Taylor v Owners - Strata Plan No 11564

D C Pearce and R S Geddes, Statutory Interpretation in Australia, 7th ed, 2011, LexisNexis (at [12.7])

Second Reading Speech to the Civil Liability Bill (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 May 2002 Vol 292 at 2085, 2087) Category: Principal judgment Parties: Susan Joy Taylor in her own capacity and for and on behalf of the dependants of the late Craig Taylor (Applicant) The Owners - Strata Plan No 11564 (First Respondent) Alison Margaret Lamond (Second Respondent) Gordon Sunn (Third Respondent) Clifford Sunn (Fourth Respondent) Duncan Rae (Fifth Respondent) Manly Council (Sixth Respondent) Ryan Winton Taylor (Seventh Respondent) Lisa Jane Taylor (Eighth Respondent) Mitchell Alan Taylor (Ninth Respondent) Zara Zoe Taylor (Tenth Respondent) Representation: Counsel:

Mr J Poulos QC/Ms V M Heath (Applicant) Mr G M Gregg/Ms J E Maconachie (First to Fourth Respondents) Mr L King SC/Mr S Glascott (Sixth Respondent) Submitting appearances (Fifth, Eighth, Ninth and Tenth Respondents) Solicitors:

Craddock Murray Neumann (Applicants) Meridian Lawyers (First to Fourth Respondents) Addisons Commercial Lawyers (Fifth Respondent) DLA Piper Australia (Sixth Respondent Milne Berry Berger & Freeman (Eighth and Ninth Respondents) Craddock Murray Neumann (Tenth Respondent) File Number(s): CA 2012/264824 Decision under appeal Jurisdiction: 9111 Citation: Taylor v The Owners - Strata Plan No 11564 [2012] NSWSC 842 Date of Decision: 2012-07-27 00:00:00 Before: Garling J File Number(s): SC 2010/405732

HEADNOTE [This headnote is not to be read as part of the judgment] On 7 December 2007 Mr Craig Taylor was killed when a shop awning collapsed on him. The appellant, his widow, brought a claim under the Compensation to Relatives Act 1897 (NSW). The claim included an amount for lost expectation of financial support. Section 12 of the Civil Liability Act 2002 (NSW) relevantly provides: "(1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or (c) for the loss of expectation of financial support. (2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant's gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award." Garling J heard a separate question in the proceedings: "Insofar as the plaintiffs claim damages pursuant to ss 3 and 4 of the Compensation to Relatives Act 1897, is any award of damages limited by the operation of s 12(2) of the Civil Liability Act 2002?" His Honour answered the question in the affirmative. In particular, his Honour construed the word "claimant" in s 12(2) as including a deceased person, the injury to whom gives rise to a claim under the Compensation to Relatives Act. The plaintiff appealed to this Court. The issues for determination on appeal were: (i) whether part 2 of the Civil Liability Act applies to Compensation to Relatives Act claims, and (ii) if so, whether s 12(2) if the Civil Liability Act limits damages payable under the Compensation to Relatives Act. The Court held, granting leave to appeal but dismissing the appeal: In relation to (i) (per McColl JA, Hoeben JA agreeing)

1. Part 2 applies "to and in respect of an award of [damages that relate to the death of or injury to a person]". The phrase "in respect of" is capable of having a wide meaning, dependent on context. There is a sufficient connection between a Compensation to Relatives Act claim and the "death of... a person" to satisfy the term "relate to". Other contextual indications in the Civil Liability Act support this conclusion: [16], [19], [20] and [22] Workers' Compensation Board (Q) v Technical products Pty Ltd [1988] HCA 49; 165 CLR 642; Unsworth v Commissioner for Railways [1958] HCA 41; 101 CLR 73 and Doughty v Martino Developments Pty Ltd [2010] VSCA 121; 27 VR 499 considered. (per Basten JA)
2. The question whether damages available under the Compensation to Relatives Act were damages that "relate to" the death of the deceased was resolved in the affirmative by the primary judge. The dispute was not reopened on appeal. For the present purposes it may be accepted that the relevant connection is established: [61] In relation to (ii) (per McColl JA, Hoeben JA agreeing):
3. The Court is required to prefer a construction of the Civil Liability Act that promotes the purpose. The purpose of s 12 is to limit the amount of damages that may be awarded in personal injury claims. The Court can depart from the literal interpretation of a legislative provision when such an interpretation does not conform to the legislative intent. Such departure can extend to reading words into legislation if the conditions identified by Lord Diplock in Jones v Wrotham Park Settled Estates are satisfied: [32] - [34], [37] and [38] and [43] Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; 293 ALR 412; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; 147 CLR 297; Luke v Inland Revenue Commissioners (1963) AC 557; Jones v Wrotham Park Settled Estates [1980] AC 74 and Mills v Meeking [1990] HCA 6; 169 CLR 214 considered and applied.
4. Although the literal meaning of s 12(2) does not permit the limitation contended for by the respondents, properly construed s 12(2) so limits an award based on "the claimant's or deceased person's gross weekly earnings": [24] and [43] (per Basten JA, dissenting)
5. The reference to death in s 12(2) could have work to do in relation to a cause of action which survives death and enures for the benefit of the deceased's estate. It does not necessarily refer to a fatal accident claim: [70]
6. It is unclear what answer Parliament would have given had it considered the operation s 12 in relation to a claim under the Compensation to Relatives Act. Parliament did not adopt the language used in other statutes to refer to claims under the Compensation to Relatives Act, nor did it refer specifically to that Act: [81]-[83], [94] R v PLV [2001] NSWCCA 282; 51 NSWLR 736; Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379 discussed; Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275; Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292; Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 184 LGERA 104 referred to.
7. A court should be cautious of concentrating on a general legislative intention to override the ordinary meaning of a statutory text: [86] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27; Carr v Western Australia [2007] HCA 47; 232 CLR 138; Rail Corporation New South Wales v Brown [2012] NSWCA 296 referred to.
8. Broad statements that the Civil Liability Bill were intended to limit awards of damages because of rising premiums for insurance do not mean that the Court is either required or entitled to stretch the language used by Parliament to cover particular cases which, on a literal reading, do not fall within its terms: [87]

Judgment 1McCOLL JA: The facts of this appeal are set out in Basten JA's reasons. I adopt and will not repeat his Honour's exposition of the facts and relevant legislation save where necessary. 2The central issue on appeal is whether s 12(2) of the Civil Liability Act 2002 (the "Liability Act") applies to a claim made under the Compensation to Relatives Act 1897. 3In my view, although the significance of the issue warrants a grant of leave to appeal, the appeal should be dismissed with costs.

