales Court of Appeal described s 94 as
conferring a power to award interest (46). This is
the preferable method of
construing s 73, as it is s 94 of the Supreme Court Act. A provision granting
power of this nature to a
court should not be read narrowly by making
implications or imposing limitations
(47). Rather, the content of the power
conferred
by s 73 is to be ascertained by having regard to the nature, scope
and purpose of the legislation.
31. The fifth point is that made by Mahoney JA in his dissenting judgment in
the present case. It is that s 73 is to be read having
in mind the state of
previous authority upon s 94 of the Supreme Court Act.
32. In Bennett v Jones, the Court of Appeal had held that the power under s
94 should be regarded as entirely compensatory so as
to do no more than that
which is fair in a pecuniary sense between the parties and that the power
should not be used to penalise
either party for delay or failure to observe
Court procedures. The Court also held that, taking the date of the trial as
the dividing
point between past and future, (i) there was power under s 94 to
award interest upon those component parts of the total award of
damages which
constituted past losses or detriments and, consistently with the reasoning in
Ruby v Marsh (48), to do so during the
period for which they had been
outstanding, that is to say since they accrued, (ii) there was no power under
s 94 to award interest
upon those components of such an award which related to
future elements with respect to which the date of trial provided the base
date
for discount; this was because, at the date of trial, these matters had not
been quantified and therefore had not been outstanding,
and (iii) because, in
relation to an award of damages for personal injury, an analogy could and
should be drawn (as to past and future
components as referred to above)
between the personal and economic elements in the award, interest might be
awarded on that part
which derived from past pain and suffering and loss of
the amenities of life but not on that part which related to future detriment
of that kind.
33. The Court of Appeal suggested in Bennett v Jones (49) that interest might
not be awarded under s 94 and might be refused or
allowed only in respect of a
limited period if there had been deliberate delay by the plaintiff causing
detriment to the defendant.
Nevertheless, the general effect of the decision
was to treat as irrelevant delay due to the actions or defaults of either
party
and to disregard the reasonableness or otherwise of what the parties had
done to bring the proceedings to a conclusion, by settlement
or otherwise.
34. Furthermore, as Mahoney JA observed in the present case (50), between the
adoption of the reasoning in Ruby v Marsh (51) by
the New South Wales courts
in 1977, and 1988 when the Act was introduced, amounts awarded as interest
greatly increased, so much
so that interest was often one of the largest
components of personal injury awards.
35. Against that background, Mahoney JA discerned from the Act, and from s 73
in particular, a twofold legislative intention, namely
(52):
"(I)t (was) intended to establish that the entitlement to interestwas not to be based upon the concept that a plaintiff is entitled to damages from the date of injury and that interest is in principle to run from that date; and it (was) intended that, in the cases where, by way of exception, interest could be awarded, it was to be awarded only if and to the extent that the exceptions established by s 73(2) warranted."
36. With that statement we agree.
37. The end of s 73 supplied its starting point. Sub-section (5) provided
that, except as stated in s 73, nothing in s 73 "affects
any other law
relating to the payment of interest on an amount of damages". This left
otherwise intact the general law on the subject,
to which we have referred,
and other State legislation such as s 94 of the Supreme Court Act. To the
extent that there was any inconsistency
with a law of the Commonwealth, the
latter would have prevailed in any event (53).
38. The first sub-section of s 73 also commenced with the phrase "(e)xcept as
provided by this section". Section 73(1) went on
to impose a prohibition,
with two limbs to it, in respect of the payment of interest on an amount of
damages for the period
between
the date of death or injury and the date of the
award of damages. In relation to that award of damages, a court was not
to
order
the payment of interest. Nor was interest to be payable. Thus, the
courts were enjoined from making an order for the payment
of
interest where in
the past they might have done so, for example, in pursuance of powers
conferred by s 94 of the Supreme Court Act.
