Court of Appeal (Vic)|2010-06-02|Before: NETTLE and MANDIE JJA and EMERTON AJA

Doughty v Martino Developments Pty Ltd [2010] VSCA 121 (2 June 2010)

STATUTES - Construction - Interpretation - Amending legislation - Whether intention of Parliament to abolish action per quod servitium amisit - Petricola v Metropolitan Transit Authority (1989) Aust Torts Reports 80-247, referred to.

1 The question for determination in this appeal is whether s 93(1) of the Transport Accident Act 1986 prevents an employer recovering damages per actione per quod servitium amisit for the loss of services of an employee injured as a result of a transport accident occurring on or after the commencement of s 34 of the Act.

2 At relevant times,[1] s 93 of the Act provided as follows:

93. Actions for damages

(1) A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section.

(2) A person who is injured as a result of a transport accident may recover damages in respect of the injury if -

(a) the Commission has determined the degree of impairment of the person under section 46A, 47(7) or 47(7A); and

(b) the injury is a serious injury.

(3) If -

(a) under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and

(b) the degree so determined is 30 per centum or more -

the injury is deemed to be a serious injury within the meaning of this section.

(4) If -

(a) under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and

(b) the degree so determined is less than 30 per centum -

the person may not bring proceedings for the recovery of damages in respect of the injury unless -

(c) the Commission -

(i) is satisfied that the injury is a serious injury; and

(ii) issues to the person a certificate in writing consenting to the bringing of the proceedings; or

(d) a court, on the application of the person, gives leave to bring the proceedings.

(5) A copy of an application under sub-section (4)(d) must be served on the Commission and on each person against whom the applicant claims to have a cause of action.

(6) A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.

...[2]

(7) Damages of any kind in respect of an injury cannot be recovered in proceedings in accordance with sub-sections (2), (3) and (4) other than damages -

(a) for pecuniary loss but only if -

(i) the assessment of damages before any reduction in respect of the person's responsibility for the injury is more than $30 520 but less than $686 840, in which case the amount that can be recovered is that amount so assessed as reduced first under sub-section (11) and secondly in respect of the person's responsibility for the injury; or

(ii) the assessment of damages before any reduction in respect of the person's responsibility for the injury is more than $686 840, in which case the amount that can be recovered is $686 840 as reduced first under sub-section (11) and secondly in respect of the person's responsibility for the injury;

(b) for pain and suffering but only if -

(i) the assessment of damages before any reduction in respect of the person's responsibility for the injury is more than $30 520 but less than $305 250, in which case the amount that can be recovered is that - amount so assessed as reduced first under sub-section (11) and secondly in respect of the person's responsibility for the injury; or

(ii) the assessment of damages before any reduction in respect of the person's responsibility for the injury is more than $305 250, in which case the amount that can be recovered is $305 250 as reduced first under sub-section (11) and secondly in respect of the person's responsibility for the injury.

(8) A person may recover damages under Part III of the Wrongs Act 1958 in respect of the death of a person as a result of a transport accident.

(9) A court must not, in proceedings under Part III of the Wrongs Act 1958 award damages in accordance with sub-section (8) in respect of the death of a person in excess of $500 000.

(10) Damages awarded to a person under this section shall not include damages in respect of -

(a) in the case of an award of pecuniary loss damages under sub-section (7), any pecuniary loss suffered in the period of 18 months after the transport accident; or

(b) any loss suffered or that may be suffered as a result of the incurring of costs or expenses of a kind referred to in section 60; or

(c) the value of services of a domestic nature or services relating to nursing and attendance -

(i) which have been or are to be provided by another person to the person in whose favour the award is made; and

(ii) for which the person in whose favour the award is made has not paid and is not and will not be liable to pay.