Compensation to Relatives Act claims 4The cause of action conferred by the Compensation to Relatives Act, which reproduced Lord Campbell's Act (9 & 10 Vict. c. 93 - 1846), created an entirely new statutory cause of action in the representatives of a deceased person, distinct from any right of action that the deceased would have had: Woolworths Ltd v Crotty [1942] HCA 35; (1942) 66 CLR 603 (at 618) per Latham CJ. 5The court's jurisdiction to entertain a Compensation to Relatives Act claim depends upon the plaintiff establishing that "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 ... ". In such circumstances, "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": s 3(1), Compensation to Relatives Act. Such damages are "proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought": s 4(1), Compensation to Relatives Act. 6Compensation to Relatives Act actions are brought either "by and in the name of the executor or administrator of the person deceased" (s 4(1), Compensation to Relatives Act) or, in the circumstances set out in s 6B, by "the person or any one or more of the persons for whose benefit the action might be brought by such an executor or administrator". 7As McHugh J explained in De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338 (at [91]), "from the beginning the term 'injury' [in s 4(1)] was read as confined to pecuniary loss" and, accordingly, "damages are 'for the loss of the expectation of financial support by the deceased'". Thus damages in Compensation to Relatives Act actions are calculated by reference to the pecuniary benefit that could reasonably have been expected to accrue to the claimant from the continuance of the life had death not occurred: De Sales v Ingrilli (at [11]) per Gleeson CJ; generally (at [91] - [103]) per McHugh J; (at [128]) per Kirby J. 8As will be apparent, and as the primary judge explained, the "typical or paradigm" Compensation to Relatives Act claim "will only relate to the deceased's income, and perhaps other financial resources of a capital kind": Taylor v The Owners - Strata Plan No 11564 [2012] NSWSC 842 (at [57] - [59]) per Garling J; see also Basten JA (at [57]). Or, to put it another way, the gross weekly earnings of a Compensation to Relatives Act claimant in the "typical or paradigm" claim are, prima facie, not relevant to the assessment of damages in such an action. I say "prima facie" because if the action is brought pursuant to s 6B by a person for whose benefit the executor or administrator ought to have brought it, it is conceivable that evidence of his or her gross weekly earnings may be adduced if that claimant contended those earnings demonstrated the pecuniary benefit he or she could reasonably have expected from the continuance of the life had death not occurred. It would still be necessary in that case to have regard to the deceased's gross weekly earnings.

Does Part 2 of the Liability Act operate with respect to Compensation to Relatives Act claims? 9The first question is whether Part 2 of the Liability Act operates with respect to Compensation to Relatives Act claims. 10Part 2 is expressed to apply "to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B": s 11A(1), Liability Act. Compensation to Relatives Act claims are not referred to in s 3B. 11"Personal injury damages" are defined in s 11 of the Liability Act to mean "damages that relate to the death of or injury to a person". "Damages" are defined in s 3 of the Liability Act to include "any form of monetary compensation". 12The appellant submitted that Compensation to Relatives Act damages do not relate directly to the "death of or injury to a person", but only to the pecuniary injury suffered by specified relatives as a result of the death and that this is an action for pure economic loss. Whether or not such an action can be so described, it is an "action for damages" (s 3, Compensation to Relatives Act) seeking the recovery of "monetary compensation" (s 3, Liability Act) for the pecuniary loss specified dependants suffered by the death: Woolworths Ltd v Crotty (at 618) per Latham CJ. 13However that is not a sufficient answer to the question under consideration if Compensation to Relatives Act damages do not "relate to the death of ... a person". 14The "nature and breadth of the relationships" covered by relational terms such as "relate to" will depend upon their statutory context and purpose: Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390 (at [24]) per French CJ; The Queen v Khazaal [2012] HCA 26; (2012) 86 ALJR 884 (at [31]) per French CJ. 15In HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126; (2005) 143 FCR 553 (at [35]), Hill J (Stone and Allsop JJ agreeing) said: "It was common ground that the words 'relates to' are wide words signifying some connection between two subject matters. The connection or association signified by the words may be direct or indirect, substantial or real. It must be relevant and usually a remote connection would not suffice. The sufficiency of the connection or association will be a matter for judgment which will depend, among other things, upon the subject matter of the enquiry, the legislative history, and the facts of the case. Put simply, the degree of relationship implied by the necessity to find a relationship will depend upon the context in which the words are found. ... " French CJ and Hayne J referred to his Honour's statement with approval in Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 (at [25]). 16The connecting phrases "in respect of", "relating to" and "related to" do not seem to have been treated by courts as differing in substance: D C Pearce and R S Geddes, Statutory Interpretation in Australia, 7th ed, 2011, LexisNexis (at [12.7]). Like "related to", the phrase "in respect of" is capable of having a wide meaning, ultimately dependent on context: Workers' Compensation Board (Q) v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642 per Wilson and Gaudron JJ (at 646 - 652); Deane, Dawson and Toohey JJ (at 653 - 655). 17In Unsworth v Commissioner for Railways [1958] HCA 41; (1958) 101 CLR 73 (at (90)) (which concerned the question whether a claim for contribution by a joint tortfeasor was an "action ... to recover damages or compensation in respect of personal injury" within the meaning of s 121 of The Railways Acts 1914 to 1955 (Qld)), Taylor J said there was "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 is not 'an action to recover damages or compensation in respect of personal injury'". (Section 12 of The Common Law Practice Acts 1867 to 1940 reproduced Lord Campbell's Act). As Nettle JA (with whom Mandie JJA and Emerton AJA agreed) explained in Doughty v Martino Developments Pty Ltd [2010] VSCA 121; (2010) 27 VR 499 (at [7]), it was apparent that his Honour's observation was "not to be taken literally [as] [t]he 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'". 18Doughty v Martino Developments Pty Ltd concerned the question whether the phrase "any proceedings in respect of the injury or death of a person" in s 93(1) of the Transport Accident Act 1986 (Vic) included an action for damages for the loss of services of an employee injured as a result of a transport accident. After analysing (at [8] - [11]) the cases to which Taylor J had referred in Unsworth, Nettle JA said: "[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 than 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." (Emphasis in original) 19Nettle JA's remarks, even though expressed of the relational term "in respect of" are, in my view, clearly apposite to s 11A(1) understood in the sense defined in s 11, that is to say as "[t]his Part applies to and in respect of an award of [damages that relate to the death of or injury to a person]": Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 (at 635) per Barwick CJ, McTiernan and Taylor JJ; Kelly v R [2004] HCA 12; 218 CLR 216 at [103] per McHugh J. 20There is, in my view, a real and relevant connection between a Compensation to Relatives Act claim and the "death of ... a person" such as to satisfy the term "relate to". Such a claim is "a derivative action, dependent on or secondary to rights of action vested in the deceased immediately before his or her death" and "based upon the death of the person injured by the wrongful act, neglect or default [because] it does not lie unless and until the death has occurred": Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 (at 104) per Samuels AP (Clarke JA agreeing); Mahoney JA (at 109 - 110). Mangion was overruled in Trustees of the Sydney Grammar School v Winch [2013] NSWCA 37, but not on this point. 21Further, if Unsworth had left the issue in any doubt, then as Nettle JA said (at [13]), the inclusion of express reference to "death of ... a person" in s 11 effectively puts the conclusion that Part 2 applies to Compensation to Relatives Act claims beyond doubt. 22There are, moreover, as the primary judge recorded (at [51]), many other contextual indications in the Liability Act that it is intended to apply to Compensation to Relatives Act actions. Significant among the matters to which his Honour referred are the fact that such actions are not specifically excluded by s 3B, the only provision of the Act by which its application to all civil claims is specifically limited, the express reference to "a claim for damages brought under the Compensation to Relatives Act 1897" in s 5T and the inclusion of the phrase "the loss of expectation of financial support" in s 12(1)(c). As the previous discussion indicates, the latter phrase reflects the High Court's characterisation of Compensation to Relatives Act damages. Moreover, as his Honour later observed (at [61]), "the words in s 12(2), which appear in parentheses, namely '(but for the injury or death)' clearly suggest that the relevant compilation of the gross weekly earnings are those of the deceased person, upon whose earnings, the loss of expectation and financial support is based". Finally, (at [68]), the earnings of the executor or administrator of the person deceased who brings the Compensation to Relatives Act action, are "irrelevant to the calculation of proper damages". 23Accordingly, in my view the primary judge did not err (at [49] - [54]) in holding that Part 2 of the Liability Act applies to Compensation to Relatives Act actions.

