Victorian Workcover Authority v Anderson [2000] VSC 461

11. The dependants made a claim against Anderson independently of the Act. In connection with that claim, a proceeding was commenced in the County Court on 18 September 1995. Its purpose was clear: to facilitate approval of a settlement of $180,000 - necessary because there were minors involved.

14. The compromise was approved on 24 January 1996.

17. It is not in dispute that the amount of the settlement was paid.

20. Having regard to the amount of the settlement, to correspondence which pre-dated and post-dated commencement of the proceeding, and to forms of release signed by the widow of 21 April 1995 and 22 November 1995, there is no doubt that the claim which the parties considered was being compromised was a claim under the Civil Aviation (Carriers' Liability) Act 1961, (the State Act). The effect of ss.4 and 5 of that Act was to make applicable to air carriage within Victoria, save as excluded or modified, the provisions of Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Commonwealth) (the Commonwealth Act). It is convenient to describe those Acts generally as the Carriers legislation.

23. By s.35(2) of the Commonwealth Act, in the case of death of a passenger, liability under Part IV of that Act is -

"subject to section 37 ... in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger, or in respect of the injury that ... resulted in the death of the passenger."

It was common ground before me that the Carriers legislation, so far as the dependants of a deceased passenger are concerned, sets up a cause of action distinct from and in substitution for the cause of action created by s.16 of the Wrongs Act 1958.[2]

28. By s.31(a) of the Commonwealth Act Anderson's liability under Part IV of that Act "in respect of each passenger, by reason of his injury or death resulting from an accident", was limited to $180,000.

31. The amount of the settlement of the dependants' claim, that is, $180,000, is one matter which, as I said a few moments ago, shows clearly that the parties considered themselves to be settling a claim brought under the Carriers legislation. The significance of that amount was emphasised by agreement reached between the parties to the present proceedings that damages, if assessed under the provisions of Part III of the Wrongs Act, would have amounted to not less than $360,000.[3]

34. In this proceeding the essential issue concerned determination of the amounts attributable to factors A and C in a formula set up by s.138(3)(b) of the Act. According to the plaintiff's case the amount of factor A was, on all formulations save one, $360,000; and the amount of factor C was, on all formulations save one, $180,000. In the one variation, the amount of factor A was $180,000 and the amount of factor C was zero. It can be seen, then, that however the plaintiff formulated the matter there was a differential of $180,000 between factors A and C. According to the defendants' case, however, the amount of both factors was $180,000.

38. Section 138, as amended in 1994, was relevantly in these terms[4]:

"138. Indemnity by third party (1) Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, an authorised insurer, a self-insurer or an employer was caused under circumstances creating a legal liability in a third party to pay damages in respect of the injury or death, the Authority, authorised insurer, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section. ... (3) The amount which a third party is required to pay as indemnity under sub-section (1) is the lesser of - (a) the amount of compensation paid or payable under this Act in respect of the injury of death; (b) the amount calculated in accordance with the formula - X x A - (B + C) - 100 1 where - X is the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death; A is the amount of damages for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death were it not for the provisions of this Act and the Transport Accident Act 1986; B is the amount recovered or recoverable by the Authority, the authorised insurer, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement); C is the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party."

The Application of s.138(1)

44. It was common ground[5] that Mr Waddell's death "was caused under circumstances creating a legal liability in a third party to pay damages in respect of the injury or death"; and that such liability was a liability arising under the Carriers legislation.

The s.138(3)(b) Formula: Matters Agreed

48. By s.138(3) the amount which Anderson is required to pay is to be the lesser of the amount of compensation paid (that is, $168,205) and the amount calculated in accordance with the formula set out in paragraph (b).

51. Two matters pertinent to the application of the formula were agreed. First, that factor X was 100% - Anderson's act, default or negligence being wholly the cause of Mr Waddell's injury and death. Second, that factor B was zero - no amount being recoverable from the Transport Accident Commission.