Further, s 73(1) dealt with the
situation where, by default or otherwise, such an order was made. Of its own
force, s 73(1) prevented
that order giving rise to a judgment debt and it did
so by stating, "no interest shall be payable".
39. In this way, s 73(1) operated to deny what otherwise would be the
operation of any other statutory provision, in particular
s 94 of the Supreme
Court Act, to authorise the making of an order for the payment of interest on
an award of damages in respect
of a motor accident, for the period
from the
date of death or injury to the date of the award. What followed in s 73(2)
were exceptions
to that general denial. Interest might be awarded if, and to
the extent that, an exception was established in terms
of s 73(2).
In this
way, s 73 supplied an incentive to prompt settlement of claims.
40. Accordingly, in our view, the majority of the Court of Appeal was in
error in approaching s 73 on the footing that a successful
plaintiff would
have thereby obtained "almost a vested right to an award of interest", so that
it
was merely a question of seeing
which of the "barriers" in s 73(2) the
plaintiff surmounted. In the present case the common law did not endow the
plaintiff with
any relevant common law right to interest
on the damages award.
It was not a question of restoring those or any other rights to the
plaintiff
once the plaintiff had overcome
"statutory hurdles".
41. Section 73(2) empowered the court to "order the payment of interest" if
one of three conditions set out in pars (a), (b) and
(c) was satisfied.
We
have used the term "condition" to encompass the circumstance that, in some
cases, what was involved was the
ascertainment of
a basic matter of fact, for
example the amount of the highest offer of settlement (par (c)(ii)), and in
others it
was the satisfaction
of the court, for example as to the
reasonableness of the highest amount offered (par (c)(iii)).
42. The phrase in s 73(2) "may order the payment of interest" is to be read
with the statement in s 73(1) of that which the court
was otherwise not to
order, namely the payment of interest on damages "in respect of the period
from the
date of the death ... or
injury ... to the date of the award". But
the power of the court conferred by s 73(2) is not to be read in any narrow or
restrictive
fashion. In our view, the power conferred by s 73(2) was
exercisable by an order in respect of the whole or part only of that period.
In particular, the temporal limitation of the reach
of an order made under s
73(2) might properly reflect the view taken by the court
of the effect upon
the interests of the parties of the relevant failure or failures
of the
defendant which, in terms of par (a),
(b) or (c), was established by the
plaintiff as a necessary step to enliven the exercise
of the power of the
court under s 73(2).
43. The broad legislative measures taken in the Act created some temporal
difficulties. For example, the requirement of the Act
that a claim made under
it be made within six months after the date of the motor accident to which the
claim related (s 43(1)) led
to doubts about the requirements of notice for
accidents occurring before the commencement of the Act (54).
44. Part 6 of the Act, which includes both ss 73 and 79, commenced on 1 July
1989. Mr Marsland's accident occurred on 15 July 1987.
At first sight it
might seem that Mr Marsland had no legislative entitlement to damages for
non-economic loss under s 79 and that
no interest could be awarded under s 73,
from the date of the accident to the date of the commencement of the Act.
45. Such a conclusion rests upon the application of the presumption against
retrospectivity. Dixon CJ formulated the classic statement
of the law in
Maxwell v Murphy (55):
"The general rule of the common law is that a statute changing thelaw ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events." That rule was recently expressed in the joint judgment in Rodway v The Queen (56) as follows:
"The rule at common law is that a statute ought not be given aretrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction."
46. The issue in the present case should be approached in two stages. First,
it must be considered whether the Act operates upon
causes of action accruing
prior to the commencement of the Act. Closer perusal of the Act shows the
clear intention that key parts
of the Act were to apply to events preceding
the commencement of the Act. Once this is determined the question is, to
adopt the
words of Sir Owen Dixon, whether it appears "with reasonable
certainty" from the Act that there is a power to award interest for
the period
between the cause of action arising and the commencement of the Act. In other
words, can the presumption against retrospectivity
be rebutted in relation to
the power to award interest? In our view it can be so rebutted. Section 73
is expressed in terms wide
enough expressly to allow the payment of interest
for any period after the cause of action arises.