(11) Damages under sub-section (7) are to be reduced -

(a) in the case of damages for pecuniary loss -

(i) if the person was entitled to compensation under this Act, by the amount of compensation paid in respect of the injury under sections 49, 50 and 51; or

(ii) if the person was not entitled to compensation under this Act because of section 37, by the amount of any compensation paid in respect of lost earnings other than earnings lost in the first 18 months after the transport accident; and

(b) in the case of damages for pain and suffering -

(i) if the person was entitled to compensation under this Act, by the amount of compensation paid in respect of the injury under sections 47 and 54; or

(ii) if the person was not entitled to compensation under this Act because of section 37, by the amount of any compensation paid otherwise than in respect of lost earnings or other pecuniary loss.

(11A) Damages under subsection (8) are to be reduced -

(a) if compensation was payable in respect of the death under this Act, by the amount of compensation paid under sections 57, 58 and 59; or

(b) if compensation was not payable in respect of the death under this Act because of section 37, by the amount of any compensation paid in respect of the loss of expectation of financial support (other than of the kind to which section 60 applies) under any compensation scheme specified in section 372.

(12) Subject to the discretion of the court -

(a) in proceedings relating to an application for leave of the court under sub-section (4)(d) - costs are to be awarded against a party against whom a decision is made; and

(b) in proceedings for the recovery of damages in accordance with this section -

(i) if no liability to pay damages is established, costs are to be awarded against the claimant; and

(ii) if damages are assessed but cannot be awarded under this section, each party bears its own costs; and

(iii) if damages are awarded, costs are to be awarded against the defendant.

(12A) Damages awarded in accordance with sub-section (8) in respect of the death of a person must not include damages in respect of services in the nature of housekeeping or the care of a child which would have been provided by the deceased person.

(13) Where an award of damages in accordance with this section is to include compensation, assessed as a lump sum, in respect of damages for future loss which is referable to -

(a) deprivation or impairment of earning capacity; or

(b) loss of the expectation of financial support; or

(c) a liability to incur expenditure in the future-

the present value of the future loss must be qualified by adopting a discount rate of 6 per centum in order to make appropriate allowance for inflation, the income from investment of the sum awarded and the effect of taxation on that income.

(14) Except as provided by sub-section (13), nothing in that sub-section affects any other law relating to the discounting of sums awarded as damages.

(15) A court must not, in relation to an award of damages in accordance with this section, order the payment of interest, and no interest shall be payable, on an amount of damages, other than damages referable to loss actually suffered before the date of the award, in respect of the period from the date of the death of or injury to the person in respect of whom the award is made to the date of the award.

(16) Except as provided by sub-section (15), nothing in that sub-section affects any other law relating to the payment of interest on an amount of damages, other than special damages.

(17) In this section -

'pain and suffering damages' means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life;

'pecuniary loss damages' means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage;

'serious injury means' -

(a) serious long-term impairment or loss of a body function; or

(b) permanent serious disfigurement; or

(c) severe long-term mental or severe long-term disturbance or disorder; or

(d) loss of a foetus.

(18) Nothing in subsection (1) -

(a) affects a right to compensation under this Act or an Act or enactment referred to in section 37 or 38; or

(b) applies to the recovery of damages in respect of a transport accident involving an organized motor vehicle race or speed trial or a test in preparation for such a race or trial by a person who, by reason of section 41, is not entitled to compensation in accordance with this Act in respect of that accident; or

(c) applies to the recovery of damages in respect of a transport accident to which section 41A or 41B applies by a person who, by reason of that section, is not entitled to compensation in accordance with this Act in respect of that accident.

(18A) Despite subsection (18), if an award of damages under this section includes an amount for the future cost of services of a kind set out in section 60 if provided in Australia, the Commission is released from any further liability for compensation under that section.

(18B) Subsection (18A) as inserted by section 29 of the Transport Accident (Amendment) Act 2000 applies to and in respect of a transport accident which occurs on or after the commencement of that section.

(19) Notwithstanding anything to the contrary in this Act, for the purposes of the Limitation of Actions Act 1958, the cause of action in respect of an injury arises on the day of the transport accident or on the day on which the injury first manifests itself.

