Shinwari v Anjoul by her tutor Therese Anjoul

1. [1]

   McCOLL JA: The applicant, Dr Mohammad Shinwari, seeks leave to appeal and to appeal from a decision of RS Hulme AJ that Pt 4 of the Civil Liability Act 2002 (NSW) (Liability Act) does not apply to a dependency claim made by the respondent, Tobei Anjoul, by her tutor Therese Anjoul, under the Compensation to Relatives Act 1897 (NSW) (Relatives Act). [1] The primary judge determined that issue in a separate trial ordered pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 28.2. An appeal lies by leave of the Court of Appeal from such a decision. [2]

2. [2]

   I would grant leave to appeal as the case concerns an important question concerning the inter-relationship between the Relatives Act and the Liability Act. For the reasons which follow, I would dismiss the appeal with costs.

Factual background

1. [3]

   The appellant is the defendant in proceedings brought under the Relatives Act by the respondent, the infant daughter of the late Grace Yates (the deceased). He was employed by the Psych N Soul Clinic (Clinic), which offered “rapid opiate detoxification” services to treat opiate addiction. The deceased underwent detoxification at the Clinic on 29 September 2010 and suffered a cardiac arrest that afternoon. She was admitted to Royal Prince Alfred Hospital and placed on life support. She died on 30 November 2010, shortly after life support was withdrawn.

2. [4]

   The clinic was owned by R & D Counselling and Group Therapy Pty Ltd (R & D). Dr Ross Colquhoun was a director of R & D. He also managed the clinic.

3. [5]

   By Statement of Claim filed on 28 March 2014, the respondent brought proceedings pursuant to s 3 of the Relatives Act against Dr Colquhoun and the appellant alleging that her mother had died in consequence of their failure to exercise reasonable care and skill in the provision of advice and treatment in relation to her mother’s opiate addiction (dependency claim). On 24 April 2014, the respondent filed an amended statement of claim restricting her claim to one against the appellant.

4. [6]

   In his defence, the appellant contended that the respondent’s claim was properly characterised as a claim for economic loss not “arising out of personal injury” as the latter expression is defined in Liability Act, s 5, and that, accordingly, such a claim fell within the definition of an “apportionable claim” under Pt 4 of the Liability Act. He further submitted that if he was liable, Dr Colquhoun and R & D were concurrent wrongdoers, and accordingly, any damages the respondent may recover from him should be apportioned between them pursuant to Pt 4 of the Liability Act. Paragraphs 34 to 82 of the defence particularised “the suggested involvement and defaults of Mr Colquhon and his company, and the Defendant’s claim against them.” [3]

5. [7]

   On 12 December 2014 the respondent filed a notice of motion seeking the following orders:

6. [8]

   The appellant consented to issues identified in paragraph 2 of the motion being determined separately.

Legislative framework

1. [9]

   Sections 3 and 4 of the Relatives Act provide:

2. [10]

   There are no relevant definitions in the Relatives Act which would assist in the resolution of the construction issue.

3. [11]

   Pt 4 of the Liability Act is entitled “Proportionate Liability”. Sections 34 and 35 provide relevantly:

4. [12]

   There is no definition of “personal injury” in Pt 4 of the Liability Act. Nor is the term itself defined elsewhere in the Liability Act. Rather the term (or expressions including it, such as “personal injury damages”) is referred to in various provisions other than in Pt 4 which refer to matters the relevant term includes. The application of those provisions which appear elsewhere is substantially confined to the Part of the Liability Act in which they appear. [4]

5. [13]

   However, the relevant definition where it variously appears is the same. Thus, “personal injury” is defined to include (a) pre-natal injury, and (b) impairment of a person’s physical or mental condition, and (c) disease in Pt 1A (Negligence), s 5 and Pt 3 (Mental harm), s 27.

6. [14]

   “Personal injury damages” is defined to mean “damages that relate to the death of or injury to a person” in Pt 2 (Personal Injury Damages), s 11, in Pt 2A (Special provisions for persons in custody), s 26A, while s 47(1) in Pt 6 (Intoxication) and s 51(1) in Pt 7 (Self-defence and recovery by criminals) both apply the Pt 2 definition of “personal injury damages”.

