Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross

• Jurisdiction: Australia Federal only
• Judge: French CJ,Hayne J.,Crennan,Bell JJ.,Kiefel J.
• Judgment Date: 12 December 2012
• Neutral Citation: 2012-1212 HCA A,[2012] HCA 56
• Court: High Court
• Docket Number: Matter No S417/2011 Matter No S419/2011
• Date: 12 December 2012

[2012] HCA 56

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel and Bell JJ

Matter No S417/2011

Matter No S418/2011

Matter No S419/2011

Certain Lloyd'S Underwriters Subscribing To Contract No IH00AAQS

Appellant

and

John Cross

Respondent

Certain Lloyd'S Underwriters Subscribing To Contract No IH00AAQS

Appellant

and

Mark George Thelander

Respondent

Certain Lloyd'S Underwriters Subscribing To Contract No IH00AAQS

Appellant

and

Jill Maria Thelander

Respondent

Representation

R J H Darke SC with M J Stevens for the appellant in all matters (instructed by Riley Gray-Spencer Lawyers)

R T McKeand SC with A C Casselden for the respondents in all matters (instructed by G H Healey & Co Lawyers)

Civil Liability Act 2002 (NSW), Pt 2, ss 3, 9.

Legal Profession Act 1987 (NSW), Pt 11 Div 5B, ss 198C, 198D.

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander

Costs — Limit on maximum costs in connection with claim for ‘personal injury damages’ — Legal Profession Act 1987 (NSW), ss 198C and 198D — Where ‘personal injury damages’ defined to have same meaning as in Civil Liability Act 2002 (NSW) — Whether maximum costs limitation applies to claims for personal injury damages resulting from intentional acts.

Statutory interpretation — Principles — Reading provision in context — Whether, when operative statute adopts term in source statute, account must be taken of operation of term in source statute — Effect of amendments to statute.

Words and phrases — ‘award of personal injury damages’, ‘claim for personal injury damages’, ‘maximum costs’, ‘personal injury damages’, ‘same meaning’.

ORDER

In each appeal:

1. Appeal allowed.

2. Set aside paragraphs 4 and 5 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 1 June 2011, and, in their place, order that the appeal to that Court be dismissed.

3. Appellants to pay the respondent's costs of the appeal to this Court.

1 French CJ AND Hayne J. These three appeals were heard together with New South Wales v Williamson 1. All four appeals concern the construction of provisions of New South Wales statutes that limit the costs that a court may order one party to pay another if the amount recovered on a claim for personal injury damages does not exceed a specified amount. The reasons in these appeals should be read with the reasons in New South Wales v Williamson.

The issue

2 New South Wales legislation regulated claims for ‘personal injury damages’ and awards of ‘personal injury damages’. The expression ‘personal injury damages’ was defined to mean ‘damages that relate to the death of or injury to a person caused by the fault of another person’. The respondents alleged that they had been assaulted by hotel security staff. They sued the appellants 2, as the insurers of the company that employed those staff, for trespass to the person claiming damages for personal injuries allegedly inflicted intentionally and with intent to injure. Were these claims for ‘personal injury damages’ within the meaning of the relevant New South Wales Acts?

3 Answering this question requires consideration of Div 5B of Pt 11 (ss 198C-198I) of the Legal Profession Act 1987 (NSW) (‘the 1987 Legal Profession Act’) as inserted by the Civil Liability Act 2002 (NSW) (‘the Liability Act’) 3. Later forms of the relevant legislation are discussed in New South Wales v Williamson.

The relevant provisions

4 Section 198D(1) of the 1987 Legal Profession Act fixed the maximum costs for legal services provided to a party in connection with ‘a claim for personal injury damages’, ‘[i]f the amount recovered on [the claim] does not exceed $100,’. A lawyer and client could contract out of this limitation 4 by a ‘costs agreement’ complying with Div 3 of Pt 11 of the 1987 Legal Profession Act. But s 198D(4)(b) provided that, subject to some exceptions which need not be considered, when the maximum costs for legal services provided to a party were fixed by Div 5B, ‘a court or tribunal cannot order the payment by another

party to the claim of costs in respect of those legal services in an amount that exceeds that maximum’

5 Section 198C(2) of the 1987 Legal Profession Act provided that Div 5B did not apply to certain costs, namely, costs payable to an applicant for compensation under Pt 2 of the Victims Support and Rehabilitation Act 1996 (NSW) and costs for legal services provided in respect of certain other identified forms of statutory claim: claims under the Motor Accidents Act 1988 (NSW) or the Motor Accidents Compensation Act 1999 (NSW), claims for work injury damages as defined in the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and claims for damages for dust diseases brought under the Dust Diseases Tribunal Act 1989 (NSW). The respondents' claims did not fall within any of these expressly excluded classes of claim.

