Taylor v The Owners - Strata Plan No 11564 - [2012] NSWSC 842 - NSWSC 2012 case summary

Supreme Court of NSW|2012-07-27|Before: Garling J

Milne Berry & Berger (P1, P2) (proceedings 12/57679) Meridian Lawyers (D1, D2, D3, D4) (proceedings 12/57679) Addisons (D5) (proceedings 12/57679) DLA Piper Australia (D6) (proceedings 12/57679) File Number(s): 2010/405732; 2012/57679

Judgment 1On 30 March 2012, the Court ordered that there be a hearing and determination, pursuant to r 28.2 of the Uniform Civil Procedure Rules 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?" 2Although a court is ordinarily reluctant to order the hearing and determination of separate questions, the determination of this separate question will be likely to facilitate the just, quick and cheap resolution of the proceedings generally and also a central issue in the proceedings: Idoport Pty Ltd v National Australia Bank [2000] NSWSC 1215 at [7(6)] per Einstine J; Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 per Bryson J at 141.

The proceedings 3On 7 December 2007, Mr Craig Taylor was killed when an awning outside some shops in Sydney Road Balgowlah collapsed onto him. He died at the scene. 4Prior to his death, Mr Taylor was a land surveyor who owned his own practice. As well, he was apparently engaged in property development. 5At the time of his death, Mr Taylor was married to Susan Joy Taylor. This was a second marriage. There were three stepchildren of that second marriage - Zoe, Luke and Nicholas ("the stepchildren"). 6From his first marriage, Mr Taylor had three children - Ryan Winton Taylor, Lisa Jane Taylor and Mitchell Alan Taylor ("the children"). 7In a statement of claim dated 6 December 2010, Mr Taylor's widow, Susan, commenced proceedings making a claim pursuant to s 3(1) and s 6B(1) of the Compensation to Relatives Act 1987 for the benefit of herself and the dependants of the late Craig Taylor. In providing particulars of that claim, Mrs Taylor nominated herself and the stepchildren as being dependent upon the late Mr Taylor. 8She pleaded that the children were not dependant, or else any dependency which they did have, had been satisfied by the bringing forward of the benefit they each received from the estate of the late Mr Taylor. 9In that statement of claim, Mrs Taylor also claimed damages because she "... suffered injury, harm, loss and damage in the nature of a recognised psychiatric condition". 10One of the stepchildren, Zoe Cartwright, joined as a plaintiff in the statement of claim, claiming damages for "... injury, harm, loss and damage in the nature of a recognised psychiatric condition". 11Two of Mr Taylor's children, Lisa Jane and Mitchell Alan, commenced proceedings by a statement of claim filed on 21 February 2012 in which they claimed to have suffered "... injury, loss and damage and have formed recognised psychiatric and psychological injuries" arising out of the death of their father. 12The two sets of proceedings have been ordered to be heard and determined together. 13This judgment, which involves the determination of a separate question, does not concern any of the claims for damages for personal injury, by way of psychiatric or psychological conditions. It concerns only the claim made by Mrs Taylor pursuant to the Compensation to Relatives Act.

The Question for Determination 14Put shortly, the separate question is intended to determine whether the claim which is made pursuant to the Compensation to Relatives Act is one which is calculated by reference to the entirety of the financial support which Mrs Taylor and those for whom she brings the proceedings, were entitled to expect from the late Mr Taylor, or whether the provisions of s 12(2) of the Civil Liability Act 2002 limit recovery for the loss of that expected financial support, to a maximum sum calculated by reference to three times the average weekly earnings. 15The resolution of this question turns upon the interpretation of s 12(2) of the Civil Liability Act. It involves a question of statutory interpretation, a process by which the judiciary interprets the Parliament's legislation. It is not for the judiciary to make law. 16It is also requires an understanding of the provisions of the Compensation to Relatives Act, and the nature of actions brought pursuant to it. 17In engaging in the determination of the separate question, it is necessary to make the assumption that Mrs Taylor will succeed in establishing that the death of her husband was due to the negligence of one or more of the defendants, and that she, and the stepchildren, suffered a loss of financial support because of Mr Taylor's death. This judgment does not make any determination of these factual issues, which will need to be properly established in due course. I note that none of the defendants allege that the late Mr Taylor was in any way at fault for his own death.