7. [15]

   Other expressions include a reference to “personal injury”. Section 5 in Pt 1A (Negligence), defines “harm” “in this Part” as follows:

8. [16]

   “Negligence” in s 5 is defined to mean “failure to exercise reasonable care and skill”. [5] This, it might be noted is expressed somewhat differently to what might be thought was also intended to be a reference to negligence in s 34(1), “failure to take reasonable care”. However, as Basten JA observed in Cassegrain v Cassegrain, [6] “the tort of negligence is always expressed in terms of a duty to take reasonable care.”

9. [17]

   However, in apparent contradiction to the language in s 5, s 5A, which also appears in Pt 1A, has more extensive application. Pursuant to s 5A(1), Pt 1A “applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.” The significance of this is addressed later in these reasons. [7]

10. [18]

    In Pt 2 (Personal Injury Damages), s 11 defines “injury” as follows:

11. [19]

    There are two references to the Relatives Act in the Liability Act.

12. [20]

    First, s 5T which appears in Pt 1A, Div 8 provides:

13. [21]

    Secondly, by virtue of s 26B(2)(a), Pt 2A dealing with Special Provisions for Offenders in Custody, does not apply to an award of damages pursuant to an action under the Relatives Act.

Legislative history

1. [22]

   It is a given that the task of statutory construction must begin with a consideration of the text itself as the language which has actually been employed in the text of legislation is the surest guide to legislative intention and that historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. [9] Nevertheless, as will become apparent, the history of Pt 4’s insertion into the Liability Act is significant in terms of the construction of s 34. [10]

2. [23]

   As is well understood, the Liability Act had its genesis in the recommendations of the Review of the Law of Negligence, prepared by a Panel appointed by the Commonwealth and State governments and chaired by Justice David Ipp.

3. [24]

   One of the Panel’s Terms of Reference was to “develop proposals to replace joint and several liability with proportionate liability in relation to personal injury and death, so that if a defendant is only partially responsible for damage, they do not have to bear the whole loss.” The Panel construed that Term of Reference as requiring it to give “careful consideration to, and evaluat[e] options for, the reform of this important area of the law.” [11]

4. [25]

   Having done so, the Panel made no recommendation to replace joint and several liability with proportionate liability in relation to personal injury and death. This was because the Panel concluded that a major problem of principle weighed conclusively against any proposal to introduce a system of proportionate liability in relation to negligently-caused personal injury or death for such a system. This was, in short, that it was difficult to justify such a system which had the result, that a person who was harmed by two people may be worse off than a person who is harmed by one and, conversely, a person who negligently caused harm to another will be better off merely because someone else also caused the person harm. [12] Accordingly, Recommendation 44 of the Ipp Report was that “[i]n relation to claims for negligently-caused personal injury and death, the doctrine of solidary liability should be retained and not replaced with a system of proportionate liability.”

5. [26]

   In the course of considering this issue, the Ipp Report noted that “law reform bodies, both in Australia and overseas, have considered the question of whether solidary liability should be replaced by a system of proportionate liability. Some have concluded that in cases of pure economic loss, that is, loss not consequent upon personal injury or death, proportionate liability should be introduced”. [13] Among the reports to which a footnote to this paragraph referred, was Professor Davis’ Inquiry into the Law of Joint and Several Liability: Report of Stage 2. [14]

6. [27]

   The genesis of Pt 4 of the Liability Act was discussed by the majority (French CJ, Hayne and Kiefel JJ) in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd, principally by reference to the Davis Report. [15] Their Honours noted the Davis Report recommendation that “joint and several liability be abolished, and replaced by a scheme of proportionate liability, in all actions in the tort of negligence in which the plaintiff’s claim is for property damage or purely economic loss”. [16] Although their Honours did not refer to this fact, the Terms of Reference for Professor Davis’ Inquiry expressly excluded “any examination of the rule of joint and several liability in relation to personal injury claims”. [17]

7. [28]

   Although their Honours recognised that the Davis Report was not mentioned in the Second Reading Speech or the Explanatory Notes to the Personal Responsibility Act, which introduced Pt 4 of the Liability Act, they perceived “a clear connection” between the two, apparent from the fact that in 1996 SCAG released Draft Model Provisions which reflected the recommendations of the Davis Report, which draft model provisions, their Honours said, were eventually adopted, in substantially the same form, in Pt 4 of the Liability Act and by the other states and territories. [18]