6 Section 198C(1) defined terms used in Div 5B. In particular, it provided that ‘ personal injury damages has the same meaning as in the Civil Liability Act 2002’.

7 The Liability Act provided 5 that, in that Act, ‘ personal injury damages means damages that relate to the death of or injury to a person caused by the fault of another person’. The Liability Act further provided 6 that:

‘ injury means personal or bodily injury, and includes:

• (a) pre-natal injury, and

• (b) psychological or psychiatric injury, and

• (c) disease.’

And it provided 7 that ‘ fault includes an act or omission’.

8 Read together with the definitions of ‘injury’ and ‘fault’, the Liability Act's definition of ‘personal injury damages’ can thus be expressed as follows. In the Liability Act:

‘personal injury damages means damages that relate to the death of or personal or bodily injury (including pre-natal injury, psychological or psychiatric injury and disease) to a person caused by the fault (including an act or omission) of another person.’

9 Section 198C and the other provisions of Div 5B of Pt 11 of the 1987 Legal Profession Act were introduced by the Liability Act as amendments connected with and consequential upon the enactment of the Liability Act. The two Acts did not, however, have identical areas of operation. The costs limiting provisions of Div 5B of Pt 11 of the 1987 Legal Profession Act applied to a ‘claim’ for personal injury damages whereas Pt 2 of the Liability Act applied to an ‘award’ of personal injury damages. And there were some similarities, but most importantly some differences, in the exclusions that were made from the operation of each Act.

10 Part 2 of the Liability Act regulated the amount recoverable as an ‘award of personal injury damages’. As enacted, s 9(1) of the Liability Act provided that Pt 2 of the Act ‘applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part’. Section 9(2) excluded several kinds of awards of damages. The first of these exclusions 8 was ‘an award where the fault concerned is an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct’. Other exclusions included awards of damages for death or injury resulting from a motor accident to which either Pt 6 of the Motor Accidents Act 1988 (NSW) or Ch 5 of the Motor Accidents Compensation Act 1999 (NSW) applied 9, awards of damages for death or injury to a worker to which Div 3 of Pt 5 of the Workers Compensation Act 1987 (NSW) applied 10 and awards of damages for dust diseases brought under the Dust Diseases Tribunal Act 1989 (NSW) 11.

11 Some, but not all, of these excluded awards would be made following claims for personal injury damages that were expressly excluded from the operation of the costs limiting provisions of Div 5B of Pt 11 of the 1987 Legal Profession Act. Thus, particular kinds of award made under the Motor Accidents Act 1988, the Motor Accidents Compensation Act 1999 and the Dust Diseases Tribunal Act 1989 were excluded from the operation of Pt 2 of the Liability Act

and claims for those kinds of awards were excluded by s 198C(2) from the application of Div 5B of Pt 11 of the 1987 Legal Profession Act. Likewise, an ‘award comprising compensation under’ the Victims Support and Rehabilitation Act 1996 (NSW) was excluded 12 from the operation of Pt 2 of the Liability Act and the costs payable to an applicant for compensation of that kind were excluded by s 198C(2)(a) from the operation of Div 5B of Pt 11 of the 1987 Legal Profession Act

12 Although there was thus some similarity in the express exclusions that were contained in the 1987 Legal Profession Act and the Liability Act, there were also some differences between them. For example, the Liability Act also excluded 13 from the operation of Pt 2 of that Act awards comprising compensation under certain Acts other than the Victims Support and Rehabilitation Act 1996, but none of those other Acts was mentioned in s 198C(2) of the 1987 Legal Profession Act. And, of greatest significance for the present appeals, the Liability Act excluded 14 from the operation of Pt 2 ‘an award where the fault concerned is an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct’ but there was no equivalent exclusion in Div 5B of Pt 11 of the 1987 Legal Profession Act.

The parties' arguments

13 The central point of difference between the parties in this Court was whether the definition of ‘personal injury damages’ in the 1987 Legal Profession Act (it ‘has the same meaning as in’ the Liability Act) was to be construed by reference only to the words of the definition of that expression in s 3 of the Liability Act or by...