(20) For the avoidance of doubt it is hereby declared that all the provisions of this section contain matters that are substantive law and are not procedural in nature.

3 The judge below held that s 93(1) did not extinguish the right of an employer to recover damages for the loss of services of an employee injured as a result of a transport accident. His Honour reasoned that:

The scope of s 93(1) is best determined by reference to the exceptions, or what the judge called the 'gateways', provided for in s 93(2).[3]

The 'gateways' are limited to actions by persons injured as a result of a transport accident and the dependants of persons killed as a result of a transport accident [being the only persons for whom the Act provides no fault benefits (under s 35 of the Act)], to sue for damages in respect of serious injury.[4]

It is to be seen in the fact that the 'gateways' are thus confined to persons for whom the Act provides no-fault benefits that the evident purpose of s 93(1) 'is limited to the extinguishment of the rights of those persons who by the very same Act instead receive no-fault benefits, and who have the potential to regain the right to sue by establishing serious injury.'[5]

That being the 'evident purpose' of s 93(1), 'the Act does not disclose a purpose to extinguish an independent and long-standing common law cause of action which vests in persons other than the person who has been injured as a result of a transport accident and in which loss of service is the gist of the action'.[6]

The conclusion that there was no intention to extinguish any other common law cause of action is supported by the absence from the Parliamentary debates of any mention of an intention to abolish the action per quod servitium amisit.[7]

It is further supported by recognition of the ease with which Parliamentary counsel could have made plain an intention to abolish the action, had that been Parliament's intention; as, for example, has been done in s 142 of the Motor Accidents Compensation Act 1999 (NSW).[8]

Given the fundamental purpose of the Act, which is defined in s 1 as that of the establishment of a scheme of compensation in respect of persons who are injured or die as a result of transport accidents, in my opinion s 93 is concerned with the circumstances in which an injured person is permitted to bring a traditional common law action for damages or in which the dependants of a person who has died are permitted to bring an action founded on Pt 111 of the Wrongs Act 1958. Such proceedings are to be conducted outside the direct regulation of the Act.

Applying the approach of Lord Mersey in Thompson v Gould,[9] derived from the passage referred to by the Full Court in Lavrick,[10] in my opinion, the text of s 93(1) does not achieve the abolition of the per quod action as it may be applied to the injury or death of a person as a result of a transport accident, nor is there any intention evident in the Act to do so. To have this result would call for additional words to be read into the sub-section. Such words are not present and there is no necessity for them to be there.[11]

5 With respect, I take a different view of the legislation. In my opinion, the logical starting point is the natural and ordinary meaning of the terms of s 93(1). It appears to me that the natural and ordinary meaning of the phrase 'any proceedings in respect of the injury or death of a person as a result of a transport accident' includes an action for damages for the loss of services of an employee injured as a result of a transport accident.

6 As the judge observed, the meaning of 'in respect of' varies according to context.[12] But, conceptually, it has 'the widest possible meaning of any expression intended to convey some connexion or relation between two subject-matters'.[13] And in the context of s 93(1) - that being a general prohibition subject to precisely defined exceptions - it appears to be an expression of broad application.

7 Admittedly, in Unsworth v Commissioner for Railways,[14] Taylor J took a more restrictive approach in relation to s 12 of the Common Law Practice Acts 1867 to 1940 (Qld). His Honour said that:

There is abundant authority for the proposition that a cause of action of the character given by s. 12 of The Common Law Practice Acts 1867 to 1940 [Lord Campbell's Act] is not 'an action to recover damages or compensation in respect of personal injury': see British Colombia Railway Co. v. Gentile;[15] Union Steamship Co. of New Zealand Ltd. v. Mary Robin;[16] Nunan v. The Southern Railway Co.;[17] and Victorian Railways Commissioners v. Speed.[18]

But it is apparent from the context in which Taylor J made that observation that it is not to be taken literally. The cases to which his Honour referred are not authority for the proposition that a cause of action for wrongful death is not 'an action to recover damages or compensation in respect of personal injury'.

