COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Kelly(2) and Neaves(2) JJ.

CWDS
  Contract - Oral warranty - New motor vehicle - Written warranties given by
vehicle assembler and engine manufacturer - Whether additional oral warranty
given by dealer - Whether additional warranty covered economic loss.
  Damages - Assessment - Warranty by motor vehicle dealer that vehicle
reliable and suitable for particular work - Vehicle acquired by finance
company and leased to users - Vehicle defective and off road for substantial
periods - Eventual failure of rear suspension resulting in extensive damage
and personal injuries - Measure of damages considered.
  Practice and Procedure - Interest on damages - Action for breach of warranty
not commenced until some years after cause of action arose - Whether
circumstance that no entitlement to interest if proceedings instituted
promptly after cause of action arose relevant in considering amount of
interest to be awarded.
  Australian Capital Territory Supreme Court Act 1933 (Cth), s.53A

HRNG
CANBERRA
#DATE 13:3:1989
  Counsel for the appellants : Mr T.J. Higgins, Q.C.
                               and Mr P.L.R. Dodson
  Solicitors for the appellants:  Porter Pilkington
  Counsel for the respondent:  Mr I.A. Curlewis
  Solicitors for the respondent:  Snedden Hall & Gallop

ORDER
  The appeal be allowed.
  The judgment of the Supreme Court of the Australian Capital Territory given
on 15 July 1988 be varied by substituting for the order that judgment be
entered for the plaintiffs against the firstnamed defendant in the sum of
$29,116.70 an order that judgment be entered for the plaintiffs against the
firstnamed defendant in the sum of $65,227.65 and for the sum of $29,116.70
appearing secondly the sum of $65,227.65.
  The respondent pay the appellants' costs of the appeal.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
  The principal issue in this appeal is whether oral representations made by
Mr P. Donohue, an employee of the respondent ("Byrt Ford") to the firstnamed
appellant, Edmund Charles Gooch, with respect to the capability of a Ford
"Louisville" 8000 tipper truck, constituted a warranty given by the respondent
as to that capability.
2.  The Louisville truck which Byrt Ford had for sale was a new truck.  It
failed to stand up to the work to which Mr Gooch put it.  The engine was
replaced three times, the differential housing was replaced twice, the clutch
was replaced twice, the water pump was replaced, the shock absorbers were
replaced more than once, repairs were required to the injector pump, the fly
wheel, the pressure plate, the air compressor, the starter motor, the
kingpins, the tipping body and hoist and to instrument gauges. Finally, the
rear walking beam, a structural part of the rear suspension assembly,
fractured causing the vehicle to overturn.
3.  At the trial, a case was put on behalf of Byrt Ford that Mr Gooch had
consistently overloaded the truck.  Mr Gooch gave evidence that he had
endeavoured to keep the loads within the load carrying capacity of the truck,
namely 12.75 tonnes.  The learned trial Judge made no comment on this aspect
of the case, perhaps because of the nature of the issues that were raised by
the pleadings.  Paragraph 4 of the amended statement of claim alleged that
Byrt Ford, through Mr Donohue, had warranted and represented to the appellants
that the truck was:-
      "(a)  In proper and sound working order and
              free of mechanical defects;
       (b) capable of performing the work of
              carrying loads of soil and sand normally
              carried by the Firstnamed Plaintiff, the
              requirements of which work having been
              described to the Firstnamed Defendant by
              the Firstnamed Plaintiff."
Paragraph 3 of the amended defence denied the allegations in paragraph 4 of
the amended statement of claim but admitted that Mr Donohue had said that "the
vehicle was in good working order and was capable of carrying soil and sand."
Neither pleading made any reference to the weight of the loads of soil or sand
transported or to be transported by Mr Gooch.
4.  Mr Gooch gave evidence that he had met Mr Donohue at Yarralumla by
arrangement and arranged a demonstration of the truck to prove that it would
do the type of work that Mr Gooch wanted to do with it.
5.  Subsequently, Mr Donohue demonstrated the vehicle's capabilities at Mugga
Quarry.  Present at the demonstration were Mr Donohue, Mr Gooch and several
other persons including persons for whom the appellants were carting soil and
sand.
6.  Mr Gooch gave this evidence as to the demonstration:-
       "And what was done?---The truck was taken down
         to put under the loading bins to see what sort
         of weight and how it would go under the bins,
         and what we did was give us a demonstration of
         what the truck should have been capable of
         doing.
       And what was the truck loaded with?---Blue
         metal.
       What weight of blue metal?---About 18.6 ton.
       Are we talking there imperial measure or the
         --?---That would have been imperial measure.
       Yes, and was the truck driven?---Yes, Mr
         Donohue drove the truck with a load on.
       And did you accompany him?---I did.
       And can you recall where you went to?---Well,
         we went down to come out through under the
         loading bins and we had a problem because the
         front of the truck was too high to come out
         from under the bins so we had to come out, and
         then we took it for a run around up through
         the quarry and up over the general type pulls
         that it would be going out to see what it was
         capable of doing.
       And as far as the performance of the truck was
         concerned, were you happy with it?---I did ask
         at the time - I was not quite happy with it
         because the motor size was smaller than what I
         had been running and asked could I have a 210
         instead of the one that I had - the one that I
         ended up buying.
       You asked for a - what, does that mean a
         greater horsepower, does it?---A bigger
         horsepower motor, yes.
       So that was one thing you asked about, was
         increasing the capacity of the motor?---That
         is correct.
       Was there anything else you asked for as a
         modification?---Well, when we discussed it and
         Mr Donohue said that he could not supply a
         210, then we discussed the alterations and
         modifications that would have to be made to
         the truck to make it serviceable.
       And that is serviceable for your
         purposes?---That is correct.
       And what were those modifications that you
         listed?---The truck was built with a loading
         rack over the top of the cab which
         unfortunately was too high to go under the bin
         and to go on to the spreaders which was - the
         maxi boosters on the back protruded too far
         out.
       Yes, now these boosters on the back, they are
         brake boosters, are they not?---That is
         correct; they were double maxis.
       And there are various types of brake boosters
         customarily fitted to trucks?---That is
         correct.
       And you asked that it be changed to the more
         squat type of brake booster than the extended
         one?---Yes.
       And I take it you asked for the vehicle to be
         lowered?---Yes.
       Were there any other modifications that you
         asked Mr Donohue to arrange?---That was the
         extent of what had to be done for service.
       And what did he tell you then about whether
         that could be done?---He suggested he would
         ring Byrt Ford in Wollongong and see if the
         modifications could be done for us."
7.  Mr Gooch gave evidence that subsequently Mr Donohue informed him that Byrt
Ford would agree to the modifications for the truck but that Byrt Ford would
not be able to supply a truck with a 210 motor, the larger motor, for at least
three months.  Mr Gooch then gave this evidence:-
       "What did you say to him?---That I wanted to
         get out of the truck that I had because it was
         coming to the end of its natural term and I
         would prefer to start with a new one.
