Section 3B(2)(c1)
Insert after section 3B(2)(c): (c1) section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)),"
114The amendments made by the Civil Liability Amendment Act 2006 provide a further reason why the construction that I have placed (tentatively) on "personal injury damages" in s 338 2004 LP Act is correct. The amendments made by the 2006 legislation to s 3B show that some of the provisions of Part 2 Civil Liability Act can apply to civil liability in respect of an intentional act that is done with intent to cause injury. They are, pursuant to s 3B(1)(a)(i) and (ii), the provisions of s 15B and s 18(1) insofar as it applies to damages arising under s 15B.
115How s 11A operates, in light of the new s 3B, is that Part 2 can apply to an award of damages that relate to the death of or injury to a person for an intentional act done with intent to cause injury, insofar as one of the heads of damage is for loss of the ability to provide gratuitous care services, of the type permitted by s 15B. When damages for those heads of damage are " personal injury damages " , it would be an odd result if other heads of damage for an intentional act done with intent to cause injury were not also " personal injury damages " .
116For these reasons, in my tentative view the trial judge was mistaken in construing the definition of "personal injury damages" in s 337(1) 2004 LP Act as invoking both s 11 and s 11A Civil Liability Act 2002 . Rather, the meaning of " personal injury damages " in Part 2 of the Civil Liability Act is the meaning that s 11 says it has.
117MACFARLAN JA : I agree with Campbell JA. In particular I agree with his Honour that the Court should in this case follow its earlier decision in Cross v Certain Lloyds Underwriters [2011] NSWCA 136 as that is a prior decision and is not plainly wrong. Nevertheless it is appropriate that I indicate that my opinion, like the tentative opinion expressed by Campbell JA, is contrary to the views expressed in that case.
118I appreciate that there are contextual and policy arguments that favour the views expressed in Cross but to my mind the relevant part of the text of s 337(1) is clear and must be given effect to. Section 337(1) states that "personal injury damages has the same meaning as in Part 2 of the Civil Liability Act 2002" (emphasis added). The "meaning" of the term in Part 2 is given by the definition there appearing. The scope of the application of Part 2 is a different question.
119There is an ongoing debate about the emphasis to be given in statutory interpretation to context and purpose on the one hand and text on the other (see His Honour JJ Spigelman AC, "The Intolerable Wrestle: Developments in Statutory Interpretation" (2010) 84 Australian Law Journal 8222). However it can in my view at least be said that the literal meaning of the text of a statutory provision must prevail unless it can be disregarded upon the ground that that literal meaning gives rise to an absurdity or the text is sufficiently tractable to accommodate the meaning suggested by contextual or policy considerations (see for example Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [27] - [33]; Catlow v Accident Compensation Commission [1989] HCA 43; (1989) 167 CLR 543 at 550, referred to in Saeed at [33]). I do not consider that either of these conditions is present here.
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Decision last updated: 05 July 2011