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.