       Yes.  And did he tell you something as a
         result of that?---Well, he said, 'We can do a
         good deal on this truck now.  It is ready to
         go', and that if I wished to do the deal we
         could make arrangments for some finance.
       Yes.  And would you continue with the
         conversation please, if you responded to
         that?---I had a phone call - or I said, you
         know, we would think it over, first of all, as
         to whether or not it was suitable."
8.  Mr Gooch also gave this additional evidence respecting the demonstration
at Mugga Quarry:-
       "And was anything said about whether the truck
         would be able to do the job you wanted?---He
         assured me up in the quarry that the truck was
         capable of doing the work that I was doing.
         That was the day that we was discussing the
         fact that I would have liked a bigger motor
         and he assured me after loading the truck and
         weighing it off and that the truck was quite
         capable of carrying the work that I wanted.
       And did you accept what he told you about the
         truck's capabilities?---I think my comments
         were the fact that I did want something that
         was going to be reliable and was going to
         carry out the type of work that I was doing
         without being off the road and broken down and
         what not.
       Did you accept what he told you about the
         capability of this truck to perform as you
         wished?---I did, that was one of the things
         that made us agree to buy it."
9.  It will be noted that, in the above, Mr Gooch gave no evidence as to any
conversation respecting carrying capacity.  The truck had been loaded with
18.6 tons of blue metal at the Mugga Quarry.  Yet there was no evidence of any
discussion between Mr Gooch and Mr Donohue at the quarry as to what weight the
vehicle could carry.  Mr Gooch gave this evidence in cross-examination:-
       "You did get some specifications relating to
         the truck, did you not, when you picked it
         up?---After I had taken delivery, yes.
       18 tonnes you would recognize after you picked
         up the specifications was a great overload to
         put on the truck, was it not?---12.75 was the
         legal weight."
Mr Gooch did not make any complaint that the legal load of the truck was
substantially less than the load which was the subject of the demonstration at
the Mugga Quarry.  He said:-
       "... I had the truck weighed off with a legal
         load, and the spring rates were painted on the
         chassis as to approximately where that load
         was, and that is how I loaded the truck."
and:-
       "All I can tell you, sir, is that I was guaranteed
         12 and three quarter tons when I bought ---"
10.  As I have said, the trial Judge did not deal with the issue of
overloading for the reason, I assume, that the appellants' case was not a case
that it had been warranted that the truck could carry 12.75 tonnes of soil or
sand but in fact could not do so without breaking down.  The case as pleaded
and as put in Mr Gooch's evidence was that it had been warranted that the
truck could carry out without breaking down the type of work demonstrated at
the Quarry. His Honour rejected the view that anything that was said by Mr
Donohue amounted to such a warranty.  I would not draw any different
conclusion.
11.  I respectfully agree with the following statement by the trial Judge of
the legal principles to be applied:-
       "To create a warranty no special form of words
         is necessary.  It must be a collateral
         undertaking forming part of the contract by
         agreement of the parties, express or implied,
         and must be given during the course of the
         dealing which leads to the bargain and should
         then enter into the bargain as part of it (De
         Lassalle v. Guildford (1901) 2 KB 215 per AL
         Smith M.R. at 221).  The requirements for
         establishing a collateral warranty were stated
         by the High Court in J.J. Savage & Sons Pty
         Ltd v. Blakney (1970) 119 CLR 435 at 442:
          'The Full Court seems to have thought it
              sufficient in order to establish a
              collateral warranty that without the
              statement as to the estimated speed the
              contract of purchase would never have
              been made.  But that circumstance is, in
              our opinion, in itself insufficient to
              support the conclusion that a warranty
              was given.  So much can be said of an
              innocent representation inducing a
              contact.  The question is whether there
              was a promise by the appellant that the
              boat would in fact attain the stated
              speed if powered by the stipulated
              engine, the entry into the contract to
              purchase the boat providing the
              consideration to make the promise
              effective.  The expression in De Lassalle
              v. Guildford that without the statement
              the contract in that case would not have
              been made does not, in our opinion,
              provide an alternative and independent
              ground on which a collateral warranty can
              be established.  Such a fact is but a
              step in some circumstances towards the
              only conclusion which will support a
              collateral warranty, namely, that the
              statement so relied on was promissory and
              not merely representational.'
       That passage was applied by the High Court in
         Ross v. Allis-Chalmers Australia Pty Ltd.
         (1980) 32 ALR 561."
12.  It is worth noting the discussion by Barwick C.J., Kitto, Menzies, Owen
and Walsh JJ. in J.J. Savage & Sons Pty Ltd v. Blakney (1970) 119 CLR 435 at p
443 of the facts in that case:-
       "In our opinion, there is nothing in the
         evidence before the trial judge to support the
         view that the respondent took either the first
         or second of these courses: the only
         conclusion open upon that evidence was that
         the respondent took the third course; he
         accepted the appellant's estimate of what the
         boat would do under the power of the 4/53 G.M.
         diesel as sufficient to found his (the
         respondent's) own judgment as to the powering
         of the vessel.  As he said 'I prefer upon your
         advice the G.M. 4/53'.  That the statement
         actually made by the appellant was intended to
         have some commercial significance upon a
         matter of importance to the respondent can be
         conceded; that the respondent was intended to
         act upon it, and that he did act upon it, is
         clearly made out.  But those facts do not
         warrant the conclusion that the statement was
         itself promissory."
13.  I would also refer to remarks of Gibbs C.J. in his dissenting judgment in
Hospital Products Ltd v. United States Surgical Corporation & Ors (1984) 156
CLR 41 where his Honour said at pp 61-2:-
       "A representation made in the course of
         negotiations which result in a binding
         agreement may be a warranty - i.e., it may
         have binding contractual force - in one or two
         ways: it may become a term of the agreement
         itself, or it may be a separate collateral
         contract, the consideration for which is the
         promise to enter into the main agreement.  In
         either case the question whether the
         representation creates a binding contractual
         obligation depends on the intention of the
         parties.  In J.J. Savage & Sons Pty. Ltd. v.
         Blakney (1970) 119 CLR 435, at p 442 and
         Ross v. Allis-Chalmers Australia Pty. Ltd.
         (1980) 55 ALJR 8 at pp 10, 11; 32 ALR
         561, at pp 565, 567, it was said that a
         statement will constitute a collateral
         warranty only if it was 'promissory and not
         merely representational', and it is equally
         true that a statement which is 'merely
         representational' - i.e., which is not
         intended to be a binding promise - will not
         form part of the main contract.  If the
         parties did not intend that there should be
         contractual liability in respect of the
         accuracy of the representation, it will not
         create contractual obligations.  In the
         present case Mr. Blackman, who made his
         statements fraudulently, had, of course, no
         intention that they should amount to
         contractual undertakings, but he could not
         rely on his secret thoughts to escape
         liability, if his representations were
         reasonably considered by the persons to whom
         they were made as intended to be contractual
         promises, and if those persons intended to
         accept them as such.  The intention of the
         parties is to be ascertained objectively; it
         'can only be deduced from the totality of the
         evidence': Heilbut, Symons & Co. v. Buckleton
         (1913) AC 30, at p 51.  In other words, as
         Lord Denning said in Oscar Chess Ltd. v.