The Legislation 18It is necessary to identify and set out the relevant parts of both pieces of the relevant legislation, namely the Compensation to Relatives Act which provides for the right for Mrs Taylor to make her claim and the Civil Liability Act, which governs which claims, or parts of claims, this Court can allow, and the amount of damages which may be assessed.

Compensation to Relatives Act 19Section 3(1) of the Act provides for the right to recover damages and is in the following terms: "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, notwithstanding the death of the person injured, ..." 20Section 5 of the Act provides that only one action can be brought in respect of a person's death. 21Section 4 of the Act provides for the mechanism of an action, in terms of who brings it and who benefits from it, in these terms: "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 for whom and for whose benefit such action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict find and direct." 22Although s 4 refers to an award of damages by a jury, s 6D makes the section applicable, in like terms, to a judge hearing a claim without a jury. 23As well as the provisions of s 4 about who must bring a claim, s 6B provides for an alternative action by a beneficiary where an executor or administrator is not appointed or else if the executor or administrator does not commence an action within six months after the individual's death. Here Mrs Taylor relies upon the provisions of s 6B to enable her to commence the proceedings. There is no suggestion that reliance upon this section is misplaced.

Civil Liability Act 24Section 3 of the Act contains definitions of terms which are applicable to the whole Act. It provides a definition of "damages" as including "any form of monetary compensation". 25The principal provisions which are here relevant are to be found in Part 2 of the Act which is entitled "Personal Injury Damages". 26Part 2 of the Act commences with Section 11 which provides definitions in the following terms: "11Definitions In this Part: 'injury' means personal injury and includes the following: (a)pre-natal injury, (b)impairment of a person's physical or mental condition, (c)disease. 'personal injury damages' means damages that relate to the death of or injury to a person." 27Section 11A deals with the application of Part 2 of the Act. Relevantly, it is in the following form: "11AApplication of Part (1)This Part applies 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. (2)This Part applies regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise. (3)A court cannot award damages, or interest on damages, contrary to this Part." 28An action under the Compensation to Relatives Act is not excluded by the operation of s 3B of the Civil Liability Act. However, the plaintiff submitted that an award of damages under the Compensation to Relatives Act was not an award of personal injury damages and hence Part 2 did not apply. It will be necessary to consider this in due course. 29On the assumption that Part 2 applies, the central provision for the purpose of the determination of this separate question is s 12, which limits the maximum sum for the recovery of economic loss. It is in these terms: "12Damages 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." Section 12 falls within Division 2 of Part 2 of the Act, which is entitled "Fixing damages for economic loss". It is unnecessary to set out the remaining sections in Division 2, but their terms are available to provide the context in which the exercise of statutory interpretation is carried out.

Principles of Statutory Interpretation 30The separate question requires the interpretation of the Civil Liability Act. It is appropriate to identify the applicable principles. I have set those principles out more fully in Thiering v Daly [2011] NSWSC 1348 at [50]. The parties agreed that these were the applicable principles. 31Using the same terms as I did in Thiering at [50], I identify the principles here relevant, in this way: (a)The commencing point is to engage in a purposive construction. That is, in the interpretation of a provision of an Act, a construction which promotes the purpose and/or object underlying an act, is to be preferred to a construction that would not promote that purpose or object: Carr v Western Australia (2007) 232 CLR 138 at [5]-[6] per Gleeson CJ; (b)What is involved in an exercise of statutory construction is a search for the objective intention of Parliament and not the subjective intention of the Parliament, if one exists, or of Ministers: Eastman v The Queen (2000) 203 CLR 1 at [146]-[147] per McHugh J; Harrison v Melhem (2008) 72 NSWLR 380 at [14] per Spigelman CJ, [159] per Mason P, Beazley and Giles JJA agreeing; Wilson v State Rail Authority of NSW [2010] NSWCA 198 at [12] per Allsop P; (c)A statement of intention by a Minister in a Second Reading Speech will not prevail over the words of a statute: Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 518; Harrison at [14] per Spigelman CJ, [162] per Mason P. Identification of the mischief to be addressed by the legislation, and the purpose to be served by the legislation, when contained in a Second Reading Speech are in a different context and realm to statements of the meaning of words, phrases or provisions in statutes: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424; Harrison at [162] per Mason P; (d)Legislation must be construed by reference to the language which Parliament has used in the enactment as distinct from what others, including Ministers, may wish or think that the Parliament intended: Nolan v Clifford (1904) 1 CLR 429 at 449; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 499 [55]; Harrison at [159] per Mason P; Wilson at [12] per Allsop P; (e)The courts in exercising judicial power, interpret legislation by determining what Parliament intended to mean by the words it used. The Court does not determine what Parliament intended to say: Wik Peoples v Queensland (1996) 187 CLR 1 at 169; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at [10]; R v PLV (2001) 51 NSWLR 736 at [82]; Harrison at [16] per Spigelman CJ; (f)In interpreting legislation, the primary object is to construe the relevant provisions so that it is consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [71] per McHugh, Gummow, Kirby and Hayne JJ; (g)Legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears between provisions, it must be alleviated, as far as possible, by adjusting the meaning of the competing provisions to achieve a result. This adjustment may require a Court to determine a hierarchy of provisions: Project Blue Sky at [70] per McHugh, Gummow, Kirby and Hayne JJ; Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J; Wilson at [13] per Allsop P 32As Chief Justice Dixon said in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397: "... but the context, the general purpose and policy of a provision, and its consistency and fairness are surer guides to its meaning that the logic with which it is constructed." 33I will apply these principles in determining the separate questions.