47. The statement of claim filed on 11 December 1989 pleaded that the
"plaintiff's cause of action is brought pursuant to the Motor
Accidents Act
1988 (as amended)". The proceeding continued, before both the Master and the
Court of Appeal, on the basis that this
was correct and
that the Act did apply
to Mr Marsland's cause of action. This was so despite the fact that the cause
of action arose
before the commencement
of the Act. The tortuous path of
legislative amendment demonstrates that this was the correct basis on which
to
decide the case.
48. Section 7 of the Act (which also commenced on 1 July 1989) provides as
follows:
"On the commencement of this Part, Part 6 shall be taken to haveapplied, during the period from and including 1 July 1987 to that commencement, to a transport accident within the meaning of the (Transport Accidents Act) occurring on or after 1 July 1987."
49. Part 10 of the Act (ss 138-150) is headed "FUNDING AND ADMINISTRATION OF
PREVIOUS SCHEMES". Part 10 commenced on 1 July 1989
(57). Part 10 indicates
that Pt 6 was designed to apply to accidents occurring prior to the
commencement of the Act. Section 138
established a category of "intermediate
transport accident(s)" which occurred on or after 1 July 1987 and before the
date of commencement
of Pt 2 (ie, 1 July 1989). In relation to these
accidents, of which Mr Marsland's was clearly one, further provision was made.
50. As enacted, s 146(1) of the Act stated:
"Part 5 (Claims and court proceedings to enforce claims) appliesto and in respect of a claim relating to an intermediate transport accident in the same way as it applies to a claim within the meaning of that Part, subject to this section."
51. With effect from 1 July 1989, s 146(1) read:
"Parts 4, 4A, 5, 6, 9 and 10 apply to and in respect of a claimrelating to an intermediate transport accident in the same way as they apply to a claim within the meaning of Part 5, subject to this section."
52. The second stage of the question is now reached. It is whether the
application of Pt 6 to Mr Marsland's accident carries with
it a power to award
interest under s 73 for the period between the cause of action arising and the
commencement of the Act. The
presumption against retrospectivity is a rule of
construction, and as such must give way to legislative provision to the
contrary.
Such contrary legislative provision must, however, appear with
"reasonable certainty". In our view, the terms of s 73(1) prescribe
the power
of a court to award interest under sub-s (2) "from the date of the death or
injury to the person". It is this date which
is expressed to be the outer
temporal limit of the power to award interest, rather than the date of the
commencement of the Act.
If that view as to the combined operation of sub-ss
(1) and (2) were not accepted, that would leave an even more broadly expressed
power to award interest. Sub-section (2) simply says "(a) court may order the
payment of interest". The expression of the power
is certainly broad enough,
when read with the other parts of the Act applying Pt 6 back in time, to show
with reasonable certainty
that the power to award interest was intended to be
retrospective.
53. This construction is consistent with authority. In Simonius Vischer and
Co v Holt and Thompson (58), the New South Wales Court
of Appeal considered an
argument as to the retrospective operation of the interest provision in s 94
of the Supreme Court Act. That
Act came into operation in July 1972. In
Simonius Vischer the cause of action had arisen in 1964 and the action was
commenced
in
April 1966. Until the commencement of the Supreme Court Act
there was no right or discretionary right to receive interest in relation
to
such a cause of action.