         Williams (1957) 1 WLR 370, at p 375; (1957)
         1 All ER 325, at p 328:
           'The question whether a warranty was
              intended depends on the conduct of the
              parties, on their words and behaviours,
              rather than on their thoughts.  If an
              intelligent bystander would reasonably
              infer that a warranty was intended, that
              will suffice.'
       The intelligent bystander must however be in
         the situation of the parties, for 'what must
         be ascertained is what is to be taken as the
         intention which reasonable persons would have
         had if placed in the situation of the
         parties':  Reardon Smith Line v. Hansen-Tangen
         (1976) 1 WLR 989, at p 996; (1976) 3 All
         ER 570, at p 574."
14.  In my opinion, the statements made by Mr Donohue were too general to
constitute warranties.  To be a warranty, that is to say a legally binding
promise, a statement must have sufficient clarity and certainty to be
understood as a promise and to be so enforced.
15.  The appellants pleaded a warranty that the truck was "in proper and sound
working order and free of mechanical defects".  The defence admitted that Mr
Donohue said that the vehicle was "in good working order".  But there was no
evidence as to any such conversation and, as the vehicle was a new vehicle, it
is unlikely that Mr Gooch wanted or received any warranty as to this.  What
concerned Mr Gooch was whether the truck could satisfactorily do the work
theretofore done by the appellants' Fiat truck.
16.  The statement of claim also alleged a warranty that the truck was
"capable of performing the work ... the requirements of which work having been
described by the firstnamed defendant by the firstnamed plaintiff".  This
pleading itself was uncertain for it did not state what were the requirements
which had been described or of which the vehicle was warranted to be capable.
17.  Any relevant assurances given by Mr Donohue that the truck could do the
work that Mr Gooch was doing were not promissory in nature.  They were too
vague or general to have that character.  The appellants' case was not put on
the basis that the truck was incapable of carting soil and sand.  It could do
that.  What it did not do was stand up to the work to which Mr Gooch put it.
But Mr Gooch did not specify or quantify to Mr Donohue the work capacity that
he required of the truck.  At the demonstration, the truck was loaded with
18.6 tons of stone.  Yet it was clear that a capacity to carry loads of 18.6
tons was not warranted for Mr Gooch in cross-examination conceded that he was
guaranteed a 12.75 tonnes carrying capacity.
18.  It is to be noted that the transaction which took place was not a sale by
description but a transaction involving a particular vehicle.  Mr Gooch did
not state his requirements to Mr Donohue and leave it to Mr Donohue to produce
a vehicle meeting the description.  Rather, Byrt Ford had this vehicle for
sale.  The decision as to whether it met Mr Gooch's requirements was a
decision for him. Mr Donohue was asked to demonstrate the vehicle to the
satisfaction of Mr Gooch.  This he did.  A number of other persons who were
concerned with the transport of the soil and sand were also present, persons
who presumably had some experience in the field.  When Mr Donohue made it
clear that he could not supply a truck with the larger 210 motor which Mr
Gooch preferred, Mr Gooch said that he would think the matter over, as to
whether or not the truck on offer was suitable for his purposes.  Mr Gooch
decided to go ahead with the transaction only after he had considered the
matter and decided that the truck would meet his needs.
19.  Accordingly, circumstances were not present such as, in the case of the
sale of goods, might lead to an implied condition as to quality and fitness.
See for example s.19 of the Sale of Goods Ordinance (1954)(ACT).  It does not
seem to me that there was anything in the terms of what was said or in the
circumstances in which the discussions were held which gave to Mr Donohue's
representations the quality of collateral warranties or promises.
20.  The trial Judge said:-
       "It seems to me to be implicit in the
         transaction that so far as mechanical defects
         and capacity of the vehicle were concerned,
         Byrt Ford would simply rely upon the written
         warranties from Ford and Caterpillar.  They
         would be the type of warranties to be expected
         in the purchase of a new vehicle and it would
         be unnecessary for Byrt Ford, as the vendor of
         the vehicle, to warrant additional warranties
         in the same or similar terms to the written
         warranties of Ford and Caterpillar."
His Honour was there pointing out that the discussions were taking place
against the background that both parties knew that there would be written
specifications relating to the vehicle and warranties with respect to failure.
Such a background does not, of course, exclude the existence of a collateral
warranty.  But in that context, it would be likely to be understood that any
collateral warranty, being promissory, should set out clearly what was
warranted.  As the pleading indicates, no such clear promise was made.
21.  For these reasons, I think there was no warranty given by Mr Donohue.
22.  Mr T.J. Higgins Q.C., with whom Mr P.L. Dodson of counsel appeared for
the appellants, further submitted that a warranty must be found as the
interlocutory judgment entered by consent had conceded one of the claims in
the action based on the allegation that the rear walking beam of the vehicle
had been defectively cast and that the rear walking beam had been of
inadequate weight bearing capacity and an inadequate shock resistant capacity.
These two particulars of mechanical defects had been given under paragraph 7
of the amended statement of claim which alleged a breach of the warranty and
representations alleged in paragraph 4 of the amended statement of claim.  No
doubt there may be some question of inconsistency between the interlocutory
judgment entered on this part of the claim and the continuation of the action
with respect to other aspects of the claim.  But the inconsistency was a
matter in which the parties joined, for the interlocutory judgment was entered
by consent.  I do not think that the interlocutory judgment assists a decision
as to whether or not, on the evidence as to the disputed aspects of the case,
a collateral warranty as alleged was established.
23.  Mr Higgins also relied upon the principle of estoppel by judgment.  He
relied upon Blair & Ors. v. Curran & Ors. (1939) 62 CLR 464 at pp 531-2 and
Chamberlain v. Deputy Commissioner of Taxation (1988) 78 ALR 271.  However, no
defence of estoppel was raised at the trial and the interlocutory judgment was
entered by consent and in the light of the understanding that the case would
proceed on other aspects of the claim.  For this reason, I think it is not
necessary to consider this ground of appeal further.
24.  There are two grounds of appeal with respect to damages.  The first was
that his Honour erred in finding that the economic loss to the appellant
should be limited to the immediate loss incurred by the appellants on the
damage to their vehicle, namely $17,000.  The trial Judge said:-
       "The plaintiffs did not claim any lack of
         capacity to lease another truck.  Rather I am
         left with the impression that they were so
         disenchanted and disappointed with their
         experience with the lost truck that they
         decided to move out of the trucking business."