The s.138(3)(b) Formula: Matters in Dispute

55. The main argument centred around the determination of factor A. In one connection only an issue was raised concerning factor C.

58. Factor A involves consideration in some cases of an hypothetical situation. It requires an assessment of the amount of damages that the third party "is or would have been liable to pay" were it not for the provisions of the Act and the Transport Accident Act (TAA). The grammar of that provision is unsatisfactory; but I think that the meaning is clear enough. Factor A requires determination of the amount of damages which the third party is liable to pay in respect of the injury or death, or the amount of damages which the third party would have been liable to pay in respect of such injury or death were it not for the provisions of the Act and of the TAA. Necessarily, the formula must embrace both factual situations.[6]

61. Subject to arguments developed for the plaintiff, I should have thought it was clear that the ceiling amount of damages for pecuniary loss which Anderson was liable to pay was not more than $180,000 - that is, the amount fixed by s.31(1)(a) of the Commonwealth Act; and further, that the amount of pecuniary loss damages for which Anderson was liable in fact was $180,000 - it being common ground that an assessment of the dependants' damages pursuant to s.35 of the Commonwealth Act must have yielded at least $180,000, the statutory maximum being thereby identical with the amount for which Anderson was liable.[7]

64. In that event, taking factor C to be the amount actually paid by Anderson to the dependants - that is, $180,000 - the result of the paragraph (b) calculation would be zero. Thus -

69. According to the arguments pursued for the plaintiff, however, the amount of factor A was $360,000 (save in a situation to which I shall later refer) for one of two reasons. First, because if the matter was governed by the Carriers legislation then the effect of s.37 of the Commonwealth Act was to increase the amount of factor A in this case to 360,000. Second, because, if the matter was governed by s.135A(9) of the Act or otherwise by Part III of the Wrongs Act, the amount of factor A was not less than $360,000.

72. I do not accept the first submission for three reasons. First, in my opinion s.37(2) does not have the effect of setting a carrier's maximum potential liability at double the amount fixed by s.31(1)(a). Second, I doubt that the amount of an indemnity for compensation paid should on general principles be described as damages. Third, the language of factor A is decisively against treating the amount of such an indemnity as damages.

75. I should say a little more about those reasons. As to the first, s.37 is notionally capable of meaning that the amount fixed by s.31(1)[8] applies as an overall ceiling - which may be made up of a liability under s.35 and a liability under s.37, or one or the other; or as meaning that the amount fixed by s.31(1) applies as a separate limit to a claim under s.35 and to the indemnity or contribution provided for by s.37; or as meaning that the amount fixed by s.31(1) limits the carrier's liability under s.35, but that it has no application at all to the liability to indemnify or contribute under s.37, which is unlimited as to amount.

78. Read naturally, I consider that the last portion of s.37 means only that the discrete liability imposed by that section is not to increase the limit upon liability prescribed by 31(1). The limit upon liability of carriers imposed by 31(1) is "in respect of" each passenger who is injured or killed. Section 35(1) picks up that concept. The provisions of that section apply in relation to liability imposed "in respect of the death of a passenger". Section 37 imposes a different kind of liability than does s.35. It is not a liability substituted for a civil liability otherwise existing. That serves to explain the opening words of s.35(2) - "Subject to s.37". The last portion of s.37 picks up the concept of "the limit of liability ... in respect of a passenger". What that part of the section is concerned to do, in my opinion, is to emphasise that the discrete liability imposed by the section "does not operate" to increase that limit. That seems to me to be entirely consistent with the thrust of s.31(1), which is to impose a ceiling on the liability of carriers "in respect of" each passenger.

81. I see no realistic way in which s.37 could be read to mean that the potential liability imposed by that section is to be in the same amount as the limit of liability imposed by 31(1). The only other alternative, that is, that the liability imposed by s.37 is unlimited, seems to me wholly unrealistic having regard to the scheme of the Carriers legislation.

84. I turn to the second reason for rejecting the plaintiff's submission that the effect of s.37 was to increase the amount of factor A in this case to $360,000. To achieve that outcome it would be necessary to treat moneys payable under s.37(a) by way of indemnity for payments of workers' compensation as damages (I presently put to one side the particular language of factor A).

