(3) The limit is 3 times average weekly earnings per week.
25 The Queensland Act contains the same definition of "personal injury damages" as found in the New South Wales Act and yet there the legislature made express provision to cap the damages for loss of services. However this Act postdates the first version of the New South Wales Act.
26 The plaintiffs stress the rule of construction that, before a provision will be taken as interfering with a common law right, there should be clear language indicating that intention. Such an intention may be displaced where without it, the provision would be inoperative or meaningless: Coco v The Queen (1994) 179 CLR 427 at 438. The plaintiffs note that s 12 of the Act has plenty of work to do even if it did not apply to actions for loss of services. It was stressed that, even where the intention of parliament to interfere with common law rights can be clearly seen, it will be presumed that the interference was only so far as was necessary to address the particular mischief with which the provision is concerned: Thomson v Australian Capital Television Pty Limited (1994) 54 FCR 513 at 526.
27 The plaintiffs argue that a claim based upon an action per quod servitium amisit is not one "in respect of damages that relate to the death or injury to a person" so that Part 2 is not engaged. It was submitted that the claim is one for damages that "relate to the loss by the corporation of the services of a particular employee". The critical question in assessing the damages is the worth of the services to the corporation and this is not a function of the employee's earnings. The distinction is between the ability of the employee to earn a salary and the ability of the employee to earn profits for the corporation. In this regard a distinction is also drawn between the words used in the Act, being damages "in respect of death or injury", and those used in the policy considered in GIO Australia v Robson, being damages "for liability in respect of the death or injury to a person".
28 Further, a claim per quod servitium amisit can only be raised in respect of the injury to, and not the death, of an employee. Therefore, it is argued that, as "personal injury damages" for the purposes of Part 2 relate to the death or injury of a person, damages for loss of services cannot fall within that definition.
29 It was submitted by the plaintiffs that, even if it were found that loss of services could fall within the definition of "personal injury damages", s 12 could have no application. This, so it was argued, is because the focus of the section is on the loss of the earning capacity of the person who is dead or injured, and not on the economic value of the services rendered to the plaintiff company or the loss actually sustained through the loss of services. It was submitted that the section only operates in relation to the damages recoverable by the person actually injured or recoverable in respect of a deceased person. The company plaintiffs are not injured and, therefore, so it is argued, the section is inapt to apply to their claim. Further it is inappropriate to refer to a company as having "gross weekly earnings". Those are words that relate to an employee not an employer, and especially not a company employer.
30 Further, it was submitted that the calculus by which the limitation is determined under s 12 is inappropriate to be used in relation to a claim for loss of services being based as it is upon the total earnings of "all employees" in the State. The plaintiffs point to the distinction between the scheme under s 12(3) and s 125 of the Motor Accidents Compensation Act where the "net weekly earnings" of the injured or deceased person are limited to a specific amount of $2,500. They also point to the difference between a reference under that Act to the net weekly earnings of the injured or deceased person whereas under the Act it is a reference to the gross weekly earnings of the claimant.
31 The plaintiffs also point to s 15C of the Act that deals with loss of superannuation entitlements as indicating that the Part is concerned with injuries or death to employees rather than to the loss to the employer occasioned by injuries suffered by an employee.
32 Put succinctly the plaintiffs argue that Part 2 does not obviously include compensation by way of lost services but rather the language and concepts used in the Act are inappropriate to determine the damages suffered by the companies in respect of the lost services of an employee. Therefore, rather than the intention of the Parliament being plainly to cap damages for loss of services, the language used in Part 2 is inconsistent with such an intention.
Determination
33 During the course of argument I raised with Mr Garling the possible policy that might have been behind the Parliament determining in effect to exempt actions per quod servitium amisit from the ambit of Part 2. I appreciate that this is not a decisive consideration but, if there were a clear policy that might account for a decision not to bring such a claim within the ambit of the Act, and Part 2 in particular, that might give confidence in an interpretation of the provisions of the Act that produces such a result. The only possible reason that senior counsel for the plaintiffs could give was the relative rarity of such proceedings. With respect this is not convincing.
34 The defendants took me to the second reading speech of the Premier when introducing the bill as an aid in pursuing a purposive approach to the interpretation of the relevant provisions: see s 33 of the Interpretation Act 1987. On 28 May 2002 the Premier introduced the bill as follows (my underlining):