STATE OF NEW SOUTH WALES v MASTRONARDI

LOWER COURT District Court JURISDICTION : LOWER COURT DC 4009/01 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40762/02 DC 4009/01

SPIGELMAN CJ HANDLEY JA YOUNG CJ in Eq

Monday 17 March 2003 STATE OF NEW SOUTH WALES v Fabian MASTRONARDI Judgment 1 SPIGELMAN CJ: This is an application for leave to appeal from an interlocutory judgment of Acting Judge Gamble in the District Court of New South Wales. Her Honour allowed an application to amend a statement of claim in proceedings in that Court so as to add a new claim for aggravated damages. The State of New South Wales seeks leave to appeal on the basis that the decision raises an issue of principle as to the meaning of certain provisions of the Civil Liability Act 2002. The Claimant also submits that this is a matter in which the submissions on leave and submissions on the substantive appeal are the same and it is an appropriate case for a concurrent hearing. 2 In my opinion the matter does raise an issue of principle for which leave should be granted and it plainly is a case in which a concurrent hearing is appropriate. 3 The Opponent/Respondent, Mr Mastronardi, is no longer represented in these proceedings and does not appear today. At an earlier stage, he had filed on his behalf a summary of arguments, but has not had an opportunity of replying to the written submissions filed last week on behalf of the Appellant. The Court heard argument in the absence of the Respondent on the basis that, if the Court was able to deal with the matter without hearing submissions from the Respondent, it would be desirable to do so. 4 Mr Mastronardi alleges that he sustained injuries on 28 November 1998 whilst an inmate at the Metropolitan Remand and Reception Centre at the Silverwater Correctional Centre. He asserts that those injuries were a result of the negligence of the State in failing to place him in protective custody after he reported that he was in fear of being attacked by other inmates. 5 The sequence of dates is of significance:

(1) On 2 May 2001 Mr Mastronardi filed a statement of claim in the District Court.

(2) By letter dated 26 March 2002 Mr Mastronardi notified the State that the statement of claim would be amended to claim aggravated damages.

(3) By notice of motion filed on 9 May 2002 Mr Mastronardi sought leave to amend the statement of claim.

(4) By judgment delivered on 2 August 2002 Gamble ADCJ granted the leave to amend sought. 6 The significance of the date 26 March 2002, being the date on which notification was given, arises because it is six days after the date 20 March 2002, identified as the pertinent date with respect to notification of a "claim" in cl 4 of Sch 1 of the Civil Liability Act 2002. 7 That Act modified the law of negligence in a number of specific respects. The particular provisions pertaining to the present proceedings are s21 of the Act and cl 4 of Sch 1, a schedule concerned with Savings and Transitional provisions. These sections relevantly provide: "21 In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damage or damages in the nature of aggravated damages." "4(1) Part 2 of this Act does not apply to or in respect of an award of damages on a claim against the Crown if the Crown has been notified in writing of the claim before 20 March 2002 and: (a) the damages are awarded (or are the subject of a settlement or consent order made) before 1 September 2002, or (b) proceedings on the claim are commenced in the court before 1 September 2002, or (c) proceedings on the claim cannot be commenced before 1 September 2002 because the injury concerned has not stabilised. (2) This clause does not apply to an award in respect of a health care claim as defined in the Health Care Liability Act 2001. " 8 The word "claim" is not defined in the Act. However, the word "claimant" was defined in s 3 of the Act as originally passed, but this definition has subsequently been removed. That definition was: "Claimant means a person who makes or is entitled to make a claim for personal injury damages." 9 This appeal turns on the proper construction of the words in cl 4 of Sch 1 of the Act namely: "A claim against the Crown ... notified ... before ..." (the stated date). 10 Of particular significance is cl 2 of Sch 1: "2(1) Part 2 of this Act extends to an award of personal injury damages that relates to an injury received, or to a death resulting from an injury received, whether before or after the commencement of this Act. (2) However, Part 2 of this Act does not apply to or in respect of: (a) an award of damages in proceedings commenced in a court before the commencement of this Act, or (b) an award of damages, or settlement or consent orders in respect of damages, made before the date of assent to this Act." 11 The original statement of claim in the District Court contained certain Particulars of Disability and also Particulars of Economic Loss. The statement of claim as originally filed concluded with the words "And the plaintiff claims damages with interest thereon under s.83A of the Act." 12 The proposed amendment by the addition of par [7] to the statement of claim, being the amendment which her Honour allowed, added a new paragraph to the following effect: "As a result of the said injuries and disabilities, the Plaintiff claims aggravated damages". Certain Particulars of Aggravated Damages were then set out. It may be that some of these particulars go beyond what would be recoverable by way of aggravated damages, but that is not a matter for this Court on this occasion. 13 In her reasons Gamble ADCJ stated that the amendment did not constitute a new claim, on the basis that aggravated damages were in fact a form of compensatory damages. Her Honour concluded as follows: "... although most authors (Luntz, Assessment of Damages for Personal Injury and Death , 4th ed., 2002, 1.7.14 and McGregor on Damages , 16th ed, 1997, 2042) and the case law ( Hunter Area Health Service v Marchlewski [2000] NSWCA 294 26/10/00 and Kralj v McGrath [1986] 1 All ER 54) agree there is some inconsistency in the use of the terms, the conservative view seems to be that aggravated damages are contained within compensatory damages, and unless special statutory provision is made, need not be separately pleaded. The definition of aggravated damages given by Taylor J in Uren v John Fairfax & Sons Pty Limited (1996) 117 CLR 118, 130 holds good in Australia. This means the applicant is not barred by the Civil Liability Act 2002 from amending the statement of claim to add para. 7." 14 The submissions on behalf of the State of New South Wales in this Court assert that the authorities referred to by her Honour do not support the proposition that aggravated damages need not be separately pleaded. It further submits that the general requirement found in Pt 9 r 9 of the District Court Rules, namely that: "The plaintiff shall, in his originating process, plead specifically any matter which, if not pleaded specifically, may take the defendant by surprise."