The construction of s 12(2) of the Liability Act 24The next question is whether s 12(2) permits a limitation on an award under that Act based on the deceased's gross weekly earnings. I agree with Basten JA (at [65]) that the literal meaning of s 12(2) does not permit such a limitation. However I disagree, with respect, with his Honour's conclusion that such a limitation is not permitted once s 12(2) is properly construed. 25Section 12 relevantly provides: "12 Damages for past or future economic loss-maximum for loss of earnings etc (1) This section applies to an award of damages: ... (c) for the loss of expectation of financial support. (2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant's gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award." 26The appellant accepts that s 12(1)(c) is apt only to describe a claim under the Compensation to Relatives Act. That proper concession derives from the nature of a damages award under that Act as I have explained. 27However the appellant submits that, giving the word "claimant" its natural and ordinary meaning as "someone who makes a claim" (Macquarie Dictionary, 5th ed, 1999) or "one who makes or enters a claim; one who has a claim upon anything" (Oxford English Dictionary Online), s 12(2) of the Liability Act cannot be construed to apply to the earnings of the deceased person. This is because the person killed by the wrongful act which gives rise to the Compensation to Relatives Act claim is neither the person who makes the claim, nor the person entitled to do so. 28The respondents' argument, which the primary judge accepted, is that the appellant's construction of s 12(2), while according with the literal language of s 12(2), leads to an interpretation manifestly inconsistent with the purpose of the Liability Act. Accordingly they contend the primary judge was correct (at [75]) to construe s 12(2) as follows: "In the case of any such award, the court is to disregard the amount (if any) by which: (a) in the case of an injury, the claimant's; or (b) in the case of death, the deceased's gross weekly earnings would (but for the injury or death) have exceeded an amount that is three times the amount of average weekly earnings at the date of the award." 29This formulation of s 12(2) appears to be based on the wording in s 151I of the Workers Compensation Act 1987 ("WCA Act") and s 125 of the Motor Accidents Compensation Act 1999 ("MAC Act") each of which injuncts the court in awarding damages for "past or future economic loss" (MAC Act) or "past and future loss of earnings" (WCA Act) "to disregard the amount (if any) by which the injured or deceased person's [worker's - WCA]] net weekly earnings would (but for the injury or death) have exceeded" a prescribed amount. Section 125(1)(b) of the MAC Act is in the same terms as s 12(1)(c) of the Liability Act. 30The wording in s 12(2) can be traced to s 9 of the Health Care Liability Act 2001. Subsection 9(1)(c) was in identical terms to s 12(1)(c) of the Liability Act, while s 9(2) was in substantially the same terms and provided: "(2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant's net weekly earnings would (but for the injury or death) have exceeded $2,603." 31Section 9 appeared in Part 2 of the Health Care Liability Act. Part 2 was repealed on the enactment of the Liability Act. The connection between the provisions in the two Acts can be seen in Premier Carr's statement in the Second Reading Speech to the Civil Liability Bill (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 May 2002 at 2085) that: "The reforms that I am introducing today in stage one are tried and tested: they have worked in health care liability, in motor accidents and in workers compensation." 32In construing the Liability Act, the Court is required to prefer a construction that would promote the purpose underlying the Act to a construction that would not promote that purpose (s 33, Interpretation Act 1987), albeit that the legislative purpose must be discerned from the statutory text, not from a priori assumptions: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 293 ALR 412 ("Certain Lloyd's Underwriters") (at [26]) per French CJ and Hayne J. 33The MAC Act, and s 125 in particular, have been described as showing "a clear legislative intention that there be an effective limit put on claims by dependants of persons whose efforts would have produced very high financial benefits to those dependants, irrespective of how the remuneration or financial gains of those persons is structured or how their wealth-creating capacity is exercised": Kaplantzi & Anor v Pascoe [2003] NSWCA 386; (2003) 40 MVR 146 (at [32]) per Hodgson JA (McColl JA and Cripps AJA agreeing). I discern the same purpose in s 12 of the Liability Act both in its terms and read in its statutory context. As Kiefel J said in Certain Lloyd's Underwriters (at [94]), "[t]he evident purpose of the Liability Act is to control, in the sense of limit, the amount of damages which may be awarded in personal injury claims"; see also (at [38]) per French CJ and Hayne J; (at [70]) per Crennan and Bell JJ. So to conclude does not assume a general purpose with a view to making the statutory provisions accord with the assumption. The legislative purpose emerges from the plain text of the Liability Act. 34As I have already concluded, Part 2 of the Liability Act applies to Compensation to Relative Act claims. The question is whether, applying principles of statutory interpretation, it is open to the Court to give effect to the statutory purpose, notwithstanding the literal or grammatical construction of s 12(2). In my view it is. The omission from s 12(2) of a reference to "the deceased's gross weekly earnings" is clearly a drafting error. 35Where the Court can discern legislative purpose from the text, its "proper function is to see that it is hit: not merely to record that it has been missed": Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 (at 424) per McHugh JA, quoting Lord Diplock, "The Courts As Legislators", The Lawyer and Justice, Sweet & Maxwell, 1978 (at 274). 36In certain circumstances, of which in my view the present case is an example, the question arises as to whether the Court can read words into legislation in order to give effect to the statutory purpose - in this case words which would make it clear that in dealing with a Compensation to Relatives Act action, s 12(2) applies to the deceased's gross weekly earnings. 37The Court can depart from the literal interpretation of a legislative provision when "the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions": Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297 (at 306) per Gibbs CJ; (at 321) per Mason and Wilson JJ. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result, that the words of the enactment must prevail: Luke v Inland Revenue Commissioners (1963) AC 557 (at 577) per Lord Reid; cited with approval in MacAlister v The Queen [1990] HCA 15; (1990) 169 CLR 324 (at 330) per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ. In the latter case the High Court read the words "an offence" in s 77 of the Penalties and Sentences Act 1985 (Vic) as "his or her offence" which had the effect of ensuring there was a right of appeal to the Full Court of the Supreme Court of Victoria from an order of the County Court. 38Such departure can extend to reading words into legislation if the conditions identified by Lord Diplock in Jones v Wrotham Park Settled Estates [1980] AC 74 (at 105 - 106) are satisfied: Kingston v Keprose Pty Ltd (No 3) (at 422 - 423); Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 (at 22) per McHugh J (Toohey J agreeing); Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40; (2009) 238 CLR 642 (at [9]) per French CJ and Bell J (referring to Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 (at 592); [2000] 2 All ER 109 in which Lord Nicholls in turn adopted Lord Diplock's tests); R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 (at [8] - [9]) per Spigelman CJ (Abadee and Barr JJ agreeing) (describing Lord Diplock's tests as the "contemporary approach" to "[t]he process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the Court"); see also the detailed analysis in DPP v Leys & Leys [2012] VSCA 304 (at [45]) ff per Redlich and Tate JJA and T Forrest AJA - at footnote [117] their Honours list a number of Australian cases in which Lord Diplock's tests have been applied. The Court cannot, however, take "any course which might have the appearance of judicial legislation": Inco Europe Ltd v First Choice Distribution (at 115) per Lord Nicholls of Birkenhead; Minister for Immigration and Citizenship v SZJGV (at [9]) per French CJ and Bell J. 39The three conditions Lord Diplock identified for reading into a statute words not expressly included in it are: "First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law." 40There is a fourth requirement that must be satisfied if words are to be read into a statute. The modification "must be consistent with the wording otherwise adopted by the draftsman": Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 (at 235) per Dawson J; DPP v Leys & Leys (at [97]). 41In my view the four conditions I have identified are satisfied in this case. I have already dealt with the mischief the Liability Act, in particular Part 2, was intended to remedy. 42As to the second, it is abundantly apparent that s 12(2) was the product of inadvertence such that Lord Diplock's condition is satisfied. The original drafter of s 9 of the Health Care Liability Act failed to appreciate the irrelevance of the claimant's earnings to a damages award which fell within s 9(1)(c). That error was transposed to the Liability Act when the Health Care Liability Act was repealed, rather than the wording of either s 125 of the MAC Act or s 151I of the WCA. This is a plain case of a drafting mistake: Inco Europe Ltd v First Choice Distribution (at 115) per Lord Nicholls. The legislature has failed to provide in s 12(2) express words appropriate to give effect to its clear intention. In such circumstances the Court may, in the process of construction, remedy the omission: Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 (at 283) per Mahoney JA (McHugh and Clarke JJA agreeing). 43It is s 125 of the MAC Act or s 151I of the WCA which provide the answer to Lord Diplock's third condition. I have already set out the words the primary judge (at [75]) would have read into the Liability Act. In my view if the legislature's attention had been drawn to the deficiency in s 12(2), it would have adopted the model it had already employed in s 151I and s 125. On that basis, s 12(2) should be read as follows: "(2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant's or deceased person's gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award." (Emphasis added) 44Such a reading is, in my opinion, consistent with the wording otherwise adopted by the draftsman. It is "justified on the footing that it is a necessary implication to be deduced from the legislative scheme considered as a whole": Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (at 322) per Mason and Wilson JJ; see also R v Young (at [11] - [12], [14]) per Spigelman CJ. It does not expand the operation of s 12 but, rather, is a permissible approach to construing the words used: R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 (at [87] - [88]) per Spigelman CJ (Simpson J agreeing). On this construction the legislative purpose is achieved and the parenthetical expression "(but for the ... death)" in s 12(2) and other references to "death" in Part 2 of the Liability Act as well as the phrase in s 12(1)(c) have work to do. 45I propose the following orders:

1. Grant leave to appeal.
2. Direct the appellant to file a notice of appeal in the form of the draft in the White Book within seven days.
3. Appeal dismissed
4. Appellant to pay the first-fourth and sixth respondents' costs of the application for leave to appeal and of the appeal. 46BASTEN JA: On 7 December 2007 Mr Craig Taylor was killed when an awning outside a shop on Sydney Road, Balgowlah, collapsed on him. The present proceedings involve a fatal accident claim under the Compensation to Relatives Act 1897 (NSW) brought by his widow, Ms Susan Joy Taylor, on her own behalf and on behalf of dependants of the deceased. 47The claim included an amount by way of lost expectation of financial support. The quantum of that claim was likely to depend upon the earnings of the deceased immediately prior to his death. 48In a claim for personal injury damages governed by the Civil Liability Act 2002 (NSW) a court would be required to disregard any amount by way of gross weekly earnings exceeding three times the average weekly earnings at the date of the award: s 12(2). (Determination of this appeal will require attention to the precise language of the section and its statutory context.) It appears to have been accepted for the purpose of the present proceeding that the deceased had weekly income substantially in excess of that limit. Accordingly, a question arose as to whether the limit applies in a claim under the Compensation to Relatives Act. On 30 March 2012 a judge in the Common Law Division ordered that there be a separate determination of the following question: "Insofar as the plaintiffs claim damages pursuant to ss 3 and 4 of the Compensation to Relatives Act 1897, is any award of damages limited by the operation of s 12(2) of the Civil Liability Act 2002?" 49That question was determined by Garling J on 27 July 2012: Taylor v The Owners - Strata Plan No 11564 [2012] NSWSC 842. The answer given was as follows: "The claim by the first plaintiff in proceedings 2010/405732, for damages pursuant to the Compensation to Relatives Act ..., is, insofar as it includes damages for the loss of an expectation of the financial support provided by the late Mr Taylor, to be determined in accordance with s 12(2) of the Civil Liability Act 2002, by the Court disregarding the amount (if any) by which the late Mr Taylor's gross weekly earnings would (but for his death) have exceeded an amount that is three times the amount of average weekly earnings at the date of the award." 50In addition "the plaintiffs" were ordered to pay the defendants' costs. 51The order determining the separate question being interlocutory, the applicant required leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(e). The issue raised is a question of law of some general importance, the answer to which is not by any means beyond doubt. The question was an appropriate one for separate determination. Accordingly, there should be a grant of leave to appeal. 52For the reasons which follow, I would uphold the appeal and answer the question, "No". The costs order made against the appellant should be set aside.