8. [29]

   The Draft Model Provisions were prepared “in the form of a Part that can be inserted into an appropriate Act of the Commonwealth and of each State.” A “Drafting note” in the body of the Draft Model Provisions instructed “Each jurisdiction is to strike out the paragraphs that are inapplicable to it and to adapt other relevant paragraphs as necessary for the purposes of that jurisdiction.” [19]

9. [30]

   As originally enacted in Sch 1 [5] of the Personal Responsibility Act, s 34 (original s 34) provided:

10. [31]

    The original s 34 substantially adopted the provision the Draft Model Provisions proposed headed “Apportionable claims against concurrent wrongdoers”, save that it struck out the paragraphs applicable to Commonwealth legislation. It also inserted sub-sections (4) and (5) which did not find any reflection in the Draft Model Provisions. However, a provision in like terms to s 34(4) did appear in other proportionate liability legislation. [20]

11. [32]

    However, before Sch 1 [5] commenced, it was amended by the Civil Liability Amendment Act 2003 (NSW). [21] The main purpose of the Civil Liability Amendment Bill (2003) (NSW) (2003 Bill) was to amend the Liability Act to address issues arising from Presland v Hunter Area Health Service [22] and Cattanach v Melchior [23] which were described by the Premier, the Hon Morris Iemma, in the Second Reading Speech, [24] as “two recent court cases that caused considerable community concern.” The Premier also explained that, “[i]n the interests of national consistency” the 2003 Bill made “some small changes to the proportionate liability provisions to adopt the changes discussed with other jurisdictions.” The Explanatory Note to the 2003 Bill explained that the amendments were undertaken “as part of the process of refining the operation of the proportionate liability provisions [then] being undertaken by the States, the Territories and the Commonwealth.”

12. [33]

    Section 34(1)(a) as now in force incorporates the 2003 amendments and also subsequent amendments which inserted a new s 34(1)(b) made by Sch 3.2 of the Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW) and s 34(3A) made by Sch 2 [1] of the Home Building Amendment Act 2011 (NSW). It now provides:

13. [34]

    In addition, the 2003 Amendment Act inserted s 34A (subsection (1)(c) of which substantially reproduced s 34(5) of the original s 34) and s 35A, neither of which found reflection in the Draft Model Provisions.

Agreed facts

1. [35]

   The separate hearing proceeded before the primary judge on the basis of an extensive agreed statement of facts which relevantly included the following:

Primary judgment

1. [36]

   During the hearing of the notice of motion, the parties agreed that paragraph 2(a) of the respondent’s motion adequately identified the issue for separate determination, that is to say, whether Pt 4 of the Liability Act applied to the respondent’s cause of action for damages brought pursuant to the provisions of the Relatives Act. [25]

2. [37]

   The primary judge held that it was not necessary to consider the parties’ extensive submissions in respect of whether a Relatives Act claim was an “apportionable claim”. His Honour also concluded that the extrinsic evidence to which both parties had referred did not aid in the interpretation of the provision. Rather, in his view, the terms of s 34, and the inherent nature of an action under the Relatives Act, made his conclusion plain. [26]

3. [38]

   After setting out s 3(1) of the Relatives Act, the primary judge said:

4. [39]

   The primary judge then set out s 4 of the Relatives Act, the effect of which his Honour summarised as being that “damages [under that Act] are calculated by reference to the injury or loss suffered by the group of persons mentioned.” [27] He turned to s 34 of the Liability Act, and said:

5. [40]

   The primary judge also rejected the appellant’s submission that a Relatives Act claim crystallised on death, and that personal injury was irrelevant to such an action because it was not a necessary precondition to a person’s death. In his Honour’s view, an essential ingredient of s 3 of the Relatives Act was that a person had been injured and died. [28]

6. [41]

   Accordingly, his Honour held that Pt 4 of the Liability Act did not apply to the respondent’s claim under the Relatives Act. He struck out paragraphs 34 to 82 of the Defence and ordered the appellant to pay the respondent’s costs of and incidental to the application.

