SOUTH AUSTRALIA

4.1 Section 30b of the Supreme Court Act 1935 (SA) provides for interim payments to be made in any proceedings before that court. Under s 30b(1) where it is found that a party is entitled to damages, the court can enter a declaratory judgment determining liability and postpone the assessment of damages. Subject to a finding that there are special circumstances, a court must order the assessment of damages if such an order is requested after a period of four or more years.¹ Once liability is determined the court can also:

• make orders for the assessment of an interim payment on account of damages; and
• order the assessment of periodical payments on account of the damages.²

4.2 There is a proviso in s 30b(2) which states that the court “shall not include an allowance for pain or suffering or for bodily or mental harm (as distinct from pecuniary loss resulting therefrom)” when making an order for any payments. This proviso is subject to several exceptions, including where the judge is of the opinion that “special circumstances” should apply.

4.3 The legislation was introduced for several purposes, including:

(1) to enable liability to be determined, by trial if necessary, while the events are still fresh in the memory of witnesses and without the necessity of waiting until the plaintiff’s condition was sufficiently stabilized for the assessment of damages;

(2) to provide for interim payments of damages, pending final assessment, for the support of a plaintiff and the payment of [that plaintiff’s] debts, with incidental relief to hospitals, doctors and other creditors who would otherwise have to wait; and

(3) to enable the postponement of final assessment of damages where a plaintiff’s future remained uncertain.³

4.4 It has been observed that the principal and most successful use of the section has arisen in cases where the plaintiff’s prognosis is likely to remain uncertain for some years. In such cases the usual course is to have the issue of liability determined expeditiously and to have an interim award made to meet the needs of the plaintiff.⁴

4.5 The benefits of such a provision certainly appear attractive in theory. The section has not been overly used since its introduction over two decades ago.⁵ Correspondence from the South Australian Attorney General’s Department⁶ indicates that on the occasions where the section is used, the cases have involved substantial future medical expenses. In practice, the parties to the dispute generally agree to a course of action (pre-payment of general damages) on the basis of information tendered by the plaintiff.

Application of s 30b

4.6 It is a matter for the court’s discretion whether or not to make a declaratory judgment and order interim payments under this section. In exercising its discretion the court considers all the circumstances, the nature and extent of the plaintiff’s injuries and the seriousness of any possible developments in the plaintiff’s condition. The decision to apply this section is ultimately in the hands of the court,⁷ regardless of the plaintiff’s application. This fact has been demonstrated in those cases where the plaintiff has applied for final judgement, but the court has considered that it was in the interests of the plaintiff to pronounce a declaratory judgment and not assess final damages at the time of trial.⁸

4.7 Although s 30b is not limited in terms to any particular type of case, it has generally been applied in personal injury matters.⁹ However, there have been other types of cases where the court has exercised its discretion under this section. In Parnell Transport Industries Pty Ltd v Mala Bore Trading Co Pty Ltd,¹⁰ a case involving a breach of contract, the court was asked to determine liability and postpone the assessment of damages. The court entered judgment determining liability, and declared that the plaintiff had established its entitlement to damages for the defendant’s wrongful termination of the contract. The proceedings were adjourned for the assessment of damages.

4.8 The section does not define any specific factors which the court is required to take into account. In general, the section has been applied where there is uncertainty as to a plaintiff’s future medical condition. However, much will depend on the circumstances of the individual case. Other specific factors which the court has had occasion to consider are:¹¹

the unknown effect of uncertain labour conditions,¹² or of the outcome of an examination, on the plaintiff’s earning capacity;¹³ the failure to produce evidence which ought to have been tendered in respect of the extent of damages;¹⁴ the inability of the plaintiff presently to manage a lump sum award;¹⁵ and, the uncertainty of future costs.¹⁶

4.9 In personal injury matters, where the plaintiff’s condition is stable, and the declaratory judgment has been made, s 30b(6) requires the assessment of damages within four years of that judgment. A general postponement of more than four years will be available in special circumstances. There will be cases where four years will be too short a time in which to proceed to the assessment of damages,¹⁷ and despite the stability of the plaintiff’s condition, other factors, such as age¹⁸ may make the court postpone assessment.