I agree with the trial Judge that the ordinary rule as to damages should apply
and that no such circumstances were shown as would justify a substantial
allowance for loss of profits. However, I agree with Kelly and Neaves JJ. that
$1600 should be allowed for the period of one month during which the lease of
another vehicle might have been arranged.
25.  The other ground of appeal relates to interest.  On this aspect I also
agree with the views expressed by Kelly and Neaves JJ and would allow interest
at 14% for 9 1/2 years. Making some reduction to allow for the damages with
respect to personal injury, that would come to $27,000.
26.  For these reasons I would increase the damages and interest awarded by
$18,600 but would otherwise dismiss the appeal.  I would order that the
respondent pay one-half of the appellants' costs.

JUDGE2
  At the time of the happening of the events with which this appeal is
concerned and for some time prior to the happening of those events, Edmund
Charles Gooch and Lorraine Kerry Gooch  ("the appellants") carried on, in
partnership, a business of general haulage contractors.  One of the assets of
the partnership was a Fiat truck.  A substantial part of the business
consisted in the carriage, on a continuing basis pursuant to an oral agreement
between the appellants and one Gavin Thomas, of quantities of soil, sand,
gravel and blue metal from various localities in New South Wales to premises
at Hume in the Australian Capital Territory where Mr Thomas carried on
business under the name "Thomo's Soil Yard".  From time to time the appellants
carried sand, soil and other goods from the premises at Hume to the premises
of the purchasers of those goods.  The arrangement with Mr Thomas included a
provision that he would supply fuel and tyres for the appellants' vehicle, the
cost to be deducted from the moneys otherwise payable to the appellants in
respect of the carriage by them of soil, sand, gravel and blue metal pursuant
to the oral arrangements to which reference has been made.
2.  By the latter half of 1977, the Fiat vehicle was reaching the end of its
useful life.  In August of that year Mr Gooch inspected a new Ford Louisville
series LNT 8000 diesel truck with aluminium tipping body which was displayed
for sale at the premises of a motor vehicle dealer trading under the name
Lawton Ford at Queanbeyan.  The vehicle was being displayed on behalf of Byrt
Ford Pty Limited ("the respondent"), a motor vehicle dealer carrying on
business at Wollongong.  In due course Mr Gooch had a telephone conversation
with a Mr Pat Donohue, admitted to be a servant or agent of the respondent,
concerning the purchase of the vehicle.  As a result of that conversation a
meeting between Mr Gooch and Mr Donohue was arranged.
3.  The meeting took place on 29 August 1977.  Mr Donohue and Mr Gooch
discussed whether the vehicle would be suitable for the type of work in which
the appellants were engaged and arrangements were made for a demonstration of
the vehicle's capability to do that work.  The demonstration, at which Mr
Gooch and Mr Donohue were present, began at the Mugga Quarry in the Australian
Capital Territory.  The vehicle was loaded with a quantity of blue metal and
was driven for some distance in a loaded condition by Mr Donohue with Mr Gooch
as a passenger. The demonstration showed that some modifications to the
vehicle were necessary to make it suitable for the appellants' purposes.  Mr
Gooch gave evidence, which was accepted by the trial judge, of the
conversation he had with Mr Donohue on the occasion of the demonstration.  Mr
Gooch was not cross-examined upon that evidence and Mr Donohue was not called
as a witness. Mr Gooch's evidence was as follows:
         "Q. And was anything said about whether the
               truck would be able to do the job you
               wanted?
          A. He assured me up in the quarry that the
               truck was capable of doing the work that
               I was doing.  That was the day that we
               was discussing the fact that I would
               have liked a bigger motor and he assured
               me after loading the truck and weighing
               it off and that that the truck was quite
               capable of carrying the work that I
               wanted.
          Q. And did you accept what he told you
               about the truck's capabilities?
          A. I think my comments were the fact that I
               did want something that was going to be
               reliable and was going to carry out the
               type of work that I was doing without
               being off the road and broken down and
               what not."
Mr Gooch also gave evidence that he accepted what Mr Donohue had told him
about the capability of the truck to perform as he wished and that "that was
one of the things that made us agree to buy it".
4.  A few days later Mr Donohue informed Mr Gooch that the respondent could
not then supply a motor with a higher horsepower rating but that the other
modifications which had been discussed would be carried out.  There was also
some discussion concerning the means by which the purchase of the vehicle by
the appellants might be financed.
5.  Mr Gooch subsequently informed Mr Donohue that the appellants wished to
acquire the vehicle.  Mr Donohue informed him that arrangements could be made
for the vehicle to be leased to the appellants by Industrial Acceptance
Corporation Limited, for which purpose that company would acquire the vehicle
from the respondent.  The arrangements included the acceptance by the
respondent of the appellants' Fiat truck as a trade-in at an agreed valuation.
6.  A lease agreement, which bears date 1 September 1977, was entered into
between Industrial Acceptance Corporation Limited (subsequently Citicorp
Australia Limited) and the appellants for the lease of the vehicle to them.
The period of the lease was shown as 48 months computed from 1 September 1977,
the rent instalments being $1207.57 per month payable in advance.  The
appraisal value of the vehicle, described as being a pre-estimate of the value
of the vehicle at the end of the period of the lease, was shown at $10,000.
Mr Donohue was present at the office of Industrial Acceptance Corporation
Limited when the agreement was signed by the appellants.
7.  Under the terms of the lease agreement, in which Industrial Acceptance
Corporation Limited is referred to as "the Lessor" and the appellants are
referred to as "the Lessee", the obligation to pay rent was to continue
notwithstanding the occurrence of any defect in, or breakdown of, the vehicle
or any damage to it (cl. 3(c)). The appellants covenanted and agreed with the
Lessor to pay interest at the rate of 20 per cent per annum on any moneys
payable under the lease which might from time to time be overdue.  Provision
was made for the Lessee to indemnify the Lessor against loss arising from the
destruction or loss of the vehicle, the measure of the loss to the Lessor
being the then outstanding rent, rebated as provided in the agreement,
together with the appraisal value of the vehicle, less the value (if any) of
the salvage (cl.4(c)).
8.  Thereafter, Mr Donohue drove the new vehicle to the respondent's premises
at Wollongong so that the agreed modifications could be effected.  By
arrangement, Mr Gooch drove the Fiat truck to Wollongong and, after the
modifications had been carried out, took delivery of the new vehicle.