87. Even within the Commonwealth Act the liability to indemnify is not treated as a liability to pay damages: Contrast the language of s.37(a) and the language of ss.33(1), 34, 35(4) (7) and (8), 38, 39(1) (2) (3) (4) and (5).

90. The Commonwealth Act apart, on ordinary principles I doubt that the indemnity should be so regarded. Again, the judgment of the Court of Appeal in Esso Australia Ltd v. Victorian WorkCover Authority & Anor [2000] VSCA 74, though not squarely in point, tends in favour of a conclusion that an amount payable under the indemnity should not be regarded as damages.[9]

93. I turn to the third reason for rejecting the submissions now under discussion. Factor A, as relevantly defined, did not refer to damages at large, but rather to "damages for pecuniary loss and non-pecuniary loss which the third party is or would have been liable to pay" but for the provisions of the Act and TAA. The reference to "damages for pecuniary loss and non-pecuniary loss" was plainly a reference to damages which a worker or a worker's dependants may recover in a proceeding permitted by the Act. See s.135A(1)(a) and (b). It could be no coincidence that those provisions were amended by Act 50 of 1994 to introduce references to "damages for non-pecuniary loss" and "damages for pecuniary loss", and that s.138 was then amended to make use of those terms.

96. The nature of the damages referred to by factor A in its relevant form is made still plainer by its inclusive reference to damages that would have been payable were it not for the provisions of the Act and the TAA. What those Acts relevantly did was to inhibit the right of injured persons and the dependants of such persons to bring actions for damages against negligent employers and third parties.

99. Again, it would be a strange situation indeed if the amount of damages for the purposes of factor A included an indemnity payable by the third party to VWA when the whole purpose of the formula was to ascertain the amount of the indemnity.

102. Finally, I consider that the language of factor A in its pertinent form should not be read so as to impose upon Anderson liability in an amount which exceeded Anderson's liability to the dependants.

105. The second argument advanced for the plaintiff why the amount of factor A was $360,000 was that the amount of damages which Anderson was or would have been liable to pay was the amount payable at large under Part III of the Wrongs Act, or else that amount as delimited by s.135A(9) of the Act. In either case, it was common ground that such damages were not less than $360,000. Neither party proposed any larger sum.

108. As I understand it, the plaintiff's arguments were these: first, on 18 September 1995 the dependants commenced a proceeding in the County Court claiming damages under Part III of the Wrongs Act. They made no claim under the Carriers legislation. By the operation of section 34 of the Commonwealth Act the dependants' right of action under the Carriers legislation became extinguished on 22 September 1995. Such a right of action could not be revived. Any amount paid was thus paid in respect of a claim under Part III of the Wrongs Act. Whether such a claim was at large, or whether it was subject to the ceiling of $500,000 imposed by s.135A(9) of the Act mattered not; for the admitted quantum of such a claim was at least $360,000, and neither party pressed any greater sum.

111. Second, the amount of damages for pecuniary loss for which Anderson would have been liable but for the provisions of the Act was ascertainable by reference to s.135A(9) of the Act and then by reference to the admitted "not less than" quantum of a claim brought under Part III of the Wrongs Act.

114. I should deal immediately with the second of those arguments. I reject it. If it be assumed, contrary to the way that the case was argued, that the dependants were precluded from bringing a claim under the Carriers legislation, and if it then became necessary to consider the amount of pecuniary loss damages for which Anderson would have been liable but for the provisions of the Act, that amount was not the amount fixed by s.135A(9). It was the amount that would have been payable as damages in accordance with the provisions of the Carriers legislation - that is, $180,000. The suggestion that the amount was either the amount, or no more than the amount, fixed by s.135A(9) could not be accepted because its acceptance would involve recourse to the Act to determine the amount of damages that Anderson would have been liable to pay were it not for the Act.