Legislative scheme 53The submissions before the primary judge, and indeed the written submissions in this Court, raised a question as to whether the relevant provisions of the Civil Liability Act applied to fatal accident claims at all or in any circumstances. Without formally abandoning the point, counsel for the applicant on the hearing of the appeal effectively conceded the application of the Civil Liability Act, Pt 2, and focused on the operation of s 12(2). Because there was no unequivocal concession, it is appropriate to indicate, albeit briefly, why it should be accepted that the Civil Liability Act, Pt 2, may operate with respect to claims under the Compensation to Relatives Act. A discussion of the legislative regime will, however, focus on the second question, namely the operation of s 12(2). 54A cause of action subsisting at the time of a person's death, from whatever cause, now survives for the benefit of the estate of the deceased person although any damages recoverable will not include damages for the loss of earning capacity or for the loss of future probable earnings: Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2(1) and (2)(a). That legislative regime is indirectly relevant to the construction of s 12(2). The statutory scheme of primary importance dates back to the 19th century and the reforms introduced in England by the Fatal Accidents Act 1846, also referred to as Lord Campbell's Act, after its British proponent. 55Under the general law, prior to statutory modification, the dependants of a person killed in circumstances in which the deceased would have had a right of action in tort had he or she not died, were without a remedy. However, the Compensation to Relatives Act now provides that when a person dies by a wrongful act which would have entitled the deceased to maintain an action in damages if he or she had survived, the putative defendant will be liable in an action brought for the benefit of the spouse and other family members of the deceased, including any child: ss 3(1) and 4(1). The action shall be brought by the executor or administrator of the deceased (s 4(1)) or, where there is none or the executor or administrator does not act within six months of the death, then by a person for whose benefit the action might be brought by the executor or administrator: s 6B(1). 56The operative provisions of ss 3 and 4 read as follows: "3 An action to be maintainable against any person causing death through neglect despite the death of the person injured (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 .... 4 By whom and for whom action may be brought (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...." 57Thus, the condition precedent to the entitlement to bring the present claim was the putative right of action which the deceased would have had, if he had survived. However, the injury for which damages are payable is not an injury to him but to the claimant and the parties for whom she has brought proceedings. The claim is limited to "the loss of material benefits or of the reasonable prospect of material benefits which depended on the continuance of the life of the deceased": Public Trustee v Zoanetti [1945] HCA 26; 70 CLR 266 at 279 (Dixon J). Part of the calculation, before allowing for material benefits which may need to be set off against the loss, will depend upon a calculation of the likely future income of the deceased, which would probably have been available for the benefit of the claimants. That is not necessarily the sum for which the defendant would have been liable, if the deceased had survived, but been wholly incapacitated for work. 58In Nguyen v Nguyen [1990] HCA 9; 169 CLR 245, after summarising the relevant provisions of the Act, Deane J stated at 252: "In these circumstances, there is no warrant for confining the damages recoverable in a Lord Campbell's Act action within the limits of the measure of damages applicable in an action where the injured person has not died. The measure of the damages recoverable in a Lord Campbell's Act action is that specified by the statute. It is such damage as is 'proportioned' to that 'injury'. Not surprisingly, however, the breadth of the word 'injury' and the vagueness of the word 'proportioned' have combined to provide new fields for judicial exegesis." 59Assent was given to the Civil Liability Act on 18 June 2002. However, the Act was taken to have commenced on 20 March 2002. In its original form, the Act had two parts. Part 1, entitled "Preliminary", contained the usual introductory matters, including a number of definitions in s 3. Part 2, entitled "Personal injury damages", contained ss 9-22. Section 9(1) stated that the Part applied to and in respect of "an award of personal injury damages" with certain exceptions, none of which is presently relevant. Part 2, Div 2, was headed "Fixing damages for economic loss". Section 12 relevantly provided: "12 Damages for past or future economic loss-maximum for loss of earnings etc (1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or (c) for the loss of expectation of financial support. (2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant's gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award." 60Section 12 has remained unamended since the date of its enactment. Two aspects of s 12 are critical to this proceeding. First, the reference to "loss of expectation of financial support" adopts language which appears to be derived from cases under the Compensation to Relatives Act. 61Secondly, there is the reference in s 12(2) to "the claimant's gross weekly earnings". As originally enacted, the term "claimant" was defined to mean "a person who makes or is entitled to make a claim for personal injury damages": s 3. The phrase "personal injury damages" was in turn defined to mean "damages that relate to the death of or injury to a person caused by the fault of another person". 62There was a dispute before the primary judge as to whether damages available under the Compensation to Relatives Act to those identified in s 4 of that Act, were damages that "relate to" the death of the deceased. That dispute was resolved below in favour of the respondents and was not reopened on appeal. For present purposes it may be accepted that the relevant connection is established. Nevertheless, the entitlement to bring proceedings is vested in the executor or administrator of the deceased or, as in this case, the surviving spouse. 63In 2002 and 2003 the Civil Liability Act was amended by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW). A number of new Parts were inserted in the Act, although the substantive provisions in Part 2 were largely unchanged. Three amendments should, however, be noted. First, the definition of "claimant" was omitted from s 3, as were definitions of "fault", "injury" and "personal injury damages". Secondly, three sections were removed from Part 2, being ss 9, 10 and 11. Section 9(2) became, with presently irrelevant changes, the new s 3B. Definitions are now to be found in each Part of the Act, relevant to that specific Part. That approach may have been adopted because of the range of topics contained within the amended legislation, the purposes of which were varied and not readily amenable to general definitions applying throughout the Act. 64The definition of "personal injury damages", now found in Part 2 (s 11) was simplified by deleting the final words, "caused by the fault of another person". Apart from remaining in the long title to the Act, the word "fault" is only found in Part 10, dealing with apologies. Its removal appears to have been an act of simplification. The same inference can be drawn with respect to the definition of "claimant". When used in a part of the Act dealing entirely with "personal injury damages" its self-evident meaning was a person who made a claim (or was entitled to make a claim) for personal injury damages. The removal of the definition did not affect the meaning of the word, as deployed in ss 12, 13, 15, in the note to s 16, s 18 and s 19, all found within Part 2. The retention of that term will have consequences noted below.