Issues on appeal

1. [42]

   The appellant’s draft notice of appeal contains the following four grounds of appeal all directed to the only question to be determined, as was the case below, as to whether Pt 4 of the Liability Act applies to the respondent’s claim under the Relatives Act:

2. [43]

   The respondent raises the following issues by notice of contention:

Appellant’s submissions

1. [44]

   Mr J Morris of Senior Counsel, who appeared for the appellant before the primary judge as well as in this Court, with Mr G Babe accepted that, in the circumstances which led to her death, the deceased would have had an action for personal injury damages up to and including the time of her death, a claim which would have been preserved for the benefit of her estate. This was on the basis that she was injured, and that injury led to her death. He also accepted that at least one basis for this was the statement in the agreed facts that, following her cardiac arrest, the deceased was diagnosed with hypoxic-ischaemic brain damage.

2. [45]

   As an overview, Mr Morris submitted that the reference to “claims” in s 34 of the Liability Act related to “legal claims”. He argued that claims arising out of personal injury and claims arising out of death (the latter being his characterisation of a Relatives Act claim) were entirely different. Section 34 related only to claims arising from personal injury, as opposed to death arising from personal injury. He submitted that in the context of s 34, the words “arising out of personal injury”, and the absence of the word “death” from that provision, invited the conclusion that the s 34 exclusion was a constrained, rather than an expansive, definition. Put slightly differently, his submission was that to be excluded from Pt 4, the relevant claim had to be brought by the person who had suffered the personal injury. Accordingly, claims arising out of death were not excluded from Pt 4 of the Liability Act.

3. [46]

   Mr Morris suggested that the logic for this construction was to reflect the legislative intention that the Liability Act should impose thresholds and caps on common law damages. A restriction on a Relatives Act claim which had the effect that, using the present case as an example, the respondent’s recovery should only be apportioned against the particular medical specialist or other medical practitioner to the extent that person was responsible for the injury leading to the deceased’s death, reflected that approach.

4. [47]

   Mr Morris submitted this distinction could be understood on the basis of what he contended were fundamental differences between a claim for damages arising from personal injury and an action under the Relatives Act, a distinction recognised by the terms of the Liability Act.

5. [48]

   First, while personal injury may result in, or cause, death, a claim “arising out of personal injury” did not include any rights with respect to death. Rather, death created an entitlement to a separate claim for a different class of persons in a different action. Whereas, a claim for damages arising from personal injury had its roots in the common law, an action for wrongful death was rooted in statute. It was not one for damages suffered by the deceased. Put in the present context, he argued that the respondent’s claim arose out of her mother’s death, not out of her personal injury.

6. [49]

   Secondly, a claim for damages arising from personal injury was brought by the person who suffered the injury and whose own needs must be met by the award of damages sought. In contrast, in a Relatives Act claim, recovery depended only on demonstrating “dependency” or “loss of expectation of pecuniary benefit” of the dependent upon the deceased and the entitlement was apportioned between the dependents and paid to them, rather than distributed through the deceased’s estate.

7. [50]

   Thirdly, in a personal injury claim, damages were assessed at the date of verdict whereas in a Relatives Act claim, they were assessed at the date of death.

8. [51]

   Fourthly, Mr Morris submitted that the historical and legal bifurcation between damages “arising from personal injury” and “death” was replicated throughout the Liability Act. He accepted that Relatives Act claims were caught by provisions of that Act which expressly referred to “death” such as the definition of “harm” in s 5, Pt 1A and the definition of “personal injury damages” in s 11, Pt 2 and s 26A, Pt 2A as “damages that relate to the death of or injury to a person”. He illustrated his proposition by pointing to s 19(1) (Third party contributions) which provides:

9. [52]

   Mr Morris submitted that by making the distinction in s 19 between a claimant entitled to “an award of damages in respect of death or injury”, the legislature clearly contemplated that there were two different species of action: one founded on the common law as modified from time to time by statute; and one which has only a statutory basis, that relating to death being a reference to a Relatives Act claim.

10. [53]

    Finally, a Relatives Act claim crystallised on death. Once the court was satisfied the deceased would have had a claim in negligence if she had survived, personal injury was irrelevant to the dependency action.

11. [54]

    Turning to the primary judgment, Mr Morris first submitted that the primary judge erred in determining (at [11]