4.10 The interim payment can be in the form of a lump sum, weekly payments, or whatever is most suitable in the circumstances, such payment not being disproportionate in relation to what the plaintiff may finally receive. On its face, s 30b(2) forbids recovery for non-economic loss. This exclusion is subject however, to certain circumstances, including “serious and continuing illness or disability” and a further category of “special circumstances”. The courts have interpreted “special circumstances” in such a way as to enable them to make awards for non-economic loss to the extent that it can be ascertained at the time.¹⁹

WESTERN AUSTRALIA

4.11 In claims for damages for death or personal injury caused by a motor vehicle, s 16(4) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) empowers a court to award damages by way of lump sum, periodical payments, or both. The court will not, however, depart from the lump sum award where neither party agrees to periodical payments.²⁰ Apparently this provision has been seldom used.²¹

4.12 Any orders for periodical payment are, of course, subject to review, although the section does not specify the circumstances which would give rise to such a review. Occasions would include the improved earning capacity of a defendant and changed economic conditions.²²

4.13 One further problem has been identified with respect to the Western Australian legislation in that it makes no provision where a plaintiff receiving periodical payments dies. Normally the plaintiff’s dependants would expect to receive the unexpired portion of the lump sum award. They would be seriously disadvantaged by a scheme of periodical payments.²³

ENGLAND

Interim damages

4.14 A system for the payment of interim damages is provided for in Order 29 of the Rules of the Supreme Court 1965 (Eng). The relevant provisions are similar to those in Part 5 Division 2 of the Supreme Court Act 1970 (NSW),²⁴ and were clearly the model in the framing of the New South Wales provisions.

4.15 Like their New South Wales counterpart, the provisions are not limited to personal injury cases and, indeed, in certain circumstances it is possible for interim payments to be made in respect of sums other than damages, for example, a claim for possession of land or an order for an account.²⁵ Application may be made at any time after the period allowed for a defendant to acknowledge service of a writ.²⁶ While the needs of the plaintiff will be a relevant consideration in most cases, the provisions are not expressly needs based.²⁷

4.16 Matters of which the court must be satisfied before making an order for interim damages are listed in O 29 r 11(1) and are broadly similar to those in s 76E(3) of the Supreme Court Act 1970 (NSW). The additional provision in r 11(1)(c) with respect to situations where there are two or more defendants has been discussed above.²⁸

4.17 Rule 11(1) provides that the court shall make such interim payments as it thinks just and makes provisions limiting the quantum of any interim payment in similar terms to s 76E(5) and 76E(6) of the Supreme Court Act 1970 (NSW).²⁹ As in New South Wales an order will not be made if the defendant is either not insured, is not a public authority, or is not a person with the ability to meet any payments required.³⁰ The final category differs from New South Wales in that the defendant must suffer “undue hardship” as the result of meeting any order.

4.18 As with s 76G of the Supreme Court Act 1970 (NSW) the court may make adjustments on the conclusion of proceedings in accordance with O 29 r 17.

4.19 The court has no jurisdiction to order interim payment by the Motor Insurance Bureau where that body has been joined as a defendant.³¹

Provisional damages

4.20 In England the introduction of provisions dealing with provisional damages arose from recommendations by the English Law Commission.³² These new provisions were introduced in 1982 as s 32A of the Supreme Court Act 1981:

(1) This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.

(2) Subject to subsection (4) below, as regards any action for damages to which this section applies in which a judgment is given in the High Court, provision may be made by rules of court for enabling the court, in such circumstances as may be prescribed, to award the injured person:

(a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and


(b) further damages at a future date if he develops the disease or suffers the deterioration.

Order 37 rules 7-10 of the Rules of the Supreme Court 1965 (Eng) make provision as allowed by s 32A(2). A Practice Direction³³ was also issued which came into effect with the scheme in 1985. The County Court Rules O 22 r 6A provide that O 37 r 7(2) and r 8-10 of the Rules of the Supreme Court shall apply in the English County Courts.³⁴

4.21 The legislation is principally aimed at “chance” cases, that is, those cases in which plaintiffs can prove there is a possibility that a disease will develop, or their condition will deteriorate, at some stage during their life. In such cases a lump sum award may not compensate them properly, as such an award provides compensation for future loss based on present estimates. The legislation is designed to provide plaintiffs with a more accurate award in personal injury cases by making it possible for them to claim further damages only when the specified disease or deterioration occurs.