8 In Gentile's case it was held that an action for wrongful death was not an action for 'indemnity for damages sustained by reason of the railway or the operations of the company' within the meaning of s 60 of the Consolidated Railway Company's Act 1896 (BC). Lord Dunedin's expressed reasons for so concluding were that the widow's cause of action for wrongful death was separate and distinct from any claim which the deceased may have had against the defendant, and that:

Indemnity obviously means indemnity to the plaintiff in the suit, in respect of wrong done to the plaintiff and damages sustained by him owing to the railway or the operations of the company.[19]

9 In Union Steamship v Mary Robin, it was held that provision in s 13 of the Workers Compensation Amendment Act 1911 that 'no servant shall be entitled to recover from his employer ... in respect of the negligence of a fellow-servant a larger sum by way of damages ... than £500' did not apply to a widow's claim for wrongful death of a worker caused by the negligence of a fellow employee. The reasons given for so concluding was that the widow's cause of action for damages for wrongful death was separate and distinct to any which the deceased employee, had he lived, may have had against his employer, and that the provision was in terms limited to a claim by the deceased.

10 In Nunan v The Southern Railway Co, it was held that, where a workman was killed while travelling on a railway under a workman's ticket, of which it was a condition that 'The liability of the [railway] company is limited to a sum not exceeding £100', the deceased's widow's claim for damages for wrongful death was not so limited. The widow's cause of action for wrongful death was separate and distinct from any claim which the deceased may have had against the company and, as a matter of contract, the condition of carriage could not bind the widow because she was not party to the ticket.

11 In Victorian Railways Commissioners v Speed, it was held that s 183(2) of the Railways Act 1915 did not apply to a dependant's claim for wrongful death. That section provided that:

Every action against the Commissioners, except actions for losses caused by sparks from railway engines, shall ... be heard and determined in a County Court... Provided that all actions for losses caused by sparks from railway engines shall be referred to arbitration.

The court reasoned that the term 'losses' implied previous title of some sort whereas the pecuniary losses for which damages are recoverable in an action for wrongful death are measured by a different standard of 'reasonable expectation'.

12 In Unsworth, Fullagar J also observed at the outset of his judgment that he was inclined to agree with the judge at first instance that the words 'an action to recover damages or compensation in respect of personal injury' would ordinarily be read as limited to an action by a plaintiff to recover damages or compensation for personal injury suffered by the plaintiff. But Fullagar J did not cite any authority in support of that view and, more importantly, his Honour then went on to say that the words 'in respect of' are wider than the word 'for' and were capable of referring to a cause of action in respect of personal injury suffered by someone other than the plaintiff. Thus in reference to s 121 of the Railways Acts 1914 to 1955 (Qld),[20] Fullagar J stated that:

I would concede that the natural reading of the words 'action brought to recover damages or compensation in respect of personal injury' is to read them as referring to personal (i.e. physical) injury to the plaintiff himself or herself. But the prepositional phrase 'in respect of' is wider than the preposition 'for', and the words are capable of referring to cases where the cause of action arises out of personal injury but the plaintiff is someone other than the person injured. And the specific reference to personal injury resulting in death is decisive, in my opinion, to show that the introductory words of the section include actions under Lord Campbell's Act.[21]

13 As it appears to me, the position under s 93(1) of the Act is even clearer than the position under s 121 of the Railways Acts 1914 to 1955 (Qld). The expression 'damages in any proceeding in respect of the injury or death of a person' in s 93(1) is wider that the expression 'damages or compensation in respect of personal injury' in s 121 of the Railways Act, and wider again than the term 'damages or compensation for personal injury'. Consequently, s 93(1) is even more 'capable [than s 121 of the Railways Act] of referring to cases where the cause of action arises out of personal injury but the plaintiff is someone other than the person injured'. The use of the indefinite article before 'person' where second appearing in s 93(1) further implies that the section was intended to refer as much to a proceeding in which the plaintiff is not the person injured as to one in which the plaintiff is the person injured. And the express inclusion in s 93(1) of reference to 'damages in any proceeding in respect of death' effectively puts beyond doubt that the section extends to proceedings brought by a plaintiff to recover damages in respect of the death of another person killed as result of a transport accident.