Nature of a Compensation to Relatives action 34An action under the Compensation to Relatives Act is a derivative action which is dependent on, or secondary to, rights of action which were vested in a deceased person immediately before their death: Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 at 104 per Samuels AP, Clarke JA agreeing. 35The action did not exist at common law, but relies entirely upon the statute that creates it. Here, the statute is in similar terms to other statutes around Australia, and originates from the United Kingdom in 1846 with Lord Campbell's Act (9 and 10 Vict c 93): De Sales v IngrilIi [2002] HCA 52; (2002) 212 CLR 338 at [7] per Gleeson CJ. 36An action under the Compensation to Relatives Act is one for "damages ... proportioned to the injury": s 4 Compensation to Relatives Act. The Act does not contain any definition of injury. The nature of the compensable damages are to be found in the common law. 37Windeyer J explained in Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295 at 308, that the governing principles for the awarding of damages were twofold, namely that: (a)damages should be calculated by reference to a "reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of life": Franklin v The South Eastern Railway Company [1858] Eng R 669; (1858) 3H & N 211 at 214 per Pollock CB; and (b)damages are calculated having regard to "... a balance of gains and losses for the injury sustained by the death: Davies v Powell Duffryn Associated Collieries Ltd (1942) AC 601 at 623 per Lord Porter. 38This explanation of the governing principles was adopted with approval by the High Court of Australia in De Sales: Gleeson CJ at [11], Gaudron, Gummow and Hayne JJ at [57]. 39McHugh J noted with succinctness and clarity the fundamental nature of an action under the Compensation to Relatives Act when he said in De Sales at [91] ff (omitting footnotes): "91.The Fatal Accidents Act is based on Lord Campbell's Act 1846 (UK). Before Lord Campbell's Act, no action for damages for or arising out of the killing of a person could be maintained in a civil court. That Act gave a right to the relatives to recover damages "proportioned to the injury resulting from the death". But from the beginning the term "injury" was read as confined to pecuniary loss. And Justices of this Court have accepted that that is so. In Davies v Taylor, Lord Reid said that the "injury" "must be of a financial character" and that it meant the "loss of a chance". That is to say, damages are awarded under Lord Campbell's Act for the chance that the deceased would have provided the relative with financial support or its equivalent in the future. The damages are "for the loss of the expectation of financial support by the deceased". Thus, the tribunal of fact in assessing damages must value the chance that each relative had of obtaining a financial benefit from the deceased if that person had not been killed by the defendant. 92.In determining the extent of the "injury", financial gains as well as losses resulting from the death must be taken into account. 93.Sentiment has no place in the action. The relatives are not compensated for grief, sorrow or bereavement. "It is," said Lord Wright, "a hard matter of pounds, shillings and pence". So pervading is the notion that "injury" is concerned with the loss of the chance of financial support that the funeral expenses of the deceased were not recoverable by the relatives in an action under the Act until the legislature intervened in England and some Australian States." 40Gleeson CJ noted in De Sales at [12]-[13], that in modern claims, the existence of financial dependency was not an essential element of an action under the Compensation to Relatives Act, and further that the loss of an expected benefit was not restricted to a loss of direct financial support. Such a loss may include the value of services which a deceased may provide around the home. 41In the circumstances of the present action, what is being claimed is the loss of expected financial support from the income of the deceased. The plaintiff, Mrs Taylor, does not claim damages by reference to her own earnings, simply the loss of her expected benefit.