Limits to the exercise of interpretation 65Accepting that Part 2 can operate with respect to claims under the Compensation to Relatives Act, a literal meaning of s 12(2) does not permit a limitation on an award under that Act based on the deceased's gross weekly earnings. The deceased is not the claimant and, even if the executor or administrator brings an action, the action is brought not on behalf of the estate but on behalf of the potential beneficiaries identified in the Compensation to Relatives Act, who may not be entitled to any share in the estate; they obtain any available benefit by reason of their relationship to the deceased and not by reason of their entitlement to any part of his or her estate. 66The respondents submitted, and the primary judge accepted, that the word "claimant" included a deceased person upon the basis of whose earnings a claim for loss of expectation of support is made in a Compensation to Relatives Act action: at [56]. The respondents' case thus required the substitution of other words for the statutory term "claimant". 67The reasons which supported this conclusion were identified by the primary judge as six in number, but they may be accommodated within three propositions. They were as follows: (1) subject to rare exceptions, the calculation of damages in a fatal accident claim will be made by reference to the earnings of the deceased and not to those of the claimant, whether the claimant be the executor, administrator, surviving spouse or other prospective beneficiary: at [57]-[59], [65]-[71] and [72]-[73]; (2) both s 12(1)(c) and the reference in sub-s (2) to earnings which would "but for the injury or death" have exceeded a certain amount, reveal an intention that the section apply to fatal accident claims and therefore demonstrate an intention to limit the gross weekly earnings by reference to which an award must be calculated: at [60] and [61]; (3) if the earnings of the deceased were not the reference point for the calculation, the family would be better off if a high income earner dies rather than survives, but with little or no residual earning capacity, because the claim of a surviving victim would be capped, but not that brought by the relatives of a deceased victim: at [62]-[64]. 68On analysis, these three points collapse into one, which is best identified as the second listed above. The force of the first point is that the limitation imposed by s 12(2) is largely misconceived if it only applies to a claimant's income in a fatal accident claim. The suggestion that its effect will be "capricious" because it will in some way make the claimant's earnings a relevant consideration is unpersuasive. The fact that those earnings are irrelevant under the Compensation to Relatives Act will not be affected by s 12(2). 69The third point also carries little independent weight. In colourful language, the primary judge declined to accept the proposition that the Parliament intended that the consequences of s 12(2) "would in any way lead a family of an individual to hope and pray the death of an individual rather than the individual's continued life, because of the more beneficial financial consequence": at [63]. The point could, however, be formulated somewhat differently. The Compensation to Relatives Act provides a limited benefit to the relatives of a deceased. They recover nothing by way of compensation for non-monetary loss and it is therefore compassionate to ensure that their rights of recovery for loss of financial support are not cut back. On the other side of the equation, the tortious defendant, who will pay nothing by way of damages for pain and suffering should not have its liability reduced further by capping the loss of expectation of financial support which it has caused. 70The second point has force in part; the reference in s 12(1)(c) to "loss of expectation of financial support", as something different from future economic loss, is best explained as encompassing a fatal accident claim. However, the reference to injury "or death" in s 12(2) could have work to do in relation to a cause of action which survives death and enures for the benefit of the deceased's estate. It does not necessarily refer to a fatal accident claim. 71There remains the proposition, which must be accepted, that if Parliament intended this provision to apply in respect of claims under the Compensation to Relatives Act, its adoption of the reference point "the claimant's gross weekly earnings" was misconceived. The results of a literal application of the statutory language, it was said, would be anomalous. 72It will be necessary to return below to the question of anomalies. First, it is convenient to consider whether, assuming that the statutory language was adopted inadvertently or by mistake, it is open to this Court to correct Parliament's error. 73The primary judge acknowledged that the principal factor standing against the approach he preferred was that it involved judicial redrafting of legislation by the insertion of words not used by the Parliament: at [75]. He referred to the passage in the judgment of Spigelman CJ in R v PLV [2001] NSWCCA 282; 51 NSWLR 736 where the Chief Justice stated (with the agreement of Simpson J and Smart AJA): "[80] There is a line of authority which suggests that the Court may sometimes 'read words into an Act'. On my reading of the authorities, and I acknowledge that this is not the only possible reading, this is not an accurate description of what is involved in the process of interpretation that is sometimes so described. (See my discussion of the authorities in R v Young (1999) 46 NSWLR 681 at [5]-[32]). [81] It is no part of the function of a judge to supply words believed to have been omitted by the legislature per se. What a court does is to construe the words actually used by the legislature, with an effect as if certain words appeared in the statute. The words so 'included' reflect in express, and therefore more readily observable, form, the true construction of the words actually used. [82] The task of the courts is to determine what Parliament meant by the words used, not to determine what Parliament intended to say .... The task is to interpret the words of the legislature, not to divine the intent of the legislature (see State v Zuma (1995) 4 BCLR 401 at 402 [2 S Afr LR 642 at 653]; Matadeen v Pointu [1999] 1 AC 98 at 108)." 74Spigelman CJ continued at [88]: "The authorities which have expressed the process of construction in terms of 'introducing' words to an Act or 'adding' words have all, so far as I have been able to determine, been concerned to confine the sphere of operation of a statute more narrowly than the full scope of the dictionary definition of the words would suggest. I am unaware of any authority in which a court has 'introduced' words to or 'deleted' words from an Act, with the effect of expanding the sphere of operation that could be given to the words actually used. This was the actual issue in R v Young. There are many cases in which words have been read down. I know of no case in which words have been read up." 75The point in issue in PLV arose out of a challenge to a conviction for a sexual offence; the appellant submitted that there was fresh evidence which tended to cast doubt upon the credibility of the complainant. The credibility rule, which rendered the evidence inadmissible, did not apply if the evidence tended to prove that the complainant "is, or was, unable to be aware of matters to which his or her evidence relates": Evidence Act 1995 (NSW), s 106(d) (since amended). In a related provision, s 104, a prosecutor is entitled to cross-examine a defendant about a matter relevant to the defendant's credibility, without leave, if it goes to whether the defendant "is, or was, unable to be aware of or recall matters to which his or her evidence relates": s 104(3)(b) (emphasis added). There was no suggestion that the complainant was unable to be aware of the events which had occurred to her, but only whether she could recall them. The question for the Court of Criminal Appeal was whether the words "or recall" could be imported into s 106(d). The Court declined to read into s 106 the additional words. 76In Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379 Beazley JA, after a thorough review of the relevant authorities, set out a statement from the reasons of Mahoney JA (with whom McHugh and Clarke JJA agreed) in Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283 to the following effect: "Legislative inadvertence may consist, inter alia, of either of two things. The draftsman may have failed to consider what should be provided in respect of a particular matter and so fail to provide for it. In such a case, though it may be possible to conjecture what, had he adverted to it, he would have provided, the court may not, in my opinion, supply the deficiency. In the other case, the legislative inadvertence consists, not in a failure to address the problem and determine what should be done, but in the failure to provide in the instrument express words appropriate to give effect to it. In the second case it may be possible for the court, in the process of construction, to remedy the omission." 77In Centennial Newstan, Beazley JA considered that an election to be taken under the Workers Compensation Act 1987 (NSW), s 151A, by commencing proceedings in the Compensation Court, could not be read as including proceedings brought in the District Court, being the forum available to coalminers. Beazley JA held that the error fell within the first category and could not be remedied by reading "Compensation Court" to mean "District Court". 78Giles JA, in referring to the judgment of Spigelman CJ in R v Young, noted at [79]: "The Chief Justice referred at (688 [17]) to Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 as '[t]he basic Australian authority on legislative inadvertence', and explained why it was not a case of reading words into a statute but of reading down words of general application. The literal meaning of words, previously appropriate, was made 'incongruous' (per Gibbs CJ at 305) or 'capricious and irrational' (per Mason and Wilson JJ at 321) in particular circumstances by later amendment of a definitional provision. The amended provision was read down in its application in the circumstances." 79Giles JA agreed there was doubt as to what would have been done if legislative attention had been given to the amendment when it was made but said "in any event, it is not for the courts to amend legislation under the guise of construction": at [83]. 80My reasoning in Centennial Newstan accepted that there might be a basis for inferring that if Parliament had turned its mind to the issue in question it would have substituted "District Court" for "Compensation Court" in relation to coalminers, but it was impossible to be sure: at [103]. I also raised a doubt as to whether, even if one could be sure as to what Parliament would have done if it had adverted to the problem, it was open to the Court to take that step: at [104]. 81The present case also raises doubts about the answer which the Parliament would have given had the matter been consciously addressed. It had available to it, long-standing precedents which suggested a different drafting exercise. Thus, the Workers Compensation Act, as in force since 6 December 2001, makes express reference to the operation of the Compensation to Relatives Act: see, eg, s 151A. Further, in limiting the calculation of past and future loss of earnings, that Act expressly refers to the obligation to disregard an amount "by which the injured or deceased worker's net weekly earnings" exceeded a prescribed limit: s 151I (emphasis added). 82The Motor Accidents Compensation Act 1999 (NSW), as in force in 2001, contained a provision to similar effect (emphasis added): "125 Damages for past or future economic loss-maximum for loss of earnings etc (1) This section applies to an award of damages: (a) for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for the loss of expectation of financial support. (2) In the case of any such award, the court is to disregard the amount (if any) by which the injured or deceased person's net weekly earnings would (but for the injury or death) have exceeded $2,500." 83Why the Legislature, if it intended that proposed s 12 of the Civil Liability Act was to have a similar effect, failed to follow these long-established precedents is a mystery. It casts doubt on the underlying assumption as to similarity of intent and thus casts doubt on the course which the Legislature would have taken if it had adverted to the issue. 84The mere fact that the legislation may not have operated in as comprehensive a way as could have been achieved by different language does not mean that the statutory purpose has been thwarted. Nor does it mean that the resultant construction has manifestly absurd, capricious or unreasonable consequences. Even if it did warrant that characterisation, the effect under the Interpretation Act 1987 (NSW) is to allow a court to look at extrinsic material, if that material is capable of assisting in the ascertainment of the meaning of the provision: s 34(1)(b). That in itself does not confer on a court a mandate to rewrite the statute. In Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 McHugh JA stated at 302: "In Tokyo Mart ... this Court applied the principles formulated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106 concerning the circumstances in which a court may read words into a legislative provision to give effect to its purpose. Lord Diplock said that a court may read words into a statutory provision when three conditions are fulfilled. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect." 85In Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 184 LGERA 104 at [54] I noted, with the agreement of Giles and Macfarlan JJA: "The case-law suggests three possible preconditions to the implication of a limitation on the express words adopted by the legislature: (1) first, the apparent omission must be one which requires a remedy in order for the apparent statutory purpose to be achieved: Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292 at 299 (Hope JA) and 302 (McHugh JA, referring to the principles stated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106); (2) the words actually used in the statute must be reasonably open to the proposed construction: R v Young [1999] NSWCCA 166; 46 NSWLR 681 at [11] (Spigelman CJ), and (3) the Court must be able to state with certainty the solution which the legislature would have adopted, absent inadvertence to the particular problem: Bermingham at 302E-F; Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379 at [55] (Beazley JA) and [103]." Those principles have equal if not greater force when the proposed course is to give words a meaning quite different from their ordinary meaning. 86The High Court has warned on more than one occasion of the danger of concentrating on a general legislative intention to override the ordinary meaning of a statutory text: see, eg, in a tax context, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [11] (French CJ) and [51] (Hayne, Heydon, Crennan and Kiefel JJ) quoting Gleeson CJ in Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [6]. A similar level of caution has been adopted by this Court: Rail Corporation New South Wales v Brown [2012] NSWCA 296 at [39]-[40] (Bathurst CJ, Beazley JA and I agreeing). Such caution is required in the present case.

