Taylor v Owners – Strata Plan No 11564 and Others

• Jurisdiction: Australia Federal only
• Judge: French CJ,Crennan,Bell JJ.,Gageler,Keane JJ
• Judgment Date: 02 April 2014
• Neutral Citation: [2014] HCA 9
• Court: High Court
• Docket Number: S179/2013
• Date: 02 April 2014

[2014] HCA 9

HIGH COURT OF AUSTRALIA

French CJ, Crennan, Bell, Gageler and Keane JJ

S179/2013

Susan Joy Taylor In Her Own Capacity and For and on Behalf of the Dependants of the Late Craig Taylor

Appellant

and

The Owners — Strata Plan No 11564 & Ors

Respondent

Representation

J Poulos QC with V M Heath for the appellant (instructed by Craddock Murray Neumann)

P W Taylor SC with A C Scotting for the first to fourth respondents (instructed by Meridian Lawyers)

S R Donaldson SC with S P W Glascott for the sixth respondent (instructed by DLA Piper Australia)

Submitting appearances for the fifth and seventh to tenth respondents

Civil Liability Act 2002 (NSW), ss 12(1), 12(2).

Compensation to Relatives Act 1897 (NSW), ss 3, 4.

Taylor v The Owners — Strata Plan No 11564

Statutes — Statutory construction — Whether Court of Appeal erred in construction of Civil Liability Act 2002 (NSW), s 12(2) — Whether Civil Liability Act 2002 (NSW), s 12(2) limits awards of damages under Compensation to Relatives Act 1897 (NSW), ss 3, 4 — Whether s 12(2) limitation applies to deceased's gross weekly earnings.

Words and phrases — ‘claimant’, ‘deceased’, ‘gross weekly earnings’, ‘loss of expectation of financial support’.

1. Appeal allowed.

2. Set aside orders 3 and 4 of the Court of Appeal of the Supreme Court of New South Wales made on 18 March 2013, and orders 1 and 2 of that Court made on 5 June 2013, and, in their place, order that:

• (a) the appeal be allowed;

• (b) the orders of the Supreme Court of New South Wales made on 27 July 2012 be set aside and, in their place, order that:

  • (i) the separate question:

  • ‘Insofar as the plaintiffs claim damages pursuant to ss 3 and 4 of the Compensation to Relatives Act 1897, is any award of damages limited by the operation of s 12(2) of the Civil Liability Act 2002?’

  • be answered:

  • ‘No, the operation of s 12(2) of the Civil Liability Act 2002 (NSW) does not limit the first plaintiff's claim for damages pursuant to ss 3 and 4 of the Compensation to Relatives Act 1897 (NSW) as pleaded on behalf of herself and any other entitled relatives of the late Mr Craig Taylor in that it does not require the court to disregard the amount by which the gross weekly earnings of Mr Craig Taylor would, but for his death, have exceeded an amount that is three times the average weekly earnings at the date of the award’; and

  • (ii) the first to sixth defendants pay the first and second plaintiffs' costs of the separate question; and

• (c) the first to fourth and sixth respondents pay the appellant's costs of the appeal.

• 3. The first to fourth and sixth respondents pay the appellant's costs in this Court.

1 French CJ, Crennan, Bell JJ. Section 12(2) of the Civil Liability Act 2002 (NSW) (‘the Liability Act’) directs a court, when awarding damages relating to the death of or injury to a person, to disregard the amounts (if any) by which the claimant's gross weekly earnings would, but for the injury or death, have exceeded three times the amount of average weekly earnings at the date of the award (‘the s 12(2) limitation’). The s 12(2) limitation applies to awards of damages for past and future economic loss due to the deprivation or impairment of earning capacity, for past economic loss due to loss of earnings, and for ‘the loss of expectation of financial support’ 1. The latter expression is apt to describe an award of damages under the Compensation to Relatives Act 1897 (NSW) (‘the Relatives Act’). The issue presented by the appeal is whether, in the case of an award of damages for the loss of expectation of financial support, the s 12(2) limitation is to be construed as applying to the deceased's gross weekly earnings.

Background

2 The appellant is the widow of the late Mr Craig Taylor. Mr Taylor was killed when an awning outside a shop collapsed on him. The appellant commenced proceedings in the Supreme Court of New South Wales against the first to sixth respondents claiming damages under ss 3 and 4 of the Relatives Act. The action is a representative proceeding brought for the benefit of the appellant and any entitled children of the deceased 2.