9.  Although Mr Gooch gave evidence that he did not receive a copy of the
warranty documents until much later, written warranties were given by Ford
Sales Company of Australia Limited in respect of the vehicle and by
Caterpillar of Australia Limited in respect of the diesel engine.  The
warranty given by Ford Sales Company of Australia Limited was that it would,
subject to certain terms and conditions to which it is unnecessary to refer,
for a specified period, repair or replace, in some cases free of charge and in
other cases upon payment of the charge referred to in a schedule of charges,
any part of the vehicle (with certain exceptions) found to be defective in
factory workmanship or materials under normal use and operation within
Australia.  The warranty given by Caterpillar of Australia Limited was that,
subject to certain conditions, the engine fitted to the vehicle was free from
defects in material and workmanship for 160,000 kilometres or 3,600 hours or
24 months, whichever should first occur after the delivery of the engine to
the initial user.  Both warranties expressly excluded any liability for loss
of time or other economic loss.
10.  On numerous occasions between 1 October 1977 and 7 July 1979 mechanical
defects in the vehicle became apparent, necessitating the vehicle being off
the road for repairs with resultant disruption to the appellants' business.
In summary, the evidence established that the engine was replaced on three
occasions, two differential housings were replaced, the clutch was replaced
twice, the water pump was replaced, shock absorbers were replaced a number of
times and repairs were carried out to the injector pump, the flywheel, the
pressure plate, the air compressor, the starter motor, the oil pressure gauge,
the king pins, the tipping body and hoist and the instrument gauges. In the
majority of instances repairs and replacements were carried out under the
warranties referred to above.  In addition payments of $368.40 and $2,500 were
made to the appellants by Ford Motor Company of Australia Limited and
Caterpillar of Australia Limited respectively.  The evidence shows that, as a
result of the defects, the vehicle was off the road for a total of 84 2/3 days
prior to 7 July 1979.  The evidence also shows that the appellants incurred
expenditure totalling $1,102 in making repairs to the vehicle which were not
accepted as being covered by the above warranties.
11.  On 7 July 1979 Mr Gooch was driving the vehicle laden with soil from
Bredbo to Hume.  While travelling north on the Monaro Highway, the rear
walking beam, a structural member of the rear suspension assembly of the
vehicle, fractured, resulting in the vehicle coming to rest on its side.  The
vehicle was extensively damaged and Mr Gooch suffered personal injuries in the
accident.
12.  By arrangement between the appellants and Citicorp Australia Limited, the
vehicle in its damaged condition was surrendered to the company which arranged
for its sale. Sale of the vehicle was effected on 10 September 1979, the sale
price being $14,364.
13.  Negotiations between the appellants and representatives of Ford Motor
Company of Australia Limited and of Caterpillar of Australia Limited failed to
satisfy the appellants and on 12 October 1982 they instituted proceedings in
the Supreme Court of the Australian Capital Territory.  In those proceedings
the appellants sued other parties as well as the respondent, the latter being
the firstnamed defendant.  However, when the proceedings came on for hearing
and before any evidence was adduced, the trial judge was informed that
agreement had been reached between the parties in relation to certain of the
matters in dispute.  As a result, judgment was, by consent, entered for the
parties other than the respondent against the appellants with no order as to
costs.  It  was also ordered, by consent, that interlocutory judgment be
entered for the appellants against the respondent "for damages to be assessed
in respect of the breach alleged in paragraph 7(b) and (c) of the amended
statement of claim relating to the walking beam and the accident of the 7th
day of July 1979".
14.  By paragraphs 4, 5, 6 and 7 of their amended statement of claim the
appellants pleaded:-
         "4. By an oral collateral agreement entered
         into by and between the Plaintiffs and the
         Firstnamed Defendant by its servant or agent,
         on or about the 1st day of September, 1977, in
         consideration that the Plaintiffs entered into
         the agreement with the Lessor set out in
         Paragraph 3 herein, the Firstnamed Defendant
         by its servant or agent expressly warranted
         and represented to the Plaintiffs that the
         vehicle was:-
         (a) In proper and sound working order and
              free of mechanical defects;
         (b) capable of performing the work of
              carrying loads of soil and sand normally
              carried by the Firstnamed Plaintiff, the
              requirements of which work having been
              described to the Firstnamed Defendant by
              the Firstnamed Plaintiff.
         5. In reliance upon and pursuant to the said
         warranty and representation, the Plaintiffs
         were induced to enter into the said Lease
         agreement with the Lessor on the 5th day of
         September, 1977.
         6.  At all material times the Firstnamed
         Defendant well knew the terms and conditions
         of the Lease agreement into which the
         Plaintiffs entered with the Lessor.
         7.  In breach of and contrary to the said
         warranty and representation, the vehicle was
         not in proper and sound working order and free
         from mechanical defects, nor was it capable of
         performing the work of carrying loads of soil
         and sand as described and required by the
         Firstnamed Plaintiff.
         Particulars of Mechanical Defects
         (a) Multiple defects of the lubrication
              system producing damage to four motors,
              defective instrument gauges, defective
              air compressor and water pump, defective
              tail light and mudguard arms and other
              defects, further particulars of which
              will be supplied prior to trial.
         (b) Rear walking beam defectively cast.
         (c) Rear walking beam of inadequate weight
              bearing capacity and inadequate shock
              resistant capacity."
15.  By its defence, the respondent admitted that its agent had said "that the
vehicle was in good working order pand was capable of carrying soil and sand"
but otherwise denied, or did not admit, the allegations made by the
appellants.
16.  On 15 July 1988, the Supreme Court ordered that judgment be entered for
the appellants against the respondent in the sum of $29,116.70.  The component
parts of that sum were -
         Damages for personal injuries
         suffered by Mr Gooch in the
         accident on 7 July 1979             $2,116.70
         Damages arising from the
         mechanical failure of the rear
         walking beam                        17,000.00
         Interest                            10,000.00
                                            $29,116.70
The appellants' claim for economic loss in respect of the periods between 1
October 1977 and 7 July 1979 when the vehicle was off the road because of its
defective condition was dismissed.  In this connection, the trial judge said:
      "Accepting his (Mr Gooch's) evidence on the
       subject, it would nevertheless not be
       appropriate, in my view, to class Mr Donohue's
       assurances about the suitability of the vehicle
       for the plaintiff's purposes and the
       demonstration of its capacity as amounting to
       the express warranty alleged by the plaintiffs.
       Those assurances and demonstration no doubt
       relate to the proper and sound working order of
       the vehicle and that it was free of mechanical
       defects, and further that it was capable of
       performing the sort of carrying work for which
       the plaintiffs intended to use the truck.  It
       seems to me to be implicit in the transaction
       that so far as mechanical defects and capacity
       of the vehicle were concerned, Byrt Ford would
       simply rely upon the written warranties from
       Ford and Caterpillar.  They would be the type of
       warranties to be expected in the purchase of a
       new vehicle and it would be unnecessary for Byrt
       Ford, as the vendor of the vehicle, to warrant
       additional warranties in the same or similar
       terms to the written warranties of Ford and
       Caterpillar.  Especially is that so if the
       warranty extended to economic loss which was
       expressly excluded by Ford and Caterpillar in
       the written warranties.  The plaintiffs' claim
       for economic loss is therefore dismissed."