History and context of the Civil Liability Act 2002 42Part 2 of the Civil Liability Act was introduced as the Civil Liability Bill into the Parliament on 28 May 2002. 43The context of 2002 in which this Bill was introduced should be recalled. That context included a widely held view in the community that there was an "insurance crisis" where public liability insurance, at least, had become difficult to obtain and then only with large premiums, so that community facilities and activities were being undesirably curtailed. The perceptions were that this stemmed from a lack of clarity and a lack of predictability in the application by courts of the law of negligence, and that damages awards were frequently too high. 44Although written a month or so later than the introduction of the Bill, the Terms of Reference for the Ipp Review captured the sense of the time. They commenced: "The award of damages for personal injury has become unaffordable and unsustainable as the principal source of compensation for those injured through the fault of another." 45A background to the introduction of this Bill was described by the Premier on 7 May 2002 when he released a draft of the Bill for the purpose of public consultation. In Parliament, he said: "This Bill will implement stage one of the tort law reforms I announced on 20 March. The Bill tightens control on the calculation of damages. It fixes the maximum amount of damages for pain and suffering and for loss of earnings. ... it prescribes a more realistic rate for damages ... ". 46In the Second Reading Speech, the Premier of New South Wales, the Hon R J Carr MP, said that the Bill which introduced limitations on sums of damages which could be awarded, was a reform which was "... vital to the survival of our community". 47When considering Part 2 in particular, he said: "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". 48It cannot be doubted that the Act was intended to restrict the range of monetary judgments being delivered by courts calculated by reference to the common law.

Does Part 2 of the Civil Liability Act apply to these proceedings? 49The plaintiff argued that Part 2 of the Civil Liability Act does not apply to actions brought under the Compensation to Relatives Act. 50She submitted that such a claim, being one for pure economic loss, was not one "... in respect of damages that relate to the death or injury to a person". 51I reject that submission. In my view, a claim for damages under the Compensation to Relatives Act is one which is for damages that relate to the death of a person. I am of that view for these reasons: (a)the word "damages" is defined in s 3 of the Civil Liability Act to include any form of monetary compensation. This would include a claim for pure economic loss such as a loss of expected financial support; (b)a claim under the Compensation to Relatives Act is not specifically excluded by the terms of s 3B of the Civil Liability Act, which is the only provision of the Act by which the application of the Act to all civil claims is specifically limited; (c)the definition of "harm" in s 5 of the Act makes it plain that Part 1A applies to claims for pure economic loss. It would be surprising if Part 1A applied to affect the determination of liability in accordance with the Act, but restrictions placed on the quantification of damages by the Act were inapplicable; (d)s 5T of the Act specifically includes a reference to Compensation to Relatives Act claims. This clearly suggests that it was intended that the Civil Liability Act apply to such claims. Similar comments made with respect to the previous subparagraph would also apply here with respect to the inconsistency between applying the liability provisions to Compensation to Relatives Act claims but not the damages provisions; (e)as Professor Fleming said in The Law of Torts 7th Ed (1987) at 630, a condition precedent to the bringing of an action under the Compensation to Relatives Act is that a person has died and the deceased would have been entitled to bring a claim but for the death. Since a condition precedent is closely connected with the death of a person who would otherwise have been a claimant, it seems improbable that the Act was not intended to apply to actions under the Compensation to Relatives Act; (f)the phrase "... that relates to ..." is one of broad meaning and effect. It ought not be given an unduly narrow meaning. A Compensation to Relatives Act action relates to the death of a person because it does not arise, and cannot be brought unless a person has died. As well, the liability aspects of such a claim depend on the tortious conduct (an act or omission) causing the death of an individual, which then deprives the claimant of expected financial support; (g)the inclusion of the phrase "... the loss of expectation of financial support ..." in s 12(1)(c) of the Act, refers directly to a Compensation to Relatives Act action, and the nature of recovery of damages in such an action. It explicitly suggests that Part 2 has application to such a cause of action. It is a phrase which is inapplicable to a traditional personal injury action. 52As well, the nature of a claim for damages under the Compensation to Relatives Act tells strongly against the plaintiff's submission. As discussed earlier, it is an action for damages for the loss of the expectation of financial support from a deceased person, for whose death a tortfeasor can be identified. The damages relate to the death of an individual and only arise because of that death. The right to, and articulation of, damages depends upon the death of an individual. Clearly, the action is one which relates to the death of a person and falls within Part 2. 53My conclusion, just expressed, is consistent with the reasoning of Howie J in Chaina v The Presbyterian Church (NSW) Property Trust [2007] NSWSC 353, (2007) 69 NSWLR 533 at [35]-[36], [39]-[42]. 54Accordingly, I am satisfied that a claim pursuant to the Compensation to Relatives Act is subject to the Civil Liability Act. Whether particular provisions are apt to apply to such a claim is a matter which needs to be determined by reference to the particular provisions, and the context of the particular claim.

