By Statement of Claim dated 28 March 2014 the Plaintiff sued Ross Colquhoun and Mohammad Shinwari under the Compensation to Relatives Act 1897 (NSW) alleging that her mother had died in consequence of the Defendants' failure to exercise reasonable care and skill in the provision of advice and treatment in relation to the deceased's opiate dependence and treatment by way of rapid opiate detoxification.
By an Amended Statement of Claim filed on 24 April 2014 the Plaintiff restricted her claim to one against Mohammad Shinwari. Although I do not think it material to the question I have to decide, it seems likely that the withdrawal of proceedings against Mr Colquhoun is because it is believed he is uninsured.
In his Defence, the Defendant contends that the Plaintiff's claim is properly characterised as a claim for economic loss not arising out of personal injury as defined by s 5 of the Civil Liability Act 2002, that, if the Defendant is liable, Mr Colquhoun and a company he operated were concurrent wrong doers and, relying on Part 4 of that Act, that the Plaintiff's damages against Dr Shinwari should be reduced. In paragraphs 34 to 82 of the Defence, the suggested involvement and defaults of Mr Colquhoun and his company, and the Defendant's claim against them, were particularised.
By Notice of Motion filed on 12 December 2014, the Plaintiff seeks orders:
1. Pursuant to rule 14.28 of the Uniform Civil Procedure Rules (UCPR), paragraphs 34 to 82 of the Defence be struck out.
2. In the alternative to order 1, pursuant to rule 28.2 of the UCPR, the following questions be decided separately from and before any trial in the proceedings:
1. Does part 4 of the Civil Liability Act 2002, (NSW) apply to the plaintiff's claim under the Compensation to Relatives Act 1897 (NSW)?
2. If not, should paragraphs 34 to 82 of the Defence be struck out?
1. The Defendant pay the Plaintiff's costs of and incidental to this application.
It was pointed out during the hearing that significant advantages in terms of the efficient conduct of the principal litigation were likely to ensue if a decision was made as to the applicability of Part 4 of the Civil Liability Act 2002 (NSW). It is appropriate therefore for me to deal with the substantive issues that arise.
On 24 August 2015, during the hearing of the Notice of Motion, the Plaintiff submitted and Counsel for the Defendant agreed that the issue for me was:
Does Part 4 of the Civil Liability Act 2002 (NSW) apply to the Plaintiff's cause of action for damages brought pursuant to the provisions of the Compensation to Relatives Act 1897 (NSW)
Part 4 of the Act commences with section 34. So far as is presently relevant, that section provides:
34(1) This Part applies to the following claims:
1. A claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury.
The section appears in a Part of the Act devoted to restrict the liability of a concurrent wrongdoer to that proportion of a loss as is regarded as fairly reflecting the extent of his responsibility for the damage - see s 35. Previously of course, concurrent wrongdoers were each responsible for all of the loss or damage to which they contributed albeit entitled to recover from other concurrent wrongdoers who had contributed to the same loss or damage, a proportion regarded as fair. One can accordingly see in s 34(1) a statutory intention not to impose this limitation on those who suffered personal injury - by far the majority of persons who sue on the basis of a failure to take reasonable care.
In the extensive submissions - 29 pages - advanced either in favour or against regarding a Compensation to Relatives Act claim as falling within the terms of s 34(1) attention was given to, inter alia, the principles of statutory construction, the history of Compensation to Relatives Act claims, what was described as the bifurcation of actions for personal injury and those made under the Compensation to Relatives Act and the Ipp report into the Law of Negligence. However, I do not find it necessary to canvass most of these issues. The terms of the statutory provisions and inherent nature of a Compensation to Relatives Action make the conclusion at which I arrive plain.
A convenient starting point are the terms of s 3 of the Compensation to Relatives Act, defining as that section does, the ingredients of an action under the Act:
1. Whensoever the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (If death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to a serious indictable offence.
The section thus has as one of the essential ingredients to an action under that Act that there has been a person who was both injured and died. On behalf of the Defendant, it was submitted that a claim under the Compensation to Relatives Act crystallises on death and personal injury is irrelevant to such an action as it is not a necessary precondition to a person's death. In the face of the terms of the section the submission must be rejected.
Putting aside some additional provisions of no particular significance, s 4 defines how damages are to be calculated. So far as is relevant the section provides:-
1. Every such action shall be for the benefit of the spouse, brother, sister, half-brother, half-sister, parent, and child of the person whose death has been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict find and direct.
In summary the damages are calculated by reference to the injury or loss suffered by the group of persons mentioned.
Against that background, I return to the terms of s 34.
There can be no doubt that the Plaintiff's claim is for economic loss in an action for damages arising from a failure to take reasonable care and the question thus reduces to whether the Plaintiff's claim is a "claim arising out of personal injury".
On behalf of the Plaintiff attention was drawn to the definition of "personal injury damages" in s 11 as meaning "damages that relate to the death of or injury to a person" and it was submitted that the phrase "personal injury" in Part 4 should be read consistently with this definition. However, the definition in s 11 is expressly stated to be "in this Part", viz. Part 2, and I do not regard one as justified in effectively extending its operation to Part 4.
It was further submitted that the words "arising out of" were words of broad import. Cases referred to, Government Insurance Office of NSW v RJ Green & Lloyd Pty Limited (1966) 114 CLR 437, Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165, Speno Rail Maintenance Australia Pty Ltd v Hammersly Iron Pty Ltd (2000) 23 WAR 291 though in different areas, provide support for this submission. The words used are quite inconsistent with the contention advanced on behalf of the Defendant to the effect that the only claims to which s 34(1) applies are claims "for" personal injury. Insofar as the Ipp report referred to "claims for negligently caused personal injury and death", the same result is achieved by the change of wording to "arising out of".
It follows that it is appropriate to make orders to the effect of those sought by the Plaintiff. Accordingly I order:-
1. That there be decided separately from and before any trial of these proceedings the question whether Part 4 of the Civil Liability Act 2002, (NSW) applies to the Plaintiff's claim under the Compensation to Relatives Act 1897 (NSW).
2. Answer that question: "No. Part 4 of the Civil Liability Act 2002, (NSW) does not apply to the Plaintiff's claim under the Compensation to Relatives Act 1897 (NSW)."
3. Strike out paragraphs 34 to 82 of the Defence
4. The Defendant to pay the Plaintiff's costs of and incidental to this application.
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Decision last updated: 29 September 2015