applies to these proceedings and that there ought be a separate pleading of aggravated damages. 15 The written submissions originally filed on behalf of Mr Mastronardi asserted that, as he had instituted a claim for personal injury damages before the relevant date, the particularisation of, or even the pleading of, aggravated damages as an aspect of the claim, was not affected by the Civil Liability Act 2002. The submission was to the effect that the requirement was to notify a claim, not to notify every aspect of, or to particularise each head of damage, prior to the relevant date. It was submitted that aggravated damages were an aspect of personal injury proceedings, not a separate claim and definitely not a separate cause of action. 16 I do not find it necessary to determine these proceedings on the basis of whether or not aggravated damages need to be separately pleaded. I have little doubt that pursuant to Pt 9 r 9 of the District Court Rules a pleading was required. However the issue of statutory construction does not turn on whether or not aggravated damages are a form of compensatory damages. Nor does it turn on whether or not such damages need to be separately pleaded. 17 In my opinion, the matter turns on the proper construction of the words used in the Schedule, particularly cls 2 and 4 of that Schedule as quoted above. In this regard I have reached the conclusion that her Honour was correct, but not for the reasons that her Honour gave. 18 As originally enacted s21 was not a separate Division of the Act but was one of a number of provisions of a miscellaneous character contained in what was then Div 4 of the Act. The provisions of Div 4 were plainly drawn, almost word for word, from the legislation passed in the previous year by the Parliament of New South Wales, the Health Care Liability Act 2001. 19 The transitional provisions in both cl 2 and cl 4 of the Civil Liability Act 2002 apply to each of the respective limitations on the award of damages found in Pt 2 of the Civil Liability Act. These include:

(1) Limiting the amount that can be recovered for economic loss (s12).

(2) Identifying the manner in which the court should determine and quantify future economic loss (s13).

(3) Specifying a discount rate for future economic loss (s14).

(4) Limiting and restricting the award of damages for gratuitous attendant care services (s15).

(5) Establishing a threshold and cap for non-economic loss and determining the manner of computation (ss16 and 17).

(6) Proscribing payment of interest on damages for non-economic loss or gratuitous attendant care services and determining the manner of computation and the rate of interest that applied in other cases (s18).

(7) Determining the means for computation between a defendant and a third party, when the latter is not subject to the restrictions on damages contained in Pt 2 of the Act (s19).

(8) Permitting contributory negligence of a deceased person to be taken into account in an award of damages to a relative (s20).