14 Finally, on this aspect of the matter, the view that 'in respect of' in s 93(1) extends to damages for loss of servitium derives additional support from the conclusion reached in Petricola v Metropolitan Transit Authority[22] that 'damages which consist of or include damages in respect of physical injury to any person' in s 23A of the Limitation of Actions Act 1958 include damages for loss capable of being measured in monetary terms and following from physical injury negligently caused to a plaintiff's wife.

15 I turn to whether there is anything in the remaining sub-sections of s 93 which qualifies the plain and ordinary meaning of s 93(1) and, in particular, whether, as the judge held, the fact that s 93(2) provides only for claims by a plaintiff for damages for serious injury, and s 93(8) provides only for claims for wrongful death, should be taken to imply that the prohibition in s 93(1) on claims for damages in respect of the injury or death of a person (other than a plaintiff) is limited to claims for wrongful death.

16 One consideration which the judge invoked in support of that view of the section was the presumption that a statute is not intended to alter or abolish common law rights unless it evinces a clear indication to do so. His Honour considered that, because it is possible to read the prohibition in s 93(1) (on claims for damages in respect of the injury or death of a person) as limited to claims by plaintiffs for serious personal injury and claims for damages for wrongful death, the presumption implies that the prohibition in s 93(1) is limited to those two classes of claims.

17 In my opinion, however, there are several considerations which militate against that conclusion. The first is that the presumption to which the judge referred is a weak one. As McHugh J said in Gifford v Strang Patrick Stevedoring Pty Ltd:[23]

There is a presumption -- admittedly weak these days -- that a statute is not intended to alter or abolish common law rights unless the statute evinces a clear intention to do so.[24] In Malika Holdings Pty Ltd v Stretton,[25] however, I warned of the need for caution in applying this presumption: nowadays legislatures regularly enact laws that infringe the common law rights of individuals. The presumption of non-interference is strong when the right is a fundamental right of our legal system; it is weak when the right is merely one to take or not take a particular course of action. Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend 'ordinary' common law rights, the 'presumption' of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.

The right to bring an action for psychiatric injury is an ordinary legal right. It is not a fundamental right of our society or legal system similar to the right to have a fair trial or to have a criminal charge proved beyond a reasonable doubt. Nor is the presumption against interfering with ordinary common law rights of the same strength as the presumption that laws do not operate retrospectively. Whether or not the Law Reform (Miscellaneous Provisions) Act excludes the common law has to be determined by construing the legislation in its natural and ordinary meaning, having regard to its context and the purpose of the enactment. The context and purpose of a law includes the history of the enactment and the state of the law when it was enacted.[26]

18 Secondly, if Parliament had intended to confine the prohibition on third party claims to actions for wrongful death, it would surely not have expressed the prohibition in terms apt to embrace all forms of third party actions for damages for injury or death and rely on no more than an implication, to be derived from the fact that the only express exceptions to the apparently general prohibition are for damages for serious injuries and a limited exception for damages for wrongful death, in order to confine the prohibition on third party actions to actions for wrongful death. So to do would be no more logical or, therefore, probable than enacting legislation in terms apt to ban the construction of all forms of building in an environmentally sensitive area, subject only to express exceptions for but two specified varieties of single storey building, with the legislative intention that, by process of implication to be derived from the two express exceptions, the enactment should be taken to mean that the prohibition applies only to single storey buildings.