17.  The amount of $17,000.00 awarded by the trial judge represented, in round
figures, the difference between the value of the vehicle immediately before
the accident on 7 July 1979 ($31,000 or $32,000) and the price at which the
damaged vehicle was sold by Citicorp Australia Limited ($14,364).  The trial
judge dismissed claims by the appellants to recover from the respondent the
amount (agreed between the parties to be $8,444.75 at the date of trial) for
which the appellants remained liable to Citicorp Australia Limited under the
lease agreement and an amount on account of loss of profits during what would
have been the expected working life of the vehicle had the accident of 7 July
1979 not occurred.  His Honour, in rejecting these claims, accepted a
submission on behalf of the respondent that the appellants could have leased
another truck to replace the lost vehicle but had failed to do so and had, in
fact, decided to move out of the trucking business.
18.  The trial judge awarded interest on the damages for personal injuries and
the damages for loss of the truck, totalling $19,116,70.  However, his Honour
thought that a lump sum should be awarded in lieu of a calculation of interest
and he awarded the sum of $10,000.
19.  The appellants have appealed from the judgment, claiming that the amount
awarded should be increased by -
         (a) an amount representing the loss of
               profits due to the vehicle being off the
               road because of its defective condition
               on various dates between 1 October
               1977 and 7 July 1979;
         (b) the amount of $1,102, being expenditure
               incurred by the appellants in making
               repairs to the vehicle which were not
               accepted as being covered by the
               manufacturer's warranties to which
               reference has been made;
         (c) an amount representing loss of profits
               after 7 July 1979 calculated at the
               rate of $1,600 per month; and
         (d) an additional amount by way of interest.
20.  The appellants challenge the conclusion of the trial judge that it was
not appropriate "to class Mr Donohue's assurances about the suitability of the
vehicle for the (appellants') purposes and the demonstration of its capacity
as amounting to the express warranty alleged by the (appellants)".  To sustain
their challenge, the appellants must satisfy the Court that the assurances
found by the trial judge to have been given by Mr Donohue to Mr Gooch,
considered in the context in which they were given and in the light of the
totality of the evidence, were reasonably regarded by Mr Gooch as contractual
promises binding upon the respondent, as statements promissory and not merely
representational, and were accepted by him as such, his entry into the leasing
agreement providing the consideration to make the promises effective.  J.J.
Savage & Sons Pty Ltd v. Blakney (1970) 119 CLR 435 at p 442 and the
statements by Gibbs CJ in his dissenting judgment in Hospital Products Limited
v. United States Surgical Corporation and Others (1984) 156 CLR 41 at pp 61-2.
The appellants must have relied on the assurances.  The extent of such a
reliance was considered by the Privy Council in Ashford Shire Council v.
Dependable Motors Pty Ltd (1960) 104 CLR 139.  At pp 146-7, Lord Reid said:
        "He must have realized - any reasonable man
         would have realized - that in making his
         report Mr Bowman intended to rely on the
         assurances which (the managing director of the
         respondent) had given, and he had no reason to
         suppose that the appellant was not so relying
         when it placed its order.
         ... The respondent founds on well-known
         statements of the law.
         'Such a reliance must be affirmatively shown:
         the buyer must bring home to the mind of the
         seller that he is relying on him in such a way
         that the seller can be taken to have
         contracted on that footing.  The reliance is
         to be the basis of a contractual obligation.'
         (Cammell Laird & Co. v. The Manganese Bronze
         and Brass Co. ((1934) AC 402) per Lord Wright
         (at p 423).  'The reliance in question must be
         such as to constitute a substantial and
         effective inducement which leads the buyer to
         agree to purchase the commodity' (Medway Oil
         and Storage Co. v. Silica Gel Corporation
         ((1928) 33 Com Cas 195), per Lord Sumner (at
         p 196). ...
         ... There is no doubt that the making known to
         the seller of the buyer's particular purpose
         may take place during negotiations which
         precede the making of the contract of sale and
         that there need be no reference to this in the
         contract itself.  What is necessary is that
         the buyer shall contract in reliance on what
         took place during the negotiations, and
         that his reliance at the time when the
         contract is made 'is a matter of reasonable
         inference to the seller and to the Court' (per
         Lord Sumner in Manchester Liners Ltd. v. Rea
         Ltd. ((1922) 2 AC 74, at p 90))."
21.  The evidence presents a number of significant features.  Mr Gooch had
made known to Mr Donohue in some detail the purposes for which the vehicle was
required.  His concern to discuss with Mr Donohue the capability of the
vehicle, leading as it did to the demonstration being arranged, reflected his
desire to be satisfied, before the appellants proceeded to acquire the
vehicle, that a truck of a different manufacture from that which he had
previously been using and with a motor of lower horsepower rating than he
thought necessary would be suitable in all respects to carry out the work
required of it and could be relied upon to perform satisfactorily.  These were
matters of real importance to the appellants.  That this was the position must
have been apparent to Mr Donohue.  He was put forward by the respondent as a
person who could speak with authority as to the characteristics and qualities
of the vehicle. Clearly, the statements he made were statements as to matters
of fact, not opinion, and were intended to induce, and did induce, the
appellants to decide to acquire the vehicle, a decision which was made within
a very short time after the conversation took place.
22.  Precise details of the terms of the warranty were neither pleaded nor
given in evidence but no detailed cross-examination was directed to Mr Gooch
in an endeavour to suggest that what he had said concerning the assurances
given him by Mr Donohue was untrue.  In response to paragraph 4 of the amended
statement of claim the respondent admitted that its agent (who could have been
none other than Mr Donohue) had said that the vehicle was in good working
order and was capable of carrying soil and sand.  Obviously such a statement
could not relate merely to the vehicle's capacity to carry modest load of soil
and sand but must have related to its capacity to carry loads up to its
specified weight bearing capacity.  The specifications showed, as appears from
the evidence, that the vehicle's load bearing capacity was 12.75 tonnes.
23.  When the vehicle was test loaded and driven by Mr Donohue before the
appellants entered into the leasing agreement it was loaded with 18.6 tonnes
and driven.  Any modifications made to it had nothing to do with its weight
bearing capacity and, in our opinion, that test, none of the details of which
was denied, or even cross-examined upon, was entirely consistent with the
statement that the vehicle was capable of doing the work for which the
appellants required it subject, of course, to its not being overloaded.
24.  The respondent did claim in its defence that the appellants had
contributed to their damage by overloading the vehicle.  Mr Gooch was
cross-examined on this question but made no concessions that overloading had
occurred and no evidence to the contrary was led by the respondent.
25.  The learned trial Judge's conclusion that there was no warranty given
was, of course, a finding on a question of fact and therefore not lightly to
be set aside.  But it was an inference drawn from facts found by him and not
disputed and this court is therefore in as good a position as he to decide on
the proper inference to be drawn from those facts and entitled, indeed bound,
after giving due weight to his conclusion, to come to its own.  Warren v.