117. I turn to the first of the arguments noted a moment ago. I cannot accept it. If the dependants' assumed right to bring a claim under the Carriers legislation became extinguished, as counsel for the plaintiff asserted it did, so be it. That could not mean, if a settlement was thereafter reached and money paid, that it was paid in respect of a liability to pay damages which never enured against Anderson - even if the dependants asserted the existence of a right of action which involved such a liability.

120. It is convenient to here mention in a little detail the import of the various communications that passed between the dependants' advisers and Anderson's solicitors. Those communications, as I have earlier concluded, show a clear understanding that the dependants' claim was governed by the Carriers legislation. They further show, I think very clearly, that settlement under that legislation was in fact reached well before the writ was filed. The writ was filed because, as I noted earlier, there were minors involved, and it was necessary to obtain the court's approval of the settlement.

123. After filing, a "formal" offer was sought and made; and a "formal" acceptance was conveyed. Those steps were evidently taken to ensure that the dependants' solicitors did not fall foul of the rules of court. In substance, nothing changed. Any suggestion that, because the general endorsement on the writ referred to Part III of the Wrongs Act and framed a claim in negligence, the dependants sought in fact to raise a claim under that Act, and that the parties revolved their differences on the basis of that assertion could not be seriously entertained.

126. I referred a moment ago to the submission of counsel for the plaintiff that the dependants' right of action under the Carriers legislation became extinguished because action was not commenced within two years of the critical event. The consequences of the asserted extinguishment were said to be threefold. First, that factor A could not be the amount of $180,000. Second, that the amount paid should not be taken into account in determining factor C. Third, that it must follow, in light of the language of the general endorsement, that what had been raised was a claim under Part III of the Wrongs Act, which claim had been settled for the amount paid.

129. I have already rejected the third asserted consequence. I also reject the first. Even if it was the case that the dependants' assumed right of action did become extinguished, it would not follow that factor A would be other than $180,000. That is so for two reasons. First, factor A does not concern itself, in my opinion, with whether a liability to pay damages as specified becomes extinguished or statute-barred. It is rather concerned with whether such a liability came into existence or would have come into existence were it not for the provisions of the Act or of the TAA. In the latter situation, obviously enough, a limitation period could have no relevance. Logically there is no reason why it should be given relevance in the former situation.

132. Second, even if it was the case that the dependants' claim under the Carriers legislation became extinguished, it appears to me that the amount of such liability had been established by agreement reached before such extinguishment; and (if it matters) that the widow could have sued upon such agreement.[10]

135. It is the fact that this release made no reference to the children of the late Mr Waddell.[11] But that does not mean that it was not an agreement quantifying the amount of damages for which Anderson was liable to the widow, nor that the widow could not have sued upon the release, which contemplated a payment of $180,000.

138. Counsel for the plaintiff submitted that, if the widow had been able to sue, it would have been for a sum due on an agreement, not for an amount of damages payable under the Carriers Act. So, he contended, it could not be said that the amount payable under the release was, for the purposes of factor A, an amount of damages for which Anderson was or would have been liable were it not for the provision of the Act and the TAA.

141. Even if the first part of that submission were accepted, the second part would not follow. The release might fairly be said to have established the amount of damages for which Anderson was liable. The fact that the amount so established was very probably recoverable by action on the agreement, if needs be, would really take the matter no further.

144. In dealing with the submission of counsel that the dependants' right of action against Anderson under the Carriers legislation became extinguished, and the consequences of alleged extinguishment, I have so far assumed that there was such extinguishment, and that the right of action could not be revived. It is unnecessary for me to decide whether that part of counsel's submission was correct, but in deference to the argument that was advanced I should say something about the matter.

147. On balance, I consider that the submission was correct. But there is undoubtedly quite a strong argument to the contrary in Victoria in the case of a claim arising out of injury or death occurring in the course of an intrastate journey.