Reliance on extrinsic material 87The respondents were entitled to seek assistance in extrinsic material. They relied upon broad statements of principle in the second reading speech for the Civil Liability Bill: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 May 2002, 3rd Series, vol 292, p 2087. However, as explained above, broad statements that the Bill was intended to limit awards of damages because of rising premiums for insurance, do not mean that the Court is either required or entitled to stretch the language used by Parliament to cover particular cases which, on a literal reading, do not fall within its terms. It is significant that the Premier (Mr Carr) in describing what became s 12 stated: "Clause 12 limits damages for lost earnings, loss of earning capacity or expectation of financial support. It requires the courts to disregard any amount claimed by the plaintiff that is greater than three times average weekly earnings. This will affect very high income earners only." 88That statement contained no basis for resolving the present issue, rather, it suggested that those responsible for the drafting the Second Reading Speech did not advert to the issue. 89The respondents also referred to the Report on the Law of Negligence (2002) commonly referred to as the Ipp Report. It referred to the fact that assessment of damages for fatal accident claims was complex and varied between jurisdictions: Report, 13.115. The Report continued at par 13.116: "Nevertheless, no submissions have been made to the Panel to the effect that this is an area in which there are particular problems that need to be resolved by limiting the damages recoverable in such cases. The Panel, itself, has not identified any such problems." 90Despite that comment, and perhaps inconsistently with it, the Report recommended that in calculating damages for "loss of financial support any amount by which the deceased's earning exceeded twice average [full-time adult ordinary time earnings] shall be ignored": Recommendation 55(a). However, that recommendation post-dated the enactment of s 12 and cannot assist in its interpretation. No other extrinsic material gave assistance.