19 Thirdly, s 93 is to be construed in the context of the Act as a whole and so in the context of s 94. Section 94(1) is expressed in terms of 'liability in respect of an

19 injury or death of a person'.[27] That expression has been construed as affording indemnity for all forms of liability in respect of injury or death of a person.[28] Prima facie, an Act of Parliament is to be construed so as to give the same meaning to the same words throughout the Act.[29] If so, the words 'in respect of injury or death of a person' are to be taken as having the same meaning in s 93(1) as they do in s 94(1). The clear implication, therefore, is that 'damages in any proceedings in respect of the injury ... of a person' in s 93(1) include damages for loss of servitium and loss of consortium.

20 Fourthly, the history of the enactment of s 93 suggests that it was intended to apply as much to an action for loss of servitium or consortium as it was to an action for wrongful death. Although, as the judge observed, there is no express reference in any of the extrinsic materials to an intention to abolish actions for loss of servitium or consortium arising out of transport accidents, when one looks back over the full legislative history of the provision it can be seen that the absence of any reference to actions for loss of servitium or consortium actually supports the conclusion that Parliament intended to abolish all forms of claims for damages in respect of injury or death as a result of a transport accident, other than those specifically excepted by the section.

21 When the Transport Accident Bill was first introduced into Parliament on 7 May 1986, s 93 did not did not provide for any exceptions to the prohibition against claims for damages in respect of injury or death arising out of transport accidents. As the section then stood, it was as follows:

PART 5 - LEGAL RIGHTS OUTISDE THIS ACT

Actions for damages.

93(1) A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of Part 3.

(2) Nothing in sub-section (1) affects a right to compensation under this Act or an Act or enactment referred to in section 37 or 38.

22 At that point, there was nothing in the legislation akin to the present s 93(2) and 93(8) on which to base an implication that the prohibition in s 93(1) was limited to the recovery by a plaintiff of damages for serious injury to the plaintiff or for damages for wrongful death. So, as counsel for the respondent properly conceded, at that stage there could have been no doubt that s 93(1) was intended to prohibit the recovery of damages in proceedings in respect of the injury or death of a person as a result of a transport accident, regardless of whether the proceedings were for the recovery of damages for injuries suffered by the plaintiff, or for loss of servitium or consortium, or for wrongful death of the victim.

23 The bill as originally proposed was later withdrawn when the opposition signalled that it would not be passed[30] unless the prohibition on the recovery of common law damages was modified. That led to a period of negotiation culminating in the introduction and enactment of the Transport Accident Act more or less in its present form (including the present ss 93(2) and 93(8)). Throughout that process of negotiation, there were a number of references in the Parliamentary debates to an intention to relax the prohibition to the extent necessary to preserve a victim's common law rights to sue for serious injury and for the dependants of victims to sue for damages for wrongful death. But there was never any suggestion of an intention further to relax the prohibition so as to preserve common law rights to sue for loss of servitium or consortium.

24 Moreover, given that one of the avowed purposes of the legislation was to contain the costs of transport accident compensation, by abolishing claims for common law damages for personal injuries (other than claims for damages for serious injury), and given the potential for overlap between damages for personal injury and damages for loss of consortium and, to a lesser but significant extent, damages for loss of servitium, it is surely improbable that Parliament intended to leave extant a right to recover damages (in the form of an action per quod consortium amisit or per quod servitium amisit) having the potential significantly to detract from the savings to be achieved by the abolition of claims for common law damages for personal injuries (other than claims for damages for serious injury).

25 In my view, all of that supports the conclusion that Parliament intended to abolish actions for loss of servitium and consortium arising out of a transport accident.

26 It is true that Parliament might have made the prohibition on the recovery of damages for loss of consortium and loss of servitium clearer, by enacting an explicit prohibition like s 142 of the Motor Accidents Compensation Act 1995 (NSW). It provides as follows:

142 Damages for the loss of services

(1) No damages for the loss of the services of a person are to be awarded in respect of a motor accident.

(2) Subsection (1) does not apply to the award of damages in an action brought under the Compensation to Relatives Act 1897.

(3) The provisions of section 128 (3)-(7) apply to an award of damages brought under that Act with respect to the loss of the services of the deceased person in so far as the award relates to attendant care services.