54. We have earlier adverted to s 94 which empowered the Court to award
interest. It provides for interest "for the whole or any
part of the period
between the date when the cause of action arose and the date when the judgment
takes effect". Section 16(1) of
the Supreme Court Act provided that
"(s)ubject to the rules, and unless the Court otherwise orders, this Act does
not apply to ...
any proceedings commenced
in the Court before the
commencement of this Act". Thus, the Supreme Court Act dealt expressly with
retrospective
application so far as the past event was the commencement of
proceedings. In Simonius Vischer
there had been an order made under
s 16(1)
and the Court had to determine whether the admitted application of s 94
allowed the payment of interest for the period between
the
cause of action
arising and the commencement of the Act. It was held that s 94 indicated with
sufficient certainty that the
power
to award interest extended to the period
between the time when the cause of action arose and the time when the Supreme
Court
Act commenced. Moffit P said (59):
"I think the preferred construction of s 94(1), particularly whentaken with s 16(1), is that, when s 94(1) is expressly applied to a cause of action accrued in the past, these provisions indicate a legislative intent with certainty that, either by the operation of the Act, or rules, or by an order made under the Act, the power provided by s 94(1) shall operate according to its terms so as to encompass within the power of the court, any part of the period from 'the date when the cause of action arose'."
55. Close statutory analysis reveals the present case to be one where the
same result is reached. Section 7 and s 146 of the Act
indicate that Pt 6 is
to apply to causes of action arising during the period between 1 July 1987 and
1 July 1989. The power to award
interest on damages for such causes of action
exists for the period "from the date of the death ... or injury ... to the
date of
the award". Thus, it appears with sufficient certainty that a
retrospective power was intended. It becomes a question of discretion
whether
or not the power should be exercised in the instant case.
56. The Court of Appeal in Simonius Vischer held that such a power must be
read according to its terms subject only to discretionary
considerations
whereby unfairness may be avoided. Thus, Moffit P noted (60) that "the
substantive nature of an award, and ordinary
principles of fairness, make it
difficult to contemplate that the discretion would ever be exercised in
respect of the period prior
to the commencement of the Act". This difficulty
in contemplation applies to the instant case.
57. The view of the court of the effect upon the interests of the parties of
the relevant failure of the defendant in terms of pars
(a), (b) and (c) of s
73(2) would be influenced by the circumstance that the accident in question
preceded the date of the commencement
of the Act. In this way there may be
avoided prejudice to a defendant who failed to make an offer or an offer at an
appropriate
level, when the defendant did not know, because there could have
been no means of knowing, of the legislative importance later to
be attached
to the making of such an offer.
58. The Court has not had the benefit of submissions as to the application of
these considerations to the facts of the present case.
What is plain is the
Court of Appeal approached the matter upon the wrong footing.
59. It follows that we would, with respect, disagree with the statement in
the majority judgment in the Court of Appeal in the present
case (61):
"The plaintiff's prima facie entitlement should be for the fullperiod. It must follow that some of the decisions of judges at first instance cited to us are erroneous. Examples of such decisions are Dell v Dalton (Abadee J, 11 December 1990, unreported) where interest was granted from the date when the statement of particulars was filed until two weeks before judgment, and Richardson v Wagga Rent-a-Bus (Wood J, 23 July 1990, unreported) where interest was awarded as from the date when it was proper to offer to settle."
60. The order for the payment of interest may, as in the present case,
include a component in respect of what otherwise would be
damages at general
law for pre-trial non-economic loss. In the present case, the ceiling for
damages for non-economic loss which
was fixed by operation of ss 79 and 80,
had been reached. But that is not to say that the sum then awarded for
damages, including
damages for pre-trial non-economic loss, albeit constrained
by the requirements of s 79 as interpreted in Southgate v Waterford (62),
did
not reflect the present value of money at the time of the award. That being
so, the reasoning in Gogic (63) became material
for the exercise by the court
of its power to award interest under s 73 in respect of the past non-economic
loss element in the award
of damages.
61. To take the opposite view, as was done by the majority of the Court of
Appeal, was to act upon a wrong principle in the exercise
of the power
conferred by s 73(2). The Act, particularly s 79, limits the amount which
otherwise might be recoverable as damages
for non-economic loss. One
operation of s 73 is partially to complement s 79, by making special, and
qualified, statutory provision
for the award of interest. It would be an odd
result in such a case if the legislation operated, in comparison with the
position
which otherwise would apply, by limiting the amount that might be
recovered as damages but by augmenting the amount of interest which
might
properly be awarded upon that diminished sum.