4.22 The types of diseases which have been made the subject of an award of provisional damages include those associated with respiratory organs,³⁵ mesothelioma,³⁶ epilepsy,³⁷ blindness,³⁸ and leukaemia.³⁹ More than one disease or deterioration can be comprehended in the one order.⁴⁰ These cases indicate that injuries of relatively grave proportions are envisaged, despite the fact the words “chance” or “serious” are not defined. The few applications for an award of provisional damages have provided slender precedent for the circumstances in which an award of provisional damages will be made.⁴¹

4.23 Despite this, a threshold test of sorts has been established. In Willson v Ministry of Defence Justice Scott Baker posed three questions for consideration:

• whether it is proved that there is a chance;
• whether it is proved that there is a chance of some serious deterioration in the plaintiff’s physical condition; and
• whether the court should exercise its discretion in [the plaintiff’s] favour in the circumstances of the case?⁴²

4.24 For a “chance” to exist it was held that it had to be “measurable rather than fanciful”.⁴³ Referring to the facts of the case before him, Justice Scott Baker added: “However slim those chances may be, I think that they are measurable within the meaning of this section”. As to “serious deterioration in [the plaintiff’s] condition”, his Lordship said:

In my judgment, what is envisaged here is something beyond ordinary deterioration. Whether deterioration is serious in any particular case seems to me to be a question of fact depending on the circumstances of that case, including the effect of the deterioration on the plaintiff.⁴⁴

Although seriousness was a question of fact in each case, there should be “some clear cut event which, if it occurs, triggers an entitlement to further compensation”.⁴⁵

4.25 The Practice Direction in relation to provisional damages issued in 1985⁴⁶ requires the judge to specify the disease or type of deterioration:

(a) which, for the purpose of the award of immediate damages, has been assumed will not occur;


(b) which will entitle the plaintiff to further damages if it occurs at a future date.⁴⁷

Paragraph 3 of the Practice Direction also requires that the judge is normally to “specify the period within which the application for further damages must be made”. The English Law Commission has noted a tendency in the cases to set no limit at all.⁴⁸ But even if a limit is specified, the plaintiff may apply on more than one occasion within the specified period for an extension of time.⁴⁹

4.26 In Discussion Paper 25 the Commission pointed out a number of possible shortcomings with the scheme, namely the additional expenses associated with further reviews; financial uncertainty for a defendant who will not be sure whether a further payment may need to be made; the possible bankruptcy of a defendant; and the fact that the words “chance” and “serious” were not defined.⁵⁰

The Law Commission’s review of provisional damages

4.27 The English Law Commission has itself recently re-examined provisional damages as part of a general review of damages, and considered a number of particular issues under the following headings:

• Gradual deterioration
• Recovery of the plaintiff
• Death of the plaintiff
• Flexibility on time limits
• The overriding discretion of the court
• More than one application
• Interaction with the Fatal Accidents Act 1976.

Gradual deterioration

4.28 A criticism made of the provisions as they stood was that they excluded many cases involving a “gradual deterioration of the plaintiff’s condition”, rather than a specified future event. The Law Commission’s provisional view was not to extend the coverage of the legislation, noting that a “clear policy reason, such as repeated injustice” would be required before any change could be considered.⁵¹

Recovery of the plaintiff

4.29 A question raised during consultation by the Law Commission was whether the provisions should be extended to include cases where the “medical uncertainty concerns the extent to which the plaintiff will recover from an already existing condition”. This would involve an immediate assessment based on the “most favourable” prognosis with the right for the plaintiff to seek further damages if the existing condition had not improved as predicted.

4.30 This approach was rejected on the grounds that it would “restore uncertainty to the first award” and might encourage plaintiffs not to seek full recovery in order to provide a basis for a successful application in the future. There were concerns expressed about the ability of experts to predict recovery, as opposed to deterioration, and also that a defendant might feel justly grieved if a plaintiff recovered sooner than anticipated on even the most favourable prognosis available at the time.⁵²

Death of the plaintiff

4.31 Another problem, which has been raised by Deputy Judge Crowther in Molinari v Ministry of Defence,⁵³ involves cases where there is a possibility that a plaintiff may, as a result of injuries sustained, suffer a substantial deterioration and consequently die. Traditionally in such cases, the prospect of deterioration in the plaintiff’s condition and consequent death would result in a decrease in damages awarded. If the provisional damages regime were to apply, damages would be assessed on the basis that the deterioration and death would not occur. The plaintiff could then return to court and receive increased damages despite the imminent certainty of death following upon the deterioration. This would result in injustice by over-compensating the plaintiff.