Coombes (1979) 142 CLR 531.
26.  In Dependable Motors Pty Ltd v. Ashford Shire Council  (1959) 101 CLR
265, Dixon CJ said in his dissenting judgment at p 271:
         "I would imagine that if the liability of the
         seller in such circumstances were governed by
         the common law and not by the statutory
         formula a simple finding that the vendor sold
         the implement for the purpose of road making
         by the vendee would spell a warranty of
         fitness for that purpose.  At all events that
         is what Best CJ thought.  'If a man sells an
         article, he thereby warrants that it is
         merchantable - that it is fit for some purpose
         ....  If he sells it for a particular purpose,
         he thereby warrants it fit for that purpose':
         Jones v. Bright ((1829) 5 Bing 533, at p 544
         (130 ER 1167, at p 1172)).  Best CJ stated
         the position simply.  While the rule was
         affirmed without much loss of its simplicity
         of form, the underlying principle was
         expounded by Brett LJ for the Court of Appeal
         in Randall v. Newson ((1877) 2 QBD 102).  With
         perhaps more flexibility than the code allows,
         the law, so it appeared, sought the intention
         of the parties by determining the real
         commercial or business description of the
         thing forming the subject-matter of the
         transaction.  'If the subject-matter be an
         article or commodity to be used for a
         particular purpose the thing offered or
         delivered must answer that description, that
         is to say, it must be that article or
         commodity, and reasonably fit for the
         particular purpose.' ((1877) 2QBD, at p 109)."
27.  Some support for the view that a warranty was intended is also to be
found in the circumstance that the respondent consented to interlocutory
judgment being entered for the appellants in respect of the breaches alleged
in the amended statement of claim relating to the walking beam.  By so
consenting, the respondent must be taken to have conceded that the assurances
given by Mr Donohue to Mr Gooch amounted to the giving of a collateral
warranty in respect of the walking beam.  No other basis for that concession
could exist.  To hold, in the absence of any evidence being given on behalf of
the respondent as to what was said by Mr Donohue, that no warranty of any kind
had been given by the respondent would be inconsistent with the position it
adopted in respect of the walking beam.
28.  Taking these matters into account, we are of opinion that the true
inference to be drawn from the proved facts is that the assurances given by Mr
Donohue concerning the capability of the vehicle to perform specific tasks,
its reliability and its suitability for the work in which the appellants were
engaged were promissory in nature and amounted to an express warranty
contractually binding on the respondent.  Although the matter is, perhaps, not
expressed as clearly as it might have been, we do not read the judgment of the
trial judge as expressing a contrary view. His Honour's conclusion that the
appellants had failed to establish that a warranty was given in the terms
alleged was based on the view which he formed as to the extent of the warranty
given.  In his view, while the warranty covered defects in the design or
manufacture of the rear walking beam, it was not to be taken as extending to
mechanical defects of the kind on which the appellants relied, the only
warranties being available to them in regard to such defects being the
warranties given respectively by Ford Sales Company of Australia Limited and
Caterpillar of Australia Limited.
29.  While it might be thought unusual for a motor vehicle dealer to give an
express warranty additional to any given by the manufacturer in respect of the
vehicle or of certain of its component parts, there is nothing inherently
improbable in a dealer doing so in order to secure a sale. Given the
unqualified terms of the assurances found to have been given by Mr Donohue and
his absence, unexplained, from the witness box, we find no sufficient
justification for the view that the respondent "would simply rely upon the
written warranties from Ford and Caterpillar".
30.  The other matter upon which the trial judge relied to sustain the
conclusion that a warranty in the terms alleged by the appellants had not been
given by the respondent was that, when the appellants had trouble with the
vehicle, they made claims under the warranties given by Ford Sales Company of
Australia Limited and Caterpillar of Australia Limited.  While it is true that
the evidence does not disclose that the appellants made a formal claim against
the respondent separately from that made against the manufacturers of the
vehicle and the diesel engine at any time before to the institution of the
proceedings on 12 October 1982, we do not think that that circumstance is, of
itself, sufficient to warrant a conclusion that the appellants did not accept
that what had been said by Mr Donohue amounted to a contractual promise.
31.  In the result, we are of opinion that the respondent contracted with the
appellants that the vehicle was suitable in all respects for the purposes for
which it was required by the appellants, such purposes having been made known
to the respondent, and that it could be relied upon to perform satisfactorily.
32.  It was not disputed at the trial that, if what was said by Mr Donohue
amounted to a warranty, the warranty was collateral to the lease agreement
between the appellants and Industrial Acceptance Corporation Limited and might
be enforced by the appellants against the respondent.  There can be no doubt,
on the evidence, that the respondent was in breach of the warranty which we
have found was given by it. In those circumstances, the appellants are
entitled to recover from the respondent the full extent of the loss or damage,
including economic loss, suffered by them as a result of the breach.  We turn,
then, to that issue.
33.  So far as the claim for damages in respect of the period before 7 July
1979 is concerned, it follows from what has been said above that the
appellants are entitled to damages for loss of profits and for the cost, not
otherwise reimbursed, of repairs carried out on the vehicle as a result of the
breach of warranty during that period.
34.  Because of the view the trial judge took of the warranty question, it did
not become necessary for him to consider that repair cost which amounted to
$1,102.  It should be allowed.  What was described as "down time", when the
vehicle was not earning profits because off the road for repairs before 7 July
1979, totalled 84 2/3 days.  The true net profit gained per month from the
operation of the vehicle seems to have been $1,511.00 but it was agreed at
$1,600.00 or $369.23 per week.  The number of days said to constitute a month
did not become clear, but assuming that the vehicle was employed for six days
per week (7 July 1979, the day on which the accident happened, was a
Saturday), 84 2/3 days may be taken as 3.25 months and the net loss at $1,600
per month at $5,200.
35.  As a result of the accident, the male plaintiff, who was driving the
truck when the walking beam failed, was off work until 26 July 1979.  Since it
appears that he was the usual driver of the vehicle and that, therefore, his
labour was essential to the appellants' profits in respect of its use, it
seems just and reasonable that they should recover profits at the rate of
$1,600 per month for the period when he was off work.  He may be taken to have
been absent from work for 16 working days, excluding Sundays, or .61 months.
We accordingly allow $976.00.
36.  In respect of the period after 25 July 1979 we see much difficulty in
awarding the appellants any damages except for some relatively short time
during which they might reasonably have considered their position.  In fact
they surrendered the vehicle to the lessor.  As we have earlier indicated the
trial judge, stating that the appellants did not claim any lack of capacity to
lease another truck and that he was left with the impression that they were so
disenchanted with their experience with the lost truck that they decided to
move out of the trucking business, accepted that they could have leased
another truck.