62. It follows that the appeal should be allowed. In the amended notice of
appeal the appellant seeks orders which would have the
effect of limiting the
interest on so much of the amount awarded for non-economic loss as can
reasonably be attributed to past non-economic
loss. However, at the hearing
of the appeal there was a joint submission that, if the appeal was to be
allowed, the parties should
have a short time within which they might agree
the necessary orders to give effect to that result and thereby avoid the need
for
the remission of the matter for further consideration by the New South
Wales Court of Appeal.
63. Accordingly, the parties should have 28 days within which to bring in
agreed orders to implement the decision of this Court.
If that is not done,
then, at the expiration of that 28 days, the matter is to be remitted for
reconsideration by the Court of Appeal
in accordance with the reasons for
judgment of this Court.
64. Special leave in this matter was granted upon the condition that the
appellant pay the costs of the respondent in any event
and that the appellant
not seek to disturb the orders for costs made in the Courts below.
1 The question of interest on damages for past gratuitous services was
excluded from the grant of special leave.
2 See Practice Note 73 and Sched J to the Supreme Court Rules 1970.
3 [1991] HCA 3; (1991) 171 CLR 657.
4 [1991] HCA 3; (1991) 171 CLR 657 at 666.
5 [1991] HCA 3; (1991) 171 CLR 657 at 663.
6 [1991] HCA 3; (1991) 171 CLR 657 at 663-666.
7 Wheeler v Page (1982) 31 SASR 1 at 6, which was approved in MBP (SA) Pty Ltd
v Gogic [1991] HCA 3; (1991) 171 CLR 657 at 666.
8 (1993) 32 NSWLR 649 at 653.
9 Section 80(2) of the Act. This adjustment is achieved, pursuant to s 80(1),
by a declaration by the Minister, published in the
Gazette, of the amounts
which are to apply for the purposes of s 79. Sub-sections (5) and (6) of s 80
provide that the amounts are
to be rounded up to the nearest $1,000 or $500
before declaration. Section 80(4) provides for the amounts to be determined
in accordance
with the regulations if the Australian Statistician fails or
ceases to make the estimates from which the amounts are derived.
10 [1991] HCA 3; (1991) 171 CLR 657 at 666.
11 [1991] HCA 3; (1991) 171 CLR 657 at 663-664.
12 (1993) 32 NSWLR 649 at 658.
13 (1993) 32 NSWLR 649 at 659.
14 The Act was enacted on 21 December 1988. Section 79 is contained within Pt
6 of the Act which commenced on 1 July 1989.
15 Sections 5, 6 and 7 of the Act.
16 Section 79(3) of the Act.
17 In a judgment handed down on 13 September 1991, Master Malpass awarded
damages for non-economic loss of $163,710, which is 85%
of the maximum amount
that could be awarded at that time ($192,600: New South Wales Government
Gazette No 120 of 28 September 1990
at 8681, effective from 1 October 1990).
When an order was made on 8 May 1992, the amount awarded for non-economic loss
was increased
to $168,300, which is 85% of the maximum amount at the time of
the order ($198,000: New South Wales Government Gazette No 134 of
27 September
1991 at 8354, effective from 1 October 1991).
18 New South Wales Government Gazette No 119 of 25 September 1992 at 7040,
effective from 1 October 1992. The Court of Appeal delivered
its judgment on
13 July 1993.
19 Marsland v Andjelic (1993) 31 NSWLR 162 at 167-170.
20 (1993) 31 NSWLR 162 at 182.
21 New South Wales Government Gazette No 104 of 24 September 1993 at 5917,
effective from 1 October 1993. The order was made on
25 May 1994.
22 [1991] HCA 3; (1991) 171 CLR 657.