150. Three authorities were cited by counsel. Proctor v. Jetway Aviation Pty Ltd[12], subject always to its being distinguishable, stands against the plaintiff's contention. Proctor involved the death of a passenger by reason of an air crash occurring in the course of an intrastate charter flight. The widower of the deceased brought a proceeding in which negligence was alleged and in which reference was made to the New South Wales equivalent of Part III of the Wrongs Act. Later, and outside the two-year period, application was made to amend the statement of claim to allege, specifically, the essential ingredients of a claim under the Carriers legislation. It is unnecessary to chart the course of the litigation. It is enough to say that the plaintiff succeeded in the Court of Appeal. The plaintiff succeeded because, in the opinion of the court, the matter fell within Part 20 rules 4 and 5 of the Rules of Court which provide -

" 4. Statutes of limitation. (1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (2), (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired. ... (5) Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the Court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action."

Those rules had been introduced as a schedule to the Supreme Court Act 1970 (NSW), by s.6 of which

"Any Act in force immediately before the commencement of this Act which is inconsistent with the rules, shall be superseded to the extent of such inconsistency and while such inconsistency continues to exist."

The Court of Appeal determined, consistent with earlier authority, that the effect of the critical rules was to displace the rule in Weldon v. Neal (1887) 19 QBD 394, and that the amendment was not futile because amendment dated from the date of commencement of the proceeding. Having regard to the fact that the proceeding had in fact been commenced within the two-year period, grant of leave to amend had the effect that the widower's right of action had never been extinguished.[13]

157. Counsel for the plaintiff relied on Timeny v. British Airways PLC.[14] In that case application was unsuccessfully made under s.48 of the Limitation of Actions Act 1936 (SA) for an extension of time to make a claim under the Carriers legislation in the case of injury sustained by a passenger in the course of an international flight. King, CJ. was able to resolve that question on the footing that the South Australian provision had no application to the time limit imposed by Commonwealth legislation.[15] His Honour further concluded that if the State section could apply at all, it could not apply to enable an action to be brought to enforce a right which had been extinguished.[16] Bollen, J. noted at several points that the circumstances and legislation in Proctor were different to those before the court.[17] His Honour observed that the court was interpreting an international convention.[18] He referred to "foreign authority", and concluded that the right of action must be exercised within the two-year period. "If not it is extinguished, dead and gone forever."[19]

160. Counsel for the plaintiff also relied upon the decision of Cullinane, J. of the Supreme Court of Queensland in Staples v. City and Country Helicopters Pty Ltd & Anor.[20] Like Proctor, and unlike Timeny, that case involved injuries sustained by a passenger in the course of an intrastate journey. The plaintiff sought leave to amend his proceeding outside the two-year period to allege a claim under the Carriers legislation. The application was refused. Cullinane, J. held that the proposed amendment sought to plead a new cause of action that had been extinguished by statute. The plaintiff could not successfully rely on Order 32 of the Supreme Court Rules 1900 (Qld).[21] The case was not one of expiry of a period of limitation, but extinguishment of a right of action. His Honour relied upon Queensland decisions in which the effect of extinguishment of a right had been considered. He distinguished Proctor on the footing that the particular legislative framework was there determinative.[22]

163. None of the three authorities cited is exactly in point. In Proctor there was an intrastate journey; and the problems noted by King, CJ. in Timeny in seeking to apply a State extension provision to Commonwealth legislation did not arise. On the other hand, in Proctor, there were provisions - s.6 of the Supreme Court Act 1970, and s.63 of the Limitation Act 1969 - which have no replica in Victoria. Staples did involve an intrastate journey, and in Queensland there was a rule approximating the New South Wales rule of court which the Court of Appeal considered in Proctor permitted amendment to add a cause of action so as to preclude extinguishment. Yet the rule was not considered by Cullinane, J. to be capable of use to achieve such an outcome. Again, the circumstances of none of the three authorities raised for consideration a statutory provision such as s.34(1) of the Limitation of Actions Act 1958.[23] That section and R.36.01(6) of Chapter 1 commenced at the same time. They commenced long after the enactment of what I have called the Victorian Act. In that respect they mirror the situation in Proctor. But s.34 is not a mirror of the New South Wales legislation. Moreover, the precise interrelationship between and operation of s.34 and R.36.01(6) has not been fully determined.[24] In all the circumstances, I doubt whether the legislative warrant is sufficiently clear in Victoria to justify Proctor being followed in the case of claims based upon intrastate carriage. But certainly there are points of distinction both with Timeny and Staples.