4.32 The Law Commission accepted that this was an extreme case and concluded that judges would make appropriate use of the flexibility of the system in such circumstances:

Where clear injustice to a defendant would result from a provisional award, and the plaintiff would suffer less injustice from a traditionally assessed lump sum, the traditional approach should be taken.⁵⁴

No recommendations were made as to reform in this area.⁵⁵

Flexibility on time limits

4.33 It was also suggested that the specification of time limits for further assessment was unnecessary because the rules of court allowed application for an extension of time in any case. The Law Commission rejected this argument as assuming that the court would usually satisfy requests for an extension. It was considered also that an indefinite period could conceivably be prejudicial to some defendants.⁵⁶

The overriding discretion of the court

4.34 The Law Commission asked in its consultation paper whether the court’s overriding discretion to order provisional damages was too wide. They concluded that no change was warranted as, on balance, the discretion ensured “flexibility and is therefore the most appropriate machinery for dealing with existing uncertainties”.⁵⁷

More than one application

4.35 The Law Commission dealt with a problem arising under O 37 r 10(6) of the Rules of the Supreme Court 1965 which provides:

Only one application for further damages may be made in respect of each disease or type of deterioration specified in the order for the award of provisional damages.

The Law Commission pointed out that, while the provision required the specification of the disease or type of deterioration, it made no provision for a specification of body parts, so that if arthritis developed in a plaintiff’s leg and the plaintiff claimed further damages in respect of this deterioration, the plaintiff would be precluded from claiming further damages if arthritis developed in another limb at a later date as a result of the same injury.

4.36 After considering various solutions to the problem involving additional further assessments relating to the same disease or deterioration, and noting the need for clearly defined limits to be imposed, the Law Commission recommended that the following provision be added to O 37 r 10(6):

that more than one application may be made where the disease of deterioration so specified occurs in more than one position on the body of the plaintiff provided that the possible positions are specified at the time of making the order.

4.37 The Law Commission did not consider that such a provision would lead to anything more than a very small increase in the use of the English court system.⁵⁸ For the purpose of their review the Law Commission conducted a survey of 761 plaintiffs who had received awards of damages for personal injury at any time from 1992 up to ten years before (the accidents having occurred between 1967 and 1991). Only 4% of plaintiffs receiving settlements of £20,000 and more claimed provisional damages.⁵⁹ No statistics were collected to enable the production of annual figures showing the number of applications for provisional damages.

Interaction with death claims

4.38 The English Law Commission considered at some length the effect of provisional damages awards on actions under the English equivalents⁶⁰ of the Law Reform Miscellaneous Provisions Act 1944 (NSW) (“estate claims”) and the Compensation to Relatives Act 1897 (NSW) (“dependants’ claims”).⁶¹ In both cases a problem may arise where provisional damages are awarded but the plaintiff dies as a result of the specified disease or deterioration before the claim is brought for further damages. In the case of estate claims, the issue is whether or not the provisions of the Law Reform (Miscellaneous Provisions) Act preclude the plaintiff’s estate from claiming damages for lost earning capacity or loss of earnings during the lost years,⁶² a head of damage which would usually have been prominent in any claim for further damages by the plaintiff before his or her death. The Law Commission, agreeing with dicta of the English Court of Appeal in Middleton v Elliot Turbomachinery Ltd,⁶³ was of the view that the estate would be able to claim damages for the lost years. The reason is that the benefit which survives to the estate is the judgment already obtained, not the plaintiff’s cause of action (which is merged in the judgment). The position is, therefore, essentially the same as where the plaintiff has obtained judgment for damages to be assessed. The case is, therefore, outside the scope of the restrictions in the Law Reform (Miscellaneous Provisions) Act.