(9) Removal of the power to award exemplary, punitive and aggravated damages (s21). 20 It is a feature of all the sections to which I have referred, that each focuses on the power of the court, as at the time of determination of the proceedings, that is, they either proscribe certain kinds of awards for damages or limit the ability of the court to make awards other than in accordance with the particular regime in the respective sections. This general approach is confirmed in s10 of the Act which provides: "10 A court cannot award damages, or interest on damages, to a claimant contrary to this Part." 21 The issue that arises in the present case is whether or not the words in cl 4(1) "an award of damages on a claim against the Crown" use the word "claim" in the sense of an assertion of right to a cause of action or in the sense of a head of damage claimed in proceedings. If it is the latter and a separate pleading of the relevant head of damage found in Pt 2 was required, then the appellant submits the amendment allowed in the present proceedings is not permissible. 22 If however the word "claim" is used in the sense of an assertion of right prior to proceedings having been instituted then, in my opinion, her Honour was correct to allow the amendment. 23 There are two particular indications as to why the proper construction of these words in cl 4(1) should not be limited in the manner for which the Appellant contends. 24 The first indication is the definition of "claimant" which appeared in the Act as originally enacted. Although "claim" is not defined the traditional principles of statutory interpretation, as reflected in s7 of the Interpretation Act 1987, indicate that, when a word is defined, cognate words have corresponding meanings. 25 The concept in the s3 definition of "claimant", I have quoted above, indicates reference to a person who not only makes but also a person who is entitled to make a claim for personal injury damages. The expansion of the idea of a "claim" to encompass a person entitled to make a "claim" suggests that where used in the Act, the word was intended to encompass persons who had not yet instituted proceedings. 26 The second indication that the construction for which the Appellant contends should not be accepted is found in the provisions of cl 2 of Sch 1. That clause states, to reiterate, that: "Part 2 of this Act does not apply to ... an award of damages in proceedings commenced ... before the commencement of this Act." 27 Those words refer to a power to make an award with respect to proceedings. The construction of cl 4, for which the Appellant contends would require the court to read down the word "proceedings" so as not to extend to particular matters which are not specifically pleaded, but which ought to be pleaded and, presumably, although it is not necessary for the purposes of this particular case, would also extend to matters that are not particularised, even though they ought be particularised. I do not believe that the word "proceedings" in cl 2 should be read down in that way. 28 The process of amendment of pleadings and provision of further particulars in proceedings properly commenced was not, in my opinion, within the scope of this new legislative regime. Parliament intended, as did the Health Care Liability Act 2001 before it, to prevent persons from commencing new proceedings, subject of course in the case of the Civil Liability Act to cl 4, but not to prevent the normal course of amendment of particulars and pleadings of a character which does not change the nature of the "proceedings" so as to constitute a new and different kind of proceedings. 29 The addition of a claim for aggravated damages in a personal injury case, or the addition of the kinds of heads of damages which are dealt with in the other sections of Pt 2, do not in my opinion change the character of proceedings for personal injury in a way contrary to the intent of the legislation. 30 If one reads cl 2 of Sch 1 to apply to all proceedings, subject to proper amendment or further particularisation, then it meshes perfectly with cl 4. Clause 4 would then extend to matters in which an assertion of right has been made against the Crown prior to a certain date, but proceedings had not at that date been instituted. 31 There is a restriction as to the time within which proceedings can be instituted against the Crown, pursuant to either cl 4(1)(b) or (c). By cl 4 the Crown has subjected itself to a liability which other defendants, against whom claims for personal injury are made, are not subject, in accordance with the application of cl 2. 32 In my opinion, if the word "claim" in cl 4 is read in the way for which the Appellant contends, then it would cut down the scope of the protection for existing proceedings given by cl 2. 33 In my view it was not the intention of Parliament that there be an overlap between the two clauses. Clause 2 was intended to apply to all proceedings that had been commenced. Clause 4 was intended to apply to cases in which an assertion of right had been made, but proceedings had not been commenced. It was in that sense the word "claim" was used. 34 The Plaintiff below made an assertion of right against the State for damages, and the pleadings encompassed a claim for damages. It did not, as originally drafted, comply with the District Court Rules to plead aggravated damages but, in my opinion, it was within the protection of cl 2 of proceedings already commenced in the court. The notification of the heads of damage to be relied upon did not need the protection of cl 4 and, accordingly, the fact that the notification occurred after the date of 20 March 2002 contained in cl 4, ought not to have determined the outcome of the application to amend in the District Court. 35 In my opinion the appeal should be dismissed with costs. 36 HANDLEY JA: I agree. 37 YOUNG CJ at Eq: I also agree. 38 SPIGELMAN CJ: The orders of the Court are as I proposed. **********

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