166. I turn, finally, to the second asserted consequence of the dependants' right of action becoming extinguished - that is, that the amount paid by Anderson should not be taken into account in determining factor C, so that factor C must be zero. That situation alone was said for the plaintiff to lead to factor C being other than $180,000.

169. The language of factor C in the form presently relevant contemplated that the worker or the worker's dependants (as the case might be) had a right of action against the third party. It was not any part of the plaintiff's submission upon the point now under discussion that the dependants did not have, up until 22 September 1995, such a right of action. The submission was simply that the amount paid was not, in the circumstances described, payment under settlement of an action by the dependants, because that right of action had been lost at the time when the action was settled and the compromise was approved.

172. I reject that submission. If the potential claim under the Carriers legislation did become extinguished on 22 September 1995, it does not follow in the peculiar circumstances of the case that the amount paid was not paid under settlement of an action founded on such legislation. Settlement, in substance, preceded the filing of the writ. The settlement was founded upon a claim made under the Carriers legislation. The action when commenced had, in substance, already been settled. The basis of settlement did not alter simply because of the form of the general endorsement.

175. On the other hand, if the dependants' right of action under the Carriers legislation did not become extinguished on 22 September 1995, I consider that it was open to the parties thereafter to reach or confirm settlement of a claim which both treated as being founded upon such legislation. It did not matter, in my opinion, that the general endorsement was not amended; or that a statement of claim properly framing such a right of action was not filed and served. An amount paid pursuant to the settlement should nonetheless be regarded as having been paid pursuant to the Carriers legislation.

178. I should add three further matters in the present connection. First, whether the dependants' right of action in fact became extinguished on 22 September 1995 remains a matter of uncertainty. Argument is available either way, as shown by my brief review of the authorities cited. Compromise of the dependants' claim, in such circumstances, was arguably settlement falling within the language of factor C.

181. Second, I understood counsel for the plaintiff to argue[25] that if factor C was zero because Anderson had no liability to make such payment, factor A would be $180,000 by operation of s.37 of the Commonwealth Act. I have concluded that factor A could never take account of a s.37 indemnity amount. On the argument advanced for the plaintiff, then, both of factors A and C would be zero.

184. Third, there is another approach which would yield the result that Anderson could have no liability to VWA. If it was right to consider factor C at a time after a right of action has been extinguished, might it not also be pertinent to consider whether s.138(1) was satisfied at that same time, not consider simply whether at some time the circumstances had created a legal liability in Anderson to pay damages? Such an approach, whatever textual difficulties it might encounter, would have the outcome that Anderson would not be put in the de facto position of paying twice over.

187. Before parting with this matter, I should refer to that portion of the factor C formula which referred to payment made "under any settlement of, or judgment in, an action by the ... dependants ... against the third party".[26] Read literally, the provision could mean that an amount paid pursuant to settlement without action being commenced was outside the purview of factor C. Such a reading would be remarkable in its results. It would eliminate consideration of an amount consideration of which might produce a zero answer under the formula. It would necessitate a third party in all circumstances requiring a worker or his dependants to commence an action - even if settlement had in reality been agreed - in order that the third party protect itself against the possible problem created by the language of s.138(3)(b).

190. Such results, prime beneficiaries of which would be legal practitioners and the courts, by way of legal costs and filing fees respectively, should if possible be avoided. That said, the language of s.138(4) in its then and present form is compatible with the literal reading of the language in s.138(3)(b) to which I have referred. Whether to make the matter clear, or to remove a problem, reference needs to be made by the legislation to an amount paid under a settlement arrived at whether before or after a proceeding is commenced.