27 But the structure of the New South Wales legislation is substantially different to s 93. Broadly speaking, the New South Wales legislation consists of several express prohibitions, whereas s 93 is comprised of a general prohibition followed by express exceptions. Given the different structures of the two pieces of legislation, it is not at all surprising that the Victorian Parliament thought it unnecessary to enact a provision like s 142.

28 Finally and importantly, although in Scott v Bowyer[31] this court left open the question of whether s 93(1) abolished the action per quod servitium amisit in respect of injuries arising out of a transport accident, in CSR Ltd v Eddy[32] Gleeson CJ and Gummow and Heydon JJ observed in obiter that s 93(1) had 'in large measure' abolished the action per quod servitium amisit in Victoria. In the context in which that observation was written, it implies that their Honours considered that s 93(1) had abolished the action per quod servitium amisit in relation to injuries arising out of a transport accident. Perhaps, such a statement of opinion does not rise to the level of considered dicta in the sense identified in Farah Constructions v Saydee Pty Ltd.[33] We were told that their Honours were not taken to the relevant authorities or favoured with any substantial argument on the point. But it appears to me that it formed part of their Honours' reasoning and, therefore, is persuasive.

29 Under cover of a notice of contention, counsel for the respondent submitted that, if the judge's reasoning were incorrect, his Honour's conclusion was capable of being supported on the basis that an action per quod servitium amisit is an action in respect of loss or services as opposed to an action in respect of injuries.

30 That submission is rejected. An action per quod servitium amisit is no less an action in respect of injuries[34] than an action for wrongful death is an action in respect of death. No doubt each is for the loss to the plaintiff of the benefit of the victim. But for the reasons already expressed, it is apparent that an action for wrongful death is within the expression 'claim for damages in a proceeding in respect of death' within the meaning of s 93(1). Parity of reasoning dictates that an action for loss of servitium is also within the expression 'claim for damages in a proceeding in respect of injury' within the meaning of s 93(1).

31 The Compensation and Superannuation Amendment Act 2008 amended s 93(1) by the inserting a new s 93(1A) as follows:

(1A) For the avoidance of doubt, it is hereby declared that the effect of sub-section (1) is that any person, whether or not a natural person, cannot recover any damages in any proceedings to which that subsection applies unless the person is a natural person in which case the natural person can only bring proceedings in accordance with this section to recover damages in respect of the injury sustained by him or her or the death of a person specified in sub-section (1).

32 The amending act provides in terms that the amendment does not apply to the parties to this proceeding. The respondent submitted, however, that, despite the apparently declaratory language of s 93(1A), it should be seen as altering the law, and the fact that Parliament had in effect so altered the law supported the respondent's contention that per quod claims were not previously extinguished.

33 I reject the submission. The principle of construction for which the respondent contended is based on reasoning of Dixon J in Grain Elevators Board (Vic) v Dunmunkle Corp[35] as to the use of subsequent amendment to interpret legislation as it was before amendment. But as the Full Federal Court cautioned in Allina Pty Ltd v Federal Commissioner of Taxation[36] and Gummow J again cautioned in Interlego AG v Croner Trading Pty Ltd,[37] the kind of reasoning which was essayed in Grain Elevators has no application where the amending words have been included to remove possible doubts as the meaning of the original provision.[38] Given the declaratory language of s 93(1A), it is beyond argument that it was inserted into the Act with the legislative intention of resolving such doubts as there may have been about the meaning of s 93(1).

34 For the reasons I have given, I would allow the appeal and set aside the decision below. In lieu thereof I would declare that s 93(1), as in force at relevant times, prevented the respondent from recovering damages per actione per quod servitium amisit for the loss of services of its employee injured as a result of a transport accident occurring on or after the commencement of s 34 of the Act.