4.39 In the case of dependants’ claims, the issue is whether or not the plaintiff’s claim has been finally determined; if it has, the dependants are precluded from bringing a claim in respect of the same injury after the plaintiff’s death.⁶⁴ While the Law Commission’s view was that the plaintiff’s claim was not final so as to preclude a dependants’ claim,⁶⁵ it considered that the position should be clarified and recommended that:

Where a person who has been awarded provisional damages later dies because of the act which caused the injury for which damages were awarded, the damages awarded shall not bar an action relating to the death under the Fatal Accidents Act 1976; but any of the damages intended to compensate for future pecuniary loss shall be taken into account by the court when assessing any loss in relation to any dependency claim brought under the Fatal Accidents Act, where it is just to do so.⁶⁶

FOOTNOTES

1. Section 30b(6).

2. Section 30b(2).

3. Chief Justice King (SA), Letter to NSWLRC (5 December 1990). See also Ikonomos v Lesiuk (1973) 6 SASR 111 at 113.

4. Chief Justice King (SA), Letter to NSWLRC (5 December 1990). This general practice was confirmed by the Compulsory Third Party Department of the SGIC who represent the defendant in coming to such arrangements: R A W Daniell, Compulsory Third Party Department, SGIC, Letter to NSWLRC (19 November 1990).

5. See H Luntz, Assessment of Damages for Personal Injury and Death (3rd ed, Butterworths, Sydney, 1990) at para 1.3.5.

6. South Australia, Attorney General’s Department, Letter to NSWLRC (31 October 1990).

7. In Ikonomos v Lesiuk (1973) 6 SASR 111, the court stated that the language of s 30b does not place the onus on either the plaintiff or the defendant; the language of the section is at large and it is the duty of the court in every case to apply it and to weigh the whole of the circumstances.

8. See Revesz v Orchard [1969] SASR 336; Angelopoulos v Angelopoulos (1978) 80 LSJS 409.

9. For example, see Nathan v Vos [1970] SASR 455; Grabkowski v Majchrowski (1978) 19 SASR 290; Fedele v Lyell McEwin Health Services (SA SC, No SCGRG87-2616, 25 March 1994, unreported).

10. SA SC, No 2933 of 1987, 16 August 1990, unreported.

11. M J Tilbury, Civil Remedies: Principles of Civil Remedies, Volume 1 (Butterworths, Sydney, 1990) at para 3027.

12. Forst v Graves (1967) 52 LSJS 464.

13. Preston v Mercantile Mutual Insurance Co Ltd (1970) 55 LSJS 566.

14. Revesz v Orchard (1969) 54 LSJS 611.

15. Revesz v Orchard (1969) 54 LSJS 611.

16. Walker v Tugend (1981) 28 SASR 194 at 197.

17. For example see Haye v Braggins (1994) 175 LSJS 346, where the interim assessment was made in 1988 and the final assessment was made in 1994. In Beasley v Marshall (1985) 124 LSJS 458 the interim assessment was made in 1978; there was a trial for the final assessment in 1985, although the court was of the opinion that the matter was really suited to a further interim assessment.

18. See Brown v South Australia (1984) 114 LSJS 396.

19. Forst v Graves (1967) 52 LSJS 464 at 466; Nathan v Vos [1970] SASR 455 at 467-8.

20. This is despite the court’s view that lump sum damages in the particular case are unsatisfactory where there are so many ‘imponderables’: see Jackson CJ in Hall v Fare [1973] WAR 156 at 160.

21. One case is Chan v Mills (WA SC, No 1407/95, Steytler J, 3 November 1995, unreported) at 42; but see comments at 38-39, and those by Brinsden J in Farr v Schultz (1988) 1 WAR 94 at 117.

22. Musca v Colombini [1970] WAR 33.

23. See H Luntz, Assessment of Damages for Personal Injury and Death (3rd ed, Butterworths, Sydney, 1990) at para 1.3.3.

24. See paras 3.8-3.17.

25. RSC 1965 O 29 r 12.

26. RSC 1965 O 29 r 10.

27. Schott Kem Ltd v Bentley [1991] 1 QB 61.

28. See para 3.15.

29. See para 3.10.

30. RSC 1965 O 29 r 11(2); compare s 76E(4) of the Supreme Court Act 1970 (NSW).

31. The Supreme Court Practice 1995 (Sweet & Maxwell, London, 1994) at para 29/11/4.

32. England and Wales, Law Commission, Report on Personal Injury Litigation - Assessment of Damages (Law Com No 56, 1973) at paras 239-244. These recommendations were broadly endorsed by the Pearson Report in its recommendations for “declaratory judgments”: England and Wales, Royal Commission on Civil Liability and Compensation for Personal Injury (The Pearson Report), March 1978 at para 585.

33. Practice Direction (Provisional Damages: Procedure) [1985] 1 WLR 961, amended by Practice Direction (Provisional Damages: Amended Procedures) [1995] 1 WLR 507.