194. The dependants made and compromised a claim under the Carriers legislation. The amount of $180,000 was paid under a settlement satisfying the language of s.138(3)(b) so far as factor C is concerned. The amount of damages for pecuniary loss, pertinent to determination of the factor A amount, was $180,000. For a number of reasons it did not include the amount of an indemnity payable by Anderson to VWA under s.37 of the Commonwealth Act. As the case was argued, Part III of the Wrongs Act, notwithstanding the general endorsement, was irrelevant to the dependants' claim, to

its settlement, and to the amount of $180,000 which was paid. The formula set out by s.138(3)(b) yields, in the particular case, the answer zero.[27]

198. In the event, there must be judgment for the defendants.

[1] That includes an amount paid for funeral expenses, and excludes interest paid on the sums awarded.

[2] One obvious point of distinction between the two causes of action is that liability under s.16 depends upon proof of fault, whereas liability under s.35(2) depends only upon proof of the occurrence of a specified event - although contributory negligence is nonetheless available in respect of a s.35(2) claim: See s.39(1).

[3] That agreement facilitated debate. It is not to say that $360,000 represented the likely extent of the dependants' claim, if assessed under Part III of the Wrongs Act.

[4] All counsel agreed that the text of s.138 as it appeared in Reprint 5 of the Act was the pertinent text for present purposes.

[5] But see one matter which I later raise in connection with argument concerning factor C

[6] In deciding which of the two situations applies in an individual case, I think that the better view is this: where the commencement of a proceeding is not altogether precluded, but is subject to inhibitions such as the threshold and ceiling provisions of s.135A and the prohibition upon making a claim for medical and like expenses, or for Griffiths v. Kerkemeyer damages, then the first situation applies; but in cases where a proceeding simply cannot be brought, the second situation is that which applies.

[7] I have referred to an amount of damages for which Anderson was liable rather than to an amount of damages for which Anderson would have been liable, because the case was conducted for the plaintiff on the footing that the dependants were not precluded, except by s.34 of the Commonwealth Act, from bringing a claim for damages against Anderson under the Carriers legislation. No question arose whether such a claim was available having account of s.135A(1) and (8) of the Act. The plaintiff relied upon s.135A(9), however, in connection with the determination of factor A.

[8] and perhaps also the amount fixed by s.31(2), but I will focus upon the s.31(1) amount

[9] The pertinent questions there were whether damages for pecuniary loss and non-pecuniary loss included damages in the nature of interest under s.60 of the Supreme Court Act (as to which see per Winneke, P. at paragraphs 22 and 23); and whether interest should be awarded upon amounts of indemnity established by s.138 (as to which see per Winneke, P. at paragraphs 24 to 29). I was told by counsel, I should add, that special leave to appeal has been granted in that matter.

[10] See the release at court book 78-81.

[11] Compare the release at court book 82-85.

[12] [1984] 1 NSWLR 166

[13] See per Moffitt, P. at 171B-C, 172F, 174F-175A, 176A-B, per Glass, JA at 181B-D and per Priestley, JA at 182F-183G, 186B-C and 186G.

[14] [1991] SASC 2961; (1991) 102 ALR 565 (FC, SC of SA).

[16] The basis for that conclusion is exposed at 567 line 40 - 568 line 4.

[17] See at 573 lines 15-24 and 574 lines 38-41.

[20] (1993) 119 FLR 291

[21] A rule approximating the New South Wales rule considered in Proctor.

[23] It was inserted by Act 110 of 1986.

[24] See Anglo Irish Beef Processors International v. Federated Stevedores Geelong (1996) 140 ALR 658 at 661-663 per Phillips, JA.

[25] See Transcript 26 October 2000, page 13 lines 13-21

[26] The same language is used in the present s.138(3)(b).

[27] It is not correct to say, as counsel for the plaintiff submitted, that if the defendants' argument in this case was accepted the answer must always be zero. In many cases, as I pointed out in argument, the amounts of factors A and C will or may vary.