37.  We think these findings were open to him and should not be disturbed.
Damages of $1,600.00 for a further period of one month during which they might
have arranged for the lease of another truck should be allowed them.  Since
the net profit must have represented in large part the value of Mr Gooch's
labour we can see no injustice in not awarding further damages for loss of
profits since, no doubt, he should have been able to obtain employment at a
wage approaching that of the lost weekly net profit.  This he should have done
in order to mitigate damages.
38.  Counsel for the appellants said there was evidence that they could not
afford to lease a new truck and pointed to a letter written by the appellants
in which they claimed to be on the verge of bankruptcy.  We do not think the
references to bankruptcy in the letter constituted sufficient evidence of
impecuniosity to vitiate the trial judge's finding.
39.  To the figures set out above we add the damage for personal injury and in
respect of the loss of the truck, $19,116.70, awarded by the trial judge.  We
are not to be taken as necessarily agreeing with the approach to damages in
relation to the loss of the truck taken by his Honour, but since, on any view,
the appellants' damages in respect of that loss were of the order of $17,000
and since the figure was not the subject of appeal or challenge by either
side, we are content to accept the amount as appropriate.
40.  The appellants are therefore entitled to damages in the sum of
$27,994.70.
41.  Interest was claimed under s.53A of the Australian Capital Territory
Supreme Court Act 1933 (Cth) which reads:
          "(1) In any proceedings for the recovery of
      any money (including any debt or damages or the
      value of any goods) the Supreme Court or the
      Judge shall, upon application, unless good cause
      is shown to the contrary, either -
         (a) order that there be included in the sum
               for which judgment is given interest at
               such rate as the Court or the Judge, as
               the case may be, 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 as of which the judgment is
               entered; or
         (b) without proceeding to calculate interest
               in accordance with paragraph (a), order
               that there be included in the sum for
               which judgment is given a lump sum in
               lieu of any such interest.
          (2)Sub-section (1) does not -
         (a) authorize the giving of interest upon
               interest or of a sum in lieu of such
               interest;
         (b) apply in relation to any debt upon which
               interest is payable as of right whether
               by virtue of an agreement or otherwise;
               or
         (c) affect the damages recoverable for the
               dishonour of a bill of exchange.
          (3)Where the sum for which judgment is
      given (in this sub-section referred to as the
      'relevant sum') includes, or where the Court or
      the Judge in its or his absolute discretion
      determines that the relevant sum includes, any
      amount for -
         (a) compensation in respect of liabilities
               incurred which do not carry interest as
               against the person claiming interest or
               claiming a sum in lieu of interest;
         (b) compensation for loss or damage to be
               incurred or suffered after the date on
               which judgment is given; or
         (c) exemplary or punitive damages,
      interest, or a sum in lieu of interest, shall not
      be given under sub-section (1) in respect of any
      such amount or in respect of so much of the
      relevant sum as in the opinion of the Court or
      the Judge represents any such amount."
42.  The trial judge refused to award interest in respect of the total period,
fixing a lump sum of $10,000 in lieu.  He pointed out that had the proceedings
been instituted promptly a claim for interest could not have been made since
s.53A did not come into effect until December 1981 and does not apply to
proceedings instituted before the commencement of the section:  see Statute
Law (Miscellaneous Amendments) Act 1981, s.17(2).  Section 53A came into
effect on the 30th of the month.
43.  The appeal book does not show the history of the action but it was
instituted on 12 October 1982.  It thus took nearly five and one half years to
come to trial.  The delay is not explained but we are entitled to take into
account that originally three defendants were sued and that the respondent
seems to have claimed contribution or indemnity from the other two defendants.
44.  In his reasons for judgment, his Honour said:
      "It is appropriate to award interest on the
       damages for personal injuries and damages for
       loss of the truck, totalling $19,116.70 at the
       usual rate of 14 per cent. since the date of the
       accident to date.  The normal calculation would
       be to halve the amount for interest in respect
       of the damages for personal injuries on the
       basis that all the damage was not incurred at
       the one time but I think that is a rather
       artificial approach in the circumstances of the
       present case.  An interest rate of 14 per cent.
       on $19,116.70 from 7 July 1979 yields a round
       figure of $15,000.  In my view it would not be
       just to award that sort of a figure for interest
       for the following reasons."
45.  Two things are to be noted about that paragraph. The first is that the
word "appropriate" appears to have been used in error for clearly his Honour
meant "inappropriate".  The second is that interest of 14% on $19,116.70 from
7 July 1979 to the date of judgment, which was delivered on 15 July 1988, is
not approximately $15,000 as his Honour said but a sum slightly in excess of
$24,000. In substance, his Honour refused to award the full amount of interest
which might have been awarded at the conventional rate on the ground that
there had been undue delay in prosecuting the action to trial coupled with the
fact that, had the action been instituted promptly, the appellants would not
have been able to take advantage of s.53A at all.
46.  Section 53A, in our opinion, allows for interest to be claimed in respect
of an action commenced on or after 30 December 1981 even though the cause of
action might have arisen as much as six years before.  Indeed, because of the
provisions of the Limitations Ordinance 1985 (A.C.T.), the possibility now
exists that interest might be claimed in respect of a cause of action that had
arisen even earlier.
47.  We do not think it appropriate to penalise a plaintiff for delay in
bringing an action in respect of a cause of action which had arisen before 30
December 1981 but still within the time permitted by limitation legislation
unless his or her conduct was such as to indicate an inappropriate disregard
of the rights of a defendant.
48.  His Honour plainly awarded two-thirds of the interest he would have
awarded had his calculation been correct but, in the circumstances, we do not
feel bound to approach the matter in the same way, particularly as we have
increased the amount of damages which we think are properly payable to the
appellants.  This action arose out of a commercial transaction and, in the
result, the respondent has had the benefit of what now proves to have been the
appellants' money for many years.  We see no reason why any reduction in the
amount of interest which would have been awarded at the conventional rate
should be made.
49.  We think that the appropriate rate of interest therefore is 14% and the
appropriate period for which it ought to be payable 9 1/2 years.  This makes
adequate allowance for the fact that some of the interest would be payable in
respect of sums which would not have become due for up to seven weeks after 7
July 1979.  The proper amount to award for interest is, therefore, $37,232.95
and the total amount to which the appellants are entitled is $65,227.65.  In
reaching this conclusion we have taken into account the recent decision of the
High Court in Nicol v. Allyacht Spars Pty Ltd (No.2) (1988) 62 ALJR 557.
50.  The appeal should be allowed.  The judgment appealed from should be
varied by substituting for the orders that judgment be entered for the
plaintiffs against the firstnamed defendant in the sum of $29,116.70 and that
the plaintiffs recover against the firstnamed defendant the sum of $29,116.70
and costs orders that judgment be entered for the plaintiffs against the
firstnamed defendant in the sum of $65,227,65 and that the plaintiffs recover
against the firstnamed defendant the sum of $65,227.65 and costs. The
respondent must pay the appellants' costs of the appeal.