Avoidance of anomalous consequences 91It is necessary to return to the proposition that the substitution of other words is necessary to avoid anomalies. Attempts to remove anomalies from statutes is a course frequently fraught with difficulties. This legislation is no exception. For example, in Roads and Traffic Authority v Jelfs [1999] NSWCA 179, decided less than three years before the drafting of the Civil Liability Act, this Court upheld an award in a fatal accident claim for the loss of services provided by the deceased wife to her husband. That claim had been described by the trial judge as based on principles established in Nguyen v Nguyen and as being "akin" to the principle in Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161: see Jelfs at [21] and [24] (Mason P). A closer analogy may have been Sullivan v Gordon [1999] NSWCA 338; 47 NSWLR 319, in which the claim of a injured plaintiff was held not to be confined to self-care, but included an amount for the lost capacity to care for children. The fact that such a claim was rejected as a head of damages in a claim in negligence and Sullivan v Gordon overruled, in CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1, did not affect its availability in a fatal accident claim. (The fact that such a claim was available under Lord Campbell's Act, by reference to Nguyen v Nguyen, was relied on in argument in CSR Ltd: - 226 CLR at 5, fn 53 - and referred to at [44], fn 170.) The Civil Liability Act imposes limitations on the circumstances in which and the amount which may be awarded for gratuitous attendant care services: s 15. That section also applies with respect to services provided "to a claimant": s 15(1). However, they appear to relate to services provided to an injured person, because the need for the services must arise "solely because of the injury to which the damages relate" and must be services which would not have been provided "to the claimant but for the injury": s 15(2). This section would therefore appear not to affect the quantum of such an award made in a fatal accident claim, which, as Jelfs indicated, may be significant. 92A further anomaly may arise from the apparent distinction in s 12(1) between awards of damage for future economic loss due to impairment of earning capacity and "the loss of expectation of financial support": see paragraphs (b) and (c) respectively. The Civil Liability Act imposes constraints on the manner in which the Court may assess "damages for future economic loss": s 13. That includes the necessary statement of assumptions about the future and a discount for the possibility that such events may have occurred "but for the injury": s 13(2). There being no reference to "loss of expectation of financial support", this provision appears not to apply in the case of a fatal accident claim. 93There is also a requirement that the present value of "future economic loss" is to be determined by reference to a "prescribed discount rate": s 14. That too appears not to apply in respect of "loss of expectation of financial support" and thus not in fatal accident claims. 94These matters are not directly raised by the circumstances of the present case, but are relevant for two reasons. The first is that the distinction drawn between "future economic loss" and "loss of expectation of financial support" in s 12(1) is critical to the assumption that the section applies to fatal accident claims. If that be so, it should be accepted that similar language in other sections in Part 2 should be similarly understood. No other section contains reference to "loss of expectation of financial support". Secondly, the operation of ss 13 and 14 and, in particular, s 15 will give rise to anomalies: that is, they will not apply to fatal accident claims (see also s 15(4)). To the extent that the characterisation of a literal reading of s 12 as leading to 'an anomaly' is put in doubt, the basis for the proposed judicial amendment is diminished.

Conclusion 95The simplest means of removing potential anomalies noted above would be to delete s 12(1)(c). The effect would be to remove the basis for the inference that s 12 was intended to apply in fatal accident claims. On one view, that course might appear unlikely. However, given that no other provision in Part 2 appears to apply to fatal accident claims, and given the finding in the Ipp Report that no need for reform had been identified in respect of fatal accident claims, coupled with the fact that they are, in relative terms, rare and therefore have little economic impact on insurance premiums, such a course may not be implausible. If that be so, the Court could not be confident as to the course the legislature would take if the consequences of a literal interpretation of s 12(2) were drawn to its attention. It follows that the third of Lord Diplock's conditions for reading words into a statute is not satisfied. 96Both principle and authority preclude this Court rewriting the legislation in the manner accepted below. The respondents who actively pursued a contrary view must pay the appellants' costs. 97In my view the appropriate orders are: (1) Grant leave to appeal. (2) Direct that the applicant file within 7 days the draft notice of appeal in the white folder. (3) Allow the appeal and set aside the orders made in the Common Law Division. (4) Answer the separate question, "Insofar as the plaintiffs claim damages pursuant to ss 3 and 4 of the Compensation to Relatives Act 1897, is any award of damages limited by the operation of s 12(2) of the Civil Liability Act 2002?" "No". (5) Order the first-fourth and sixth respondents to pay the appellants' costs in this Court and the costs of the separate question in the Court below. 98HOEBEN JA: I agree with McColl JA.

Amendments 12 July 2013 - Typographical error Amended paragraphs: 46 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2013