Does s 12 of the Civil Liability Act 2002 apply to this claim? 55The plaintiff submits that s 12 does not apply to an action under the Compensation to Relatives Act insofar as the earnings of the deceased are concerned. She accepted that if Part 2 was applicable, the terms of s 12 could be applied to a claimant who found themselves in the position of the hypothetical plaintiff described by Stein JA in Dwight v Bouchier [2003] NSWCA 3 at [78], but only to such a plaintiff. 56I reject this submission. In my view, the word "claimant" in s 12(2) includes a deceased upon the basis of whose earnings a claim for loss of expectation of support is made in a Compensation to Relatives Act action. I have reached that view for the reasons which follow. 57Firstly, the typical or paradigm case by claim for damages under the Compensation to Relatives Act, involves a claim arising out of the death of the principal income earner, or a person whose financial contribution to the beneficiaries is of monetary significance to them. Accordingly, the claim for lost expectation of financial support will only relate to the deceased's income, and perhaps other financial resources of a capital kind. 58Whilst a claimant of the kind identified in Dwight may exist, such a circumstance is very rare indeed. The typical or paradigm case described above, is overwhelmingly, if not universally, the basis of a Compensation to Relatives Act action. 59Accordingly, given that the intention of the legislation is to limit claims for tortiously caused damage, and to restrict financial loss claims for high earning individuals, it is consonant with that intention to read s 12(2) of the Civil Liability Act as applying to the deceased's income, in a Compensation to Relatives Act claim. 60Secondly, the reference in s 12(1)(c) of the Civil Liability Act to the nature of damages recovered in a Compensation to Relatives Act action, suggests explicitly that it was intended by Parliament that the s 12(2) restriction would apply to actions under the Compensation to Relatives Act. The phrase "damages ... for the loss of expectation of financial support" is not applicable to actions for damages arising out of personal injury, it is only capable of applying to an action for damages within the Compensation to Relatives Act. This strongly suggests that, for s 12(2), which is the only operative part of the section, to be given any work to do which reflects s 12(1)(c), the word "claimant" has to be interpreted as meaning, the deceased upon whose earnings the claim depends when a claim for loss of expectation of support is made. 61Thirdly, 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. 62Fourthly, it would be an anomalous and an unintended result of the Civil Liability Act if an award of damages for a seriously injured individual, from a part of whose award namely, lost earning capacity, the family of the injured person may expect to be supported, would be a limited one for high income earners, but yet, if the person was to die from the tortious conduct, the economic return to the family would be unlimited. It could not have been intended that death from a tortious cause would provide such a financial bonus, or windfall. 63I cannot accept that the Parliament intended that the monetary consequence of the limitation of a damages award, if the plaintiff's submissions be correct, 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. 64This is an unappealing consequence of the plaintiff's submissions. 65Fifthly, the claimant in an action under the Compensation to Relatives Act may, and usually does, represent other potential beneficiaries. 66Section 4(1) of the Compensation to Relatives Act provides that the action should be brought by "the executor or administrator of the deceased". Section 6B permits any person for whose benefit the action subsists, to bring an action if no executor or administrator exists, or if an action has not been commenced within six months of the death of the deceased. Section 5 provides that only one action can be brought. Section 4(1) lists the category of persons for whose benefit an action may be brought. This category includes a spouse (or spouses if more than one) of the deceased, the siblings of the deceased, the parents of the deceased and the children (or stepchildren) of the deceased. 67In order to obtain an award, it is not essential to show that any of these beneficiaries is financially dependent upon the deceased, simply that they had an expectation of financial support: De Sales at [12] per Gleeson CJ. 68In this context, interpreting s 12(2) of the Civil Liability Act so as to apply to the named person bringing the claim, that is, the "claimant" as opposed to the deceased would lead to capricious results. An executor who brings an action may have nothing whatsoever to do with the individual beneficiaries for whom the action is brought, in the sense that the only connection is the appointment as executor. Whether the executor earned more than three times gross weekly earnings is entirely irrelevant to the calculation of proper damages. 69Rhetorically, one could ask, why should the award of damages for the beneficiaries of a Compensation to Relatives Act action depend upon the high (or alternatively, the low) earnings of the executor with whom they have no connection. This is entirely irrelevant to a proper calculation of the damages arising from the loss of financial support. 70Equally capricious would be the circumstance existing where an executor does not bring a claim. If the surviving spouse earned more than requisite amount, then the terms of s 12(2) could be avoided by having an infant child bring the claim with the surviving spouse acting as the tutor or else simply remaining as an identified beneficiary. This fiction would mean that the surviving spouse's earnings were entirely irrelevant because they were not the plaintiff or "claimant", but on the plaintiff's submissions this is the person whose earnings should be taken into account. 71The interpretation urged by the plaintiff would mean that the choice of who was to be the plaintiff, that is, the "claimant", may affect the outcome in terms of the amount of damages awarded. Again, it would be an unappealing consequence as it would represent a triumph of form over substance. 72Sixthly, the interpretation contended for would ignore the compelling logic to be seen in the judgment of the High Court of Australia in Carroll v Purcell [1961] HCA 81; (1961) 107 CLR 73 at 79 per Dixon CJ, Kitto, Taylor and Windeyer JJ. There, their Honours stated that the ability of a widow to go out to work was not the result of a revived capacity to undertake gainful employment, or a gain resulting from the death of her spouse; her ability to work "was always there". The exercise of this ability was irrelevant to an action under the Compensation to Relatives Act. 73If the widow is the claimant in a Compensation to Relatives Act action, as is often the case, if there is a recovery limit calculated by reference to her actual weekly earnings, which represents nothing more than the exercise of her existing capacity to undertake gainful employment, it would ignore her loss of expectation of support and potentially, penalise her for returning to work, either at all, or else in a greater capacity. 74All of these reasons provide ample support for interpreting the word "claimant" in s 12(2) of the Civil Liability Act so as to mean the earnings of the deceased person, whose tortiously caused death gives rise to the claim under the Compensation to Relatives Act. Such an interpretation would not be illogical when one considers the representative nature of a Compensation to Relatives Act claim, to which I have earlier made reference. It is the interpretation which best fulfils the intention of the Parliament. 75However, principally standing against this proposed interpretation is the submission of the plaintiff that what is involved in such an interpretation is in effect a judicial redrafting of the legislation with the insertion of words never used by Parliament. It is argued that, interpreting the legislation in the way just discussed, would result in a redrafting of s 12(2) so that it would read 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." 76This is certainly a more felicitous way of capturing the intention of the Parliament as I understand it to be. Such a redrafting may commend itself to the Parliament. 77Interpreting the legislation, so as to involve a redrafting of this kind, it is submitted by the plaintiff, is contrary to principle because it is not for the Courts to redraft legislation or to interpret legislation in a way which is not reflected in the words of the legislation which as been passed. 78The submission derives its support from the statement of Spigelman CJ in R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [81], where he said: "It is no part of the function of a judge to supply words believed to have been omitted by the legislature per se." 79However, the Chief Justice, in the same paragraph went on to say: "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 readily observable, form, the true construction of the words actually used." 80There is no reason to think that, whilst the statute could be better drafted, according to the principles of statutory interpretation, a construction which has the effect of the redraft to which I have just referred, is not permissible in accordance with the authorities. It is no more than a reformulation which should be understood as a means of expressing my conclusion with clarity: R v PLV at [87] per Spigelman CJ. 81For these reasons I am persuaded that properly interpreted so as to reflect the purpose of the Civil Liability Act, and the intention of the legislature, s 12(2) of the Civil Liability Act applies to the earnings of a deceased person upon whose tortiously caused death, an action under the Compensation to Relatives Act is based. 82In this case, the relevant earnings for the purpose of s 12(2) of the Civil Liability Act are those of the deceased, Mr Taylor, and not anyone else.

Orders 83I order that the separate question be answered: "The claim by the first plaintiff in proceedings 2010/405732, for damages pursuant to the Compensation to Relatives Act 1987, 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." 84I order the plaintiffs to pay the defendants' costs.

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: 27 July 2012

Taylor v The Owners - Strata Plan No 11564

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