3 The deceased was a land surveyor in private practice. It was accepted for the purpose of present proceedings that had the deceased lived he would have earned income substantially in excess of three times the amount of average weekly earnings. The appellant claims damages for the loss of benefits that she and the children expected to receive had the deceased lived, derived from his personal exertion, investment, creation and maintenance of capital assets and services. No component of the damages claimed is based upon any loss of the appellant's, or the children's, earnings.

4 The trial of the appellant's representative action is yet to take place. With the consent of the parties, the primary judge (Garling J) agreed to the separate determination of one question 3:

‘Insofar as the [appellant] claim[s] damages pursuant to ss 3 and 4 of the Compensation to Relatives Act 1897, is any award of damages limited by the operation of s 12(2) of the Civil Liability Act 2002?’ 4

5 Garling J answered the separate question adversely to the interests of the appellant, holding that insofar as the damages claimed include damages for the loss of an expectation of financial support provided by the deceased, the court is to disregard the amount (if any) by which the deceased's gross weekly earnings would (but for his death) have exceeded an amount that is three times the amount of average weekly earnings at the date of the award 5.

6 The appellant appealed by leave to the Court of Appeal of the Supreme Court of New South Wales (McColl, Basten and Hoeben JJA). By majority (McColl JA, Hoeben JA agreeing) the appeal was dismissed. On September 2013 the appellant was granted special leave to appeal. For the reasons to be given, the appeal should be allowed and the separate question answered in the negative.

The statutory scheme

7 Section 12 of the Liability Act, relevantly, provides:

• ‘(1) This section applies to an award of damages:

  • (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or

  • (b) for future economic loss due to the deprivation or impairment of earning capacity, or

  • (c) for the loss of expectation of financial support.

• (2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant's gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award.’

8 Section 12 is in Pt 2 of the Liability Act, which governs the award of ‘Personal injury damages’. That phrase is defined to mean damages that relate to

the death of or injury to a person 6. Part 2 applies to the award of personal injury damages regardless of whether the claim is brought in tort, in contract, under statute or otherwise 7. Damages awarded under the Relatives Act for the injury occasioned by the death of the deceased are personal injury damages to which Pt 2 applies. A court cannot award damages contrary to Pt 2 8.

9 ‘Claimant’ is not defined in the Liability Act 9. As enacted, s 3 in Pt 1 of the Liability Act defined a number of terms used in Pt 2. These included ‘claimant’, which was defined to mean ‘a person who makes or is entitled to make a claim for personal injury damages’. Section 10 in Pt 2 of the Liability Act as enacted precluded a court from awarding damages to a claimant contrary to Pt 2. The Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) effected extensive amendments to the Liability Act, inserting Parts dealing with negligence, mental harm, proportionate liability, the liability of public and other authorities, intoxication, self-defence and recovery by criminals, good samaritans, volunteers, and apologies. New sections were inserted in Pt 2 dealing with damages for loss of superannuation entitlements, tariffs for damages for non-economic loss, and structured settlements. Defined terms relating to personal injury damages were removed from Pt 1 and some were inserted in s 11 in Pt 2 10. The word ‘claimant’ then also appeared in Pt 5, which dealt with the liability of public authorities 11. The definition of ‘claimant’, which it will be recalled was confined to persons making, or who were entitled to make, a claim for personal injury damages, was repealed 12. Section 10, which precluded the award of damages to a claimant otherwise than in accordance with Pt 2, was also

repealed 13. Section 11A(3) was inserted in Pt 2 and precluded the court from awarding damages contrary to the Part 14. Nothing in the structure of the Act or the legislative history suggests that the repeal of the definition was intended to alter the meaning of ‘claimant’ in s 12(2) from its ordinary meaning of a person who makes or is entitled to make a claim.

Loss of expectation of financial support

10 The only personal injury damages that may be characterised as compensation for the loss of expectation of financial support within the meaning of s 12(1)(c) are damages under the Relatives Act.

11 The Relatives Act is a derivative of the Fatal Accidents Act 1846 (UK) (9 & 10 Vict c 93), commonly referred to by the name of its proponent as Lord Campbell's Act. The Relatives Act gives a right of action against a person whose wrongful act, neglect or default caused the death of another in such circumstances as would have entitled the deceased to maintain an action and recover damages 15. The action is brought by and in the name of the executor or administrator and is for the benefit of specified classes of relatives of the deceased 16. Where there is no executor or administrator or where the executor or administrator does not bring an...