23 [1991] HCA 3; (1991) 171 CLR 657 at 663-664.
24 Marsland v Andjelic (1993) 31 NSWLR 162 at 182.
25 (1993) 31 NSWLR 162 at 167-170.
26 Marsland v Andjelic (No 2) (1993) 32 NSWLR 649.
27 (1993) 32 NSWLR 649 at 653.
28 [1975] HCA 32; (1975) 132 CLR 642.
29 (1993) 32 NSWLR 649 at 652.
30 (1993) 32 NSWLR 649 at 652.
31 Southgate v Waterford (1990) 21 NSWLR 427 at 438.
32 New South Wales Government Gazette, No 104, 24 September 1993 at 5917,
effective from 1 October 1993.
33 New South Wales Government Gazette, No 119, 25 September 1992 at 7040. The
Court of Appeal delivered its judgment on 30 July
1993.
34 cf Doro v Victorian Railways Commissioners [1960] VicRp 12; (1960) VR 84; Staska v General
Motors-Holden's Pty Ltd [1972] UKPCHCA 1; (1972) 123 CLR
673 (PC).
35 In The Nominal Defendant v Gardikiotis (unreported, 19 May 1994), the same
course was taken by the Court of Appeal as in Marsland
and the point is not in
issue on the appeal to this Court in that case.
36 (1990) 21 NSWLR 427.
37 (1990) 21 NSWLR 427 at 439.
38 (1993) 32 NSWLR 649 at 652.
39 The Commonwealth v Huon Transport Pty Ltd [1945] HCA 5; (1945) 70 CLR 293 at 309; Hermann
v Charny (1976) 1 NSWLR 261 at 270;
Hungerfords v
Walker [1989] HCA 8; (1989) 171 CLR 125 at
148.
40 The Aizkarai Mendi (1938) P 263 at 279-280; Hungerfords v Walker [1989] HCA 8; (1989) 171
CLR 125 at 148.
41 [1989] HCA 8; (1989) 171 CLR 125 at 152.
42 Other provisions are Judiciary Act 1903 (Cth), s 77MA; Federal Court of
Australia Act 1976 (Cth), s 51A; Common Law Practice Act 1867 (Q), s 72;
Supreme Court Civil Procedure Act 1932 (Tas), s 165; Supreme Court Act 1935
(WA), s 32; Supreme Court Act 1935 (SA), s 30c; Supreme Court Act 1986 (Vic),
s 60.
43 Section 94 has been further amended by the Courts Legislation Amendment Act
1995 (NSW) which commenced on 1 August 1995.
44 (1977) 2 NSWLR 355 at 369.
45 [1991] HCA 3; (1991) 171 CLR 657 at 660-661.
46 (1977) 2 NSWLR 355 at 367, 369, 373.
47 PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife
Service [1995] HCA 36; (1995) 69 ALJR 829 at 834, 837-838;
[1995] HCA 36; 131 ALR 377
at 383, 388.
48 [1975] HCA 32; (1975) 132 CLR 642.
49 (1977) 2 NSWLR 355 at 371, 376.
50 (1993) 32 NSWLR 649 at 657.
51 [1975] HCA 32; (1975) 132 CLR 642.
52 (1993) 32 NSWLR 649 at 658.
53 NRMA Insurance Ltd v Tatt (1989) 92 ALR 299 at 314-316.
54 Croker v McKern (1990) 11 MVR 88 at 90.
55 [1957] HCA 7; (1957) 96 CLR 261 at 267.
56 [1990] HCA 19; (1990) 169 CLR 515 at 518.
57 Gazette No 73, 16 June 1989 at 3499.
58 (1979) 2 NSWLR 322.
59 (1979) 2 NSWLR 322 at 337.
60 (1979) 2 NSWLR 322 at 337.
61 (1993) 32 NSWLR 649 at 652.
62 (1990) 21 NSWLR 427.
63 [1991] HCA 3; (1991) 171 CLR 657.