34. A recent description of the operation of the system and the procedure for claiming provisional damages may be found in J Wilkins, “Provisional damages 10 years on (1)” (1996) 140 Solicitors Journal 432; “Provisional damages 10 years on (2)” (1996) 140 Solicitors Journal 449.

35. Vincent v London Electricity (England, High Court, 18 March 1994, Mr Kay QC, unreported) noted in Current Law Year Book 1994 at para 1633.

36. Phillips v Ministry of Defence (England, Queen’s Bench, 87/NJ/2339, 29 July 1988, unreported).

37. Barratt v Furniss (England, Queen’s Bench, 13 October 1987, unreported) at 13, Wood v Cleaver (England, Birkenhead County Court, 2 August 1993, HHJ Crowe, unreported) noted in Current Law Year Book 1994 at para 1566.

38. Cronin v Redbridge London Borough Council, The Times, 20 May 1987.

39. Molinari v Ministry of Defence [1994] PIQR Q33.

40. So, in Walker v Brigham & Lowan (Hull) Ltd (England, CA, 29 May 1996, unreported) at 2, it was noted that the judge at first instance, in assessing damages, excluded any compensation for:

1. The risk of the plaintiff contracting mesothelioma.

2. The risk of the plaintiff contracting lung cancer.

3. The risk of the plaintiff’s asbestosis worsening to the point at which it will be proper to classify his disabilities as ‘severe’.

42. Willson v Ministry of Defence at 641-642.

43. Willson v Ministry of Defence at 642.

44. Willson v Ministry of Defence at 642.

45. Willson v Ministry of Defence at 644.

46. Practice Direction (Provisional Damages: Procedure) [1985] 1 WLR 961, amended by Practice Direction (Provisional Damages: Amended Procedures) [1995] 1 WLR 507.

47. [1985] 1 WLR 961 at para 1.

48. England and Wales, Law Commission, Structured Settlements and Interim and Provisional Damages (Law Com No 224, 1994) at para 5.4. But see, for example, Wood v Cleaver (Birkenhead County Court, 2 August 1993, HHJ Crowe, unreported) (noted in Current Law Year Book 1994, at para 1566) where the judge awarded general damages with an entitlement to return for further damages if epilepsy developed within five years of a certain date.

49. RSC O 37 r 8(3).

50. DP 25 at para 3.10.

51. England and Wales, Law Commission, Structured Settlements and Interim and Provisional Damages, (Law Com No 224, 1994) at paras 5.6-5.8.

52. England and Wales, Law Commission, Structured Settlements and Interim and Provisional Damages, (Law Com No 224, 1994) at paras 5.9-5.12.

53. [1994] PIQR Q33.

54. England and Wales, Law Commission, Structured Settlements and Interim and Provisional Damages, (Law Com No 224, 1994) at para 5.16.

55. England and Wales, Law Commission, Structured Settlements and Interim and Provisional Damages, (Law Com No 224, 1994) at paras 5.13-5.16.

56. England and Wales, Law Commission, Structured Settlements and Interim and Provisional Damages, (Law Com No 224, 1994) at paras 5.17-5.19.

57. England and Wales, Law Commission, Structured Settlements and Interim and Provisional Damages, (Law Com No 224, 1994) at para 5.20.

58. England and Wales, Law Commission, Structured Settlements and Interim and Provisional Damages, (Law Com No 224, 1994) at paras 5.21-5.23.

59. England and Wales, Law Commission, Structured Settlements and Interim and Provisional Damages, (Law Com No 224, 1994) at paras 1.7 and 5.22.

60. That is, Law Reform (Miscellaneous Provisions) Act 1934 (Eng) and Fatal Accidents Act 1976 (Eng), respectively

61. England and Wales, Law Commission, Structured Settlements and Interim and Provisional Damages (Law Com No 224, 1994) at paras 5.24-5.38.

62. See Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2)(a)(ii).

63. English Court of Appeal (Civil Division), 19 October 1990, Mustill, Butler-Sloss and Beldam LLJ, unreported.

64. Read v Great Eastern Railway Co (1868) LR 3 QB 555; McCann v Shephard [1973] 1 WLR 540.

65. England and Wales, Law Commission, Structured Settlements and Interim and Provisional Damages (Law Com No 224, 1994) at para 5.31.

66. England and Wales, Law Commission, Structured Settlements and Interim and Provisional Damages (Law Com No 224, 1994) at para 5.37.