36 It seems to me that s 93(1) of the Transport Accident Act 1986 would have been clearer if the expression 'No person shall recover any damages' had been used instead of the expression 'A person shall not recover any damages'. However, for the reasons stated by Nettle JA, the proper construction of the provision at the relevant time is that it barred the recovery of any damages in respect of the injury or death of a person as a result of a transport accident as defined, except as provided by s 93. Section 93(1) therefore prevented the recovery of such damages by an action per quod servitium amisit.

[1] The section was later amended, but such that the amendment does not apply to proceedings instituted before the date of amendment, by the addition of a new sub-section (1A), as follows:

(1A) For the avoidance of doubt, it is hereby declared that the effect of subsection (1) is that any person, whether or not a natural person, cannot recover any damages in any proceedings to which that subsection applies unless the person is a natural person in which case the natural person can only bring proceedings in accordance with this section to recover damages in respect of the injury sustained by him or her or the death of a person specified in subsection (1).

[2] Sub-sections (6A), (6B) and (6C) which provide for proof of blood alcohol and other drug concentrations have not been reproduced here.

[12] See State Government Insurance Office v Rees [1979] HCA 52; (1979) 144 CLR 549; Technical Products Pty Ltd v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45, 47-48, to both of which the judge referred in his reasons.

[13] Trustees Executors and Agency Company Ltd v Reilly [1941] VicLawRp 22; [1941] VLR 110, 111 (Mann CJ); Powers v Maher [1959] HCA 52; (1959) 103 CLR 478; 485 (Kitto J).

In any action brought against the Commissioner to recover damages or compensation in respect of personal injury, the Court or jury shall not find or assess nor shall judgment be given or entered for the plaintiff for any amount of money exceeding the amount following, that is to say, - If the personal injury results in death, two thousand pounds; If the personal injury results in permanent disablement, two thousand pounds; If the personal injury results in temporary disablement, one thousand pounds.

[22] (1989) Aust Torts Reports 80-247, 68,638-9 (Murphy J, Gobbo and Phillips JJ concurring).

[23] (2003) 214 CLR 269, 284 [36]; see also Harrison v Melhem (2008) 72 NSWLR 381, 383 [8]-[13] (Spigelman CJ) and the authorities there cited.

[24] Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, 304. See also Sargood Bros v The Commonwealth [1910] HCA 45; (1910) 11 CLR 258, 279, (O'Connor J); Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328, 341, (Mason A-CJ, Wilson and Dawson JJ); Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 18, (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437-438, (Mason CJ, Brennan, Gaudron and McHugh JJ).

[25] (2001) 204 CLR 290, 298-299 [28]-[30].

[26] Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328, 341, (Mason A-CJ, Wilson and Dawson JJ); Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, 299 [30].

[27] S 94(1)(a) provides that:

(a) the owner or driver of a registered motor vehicle in respect of any liability in respect of an injury or death of a person caused by or arising out of the use of the motor vehicle in Victoria or in another State or in a Territory;

[28] Transport Accident Commission v Lease Auto Pty Ltd [2002] FCAFC 430; (2002) 125 FCR 399.

[29] Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450, 452; Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611, 618; Pearce & Geddes, Statutory Interpretation in Australia, (6th ed) [4.6].

[30] In the upper house, where the opposition commanded a majority.

[34] Petricola v Metropolitan Transport Authority, (1989) Australian Torts Reports 80-247.

[38] See further Pearce & Geddes, Statutory Interpretation in Australia, [3.34] and the cases there cited.

Motor Accidents Compensation Act 1995(NSW)

Accident (Amendment) Act 2000

Accidents Compensation Act 1999

Consolidated Railway Company's Act 1896

Workers Compensation Amendment Act 1911

Compensation and Superannuation Amendment Act 2008

Doughty v Martino Developments Pty Ltd [2010] VSCA 121

At a glance

Court

Decision date

Before

Source

Judgment (89 paragraphs)

Doughty v Martino Developments Pty Ltd [2010] VSCA 121 (2 June 2010)

Parties

Legislation Cited (9)

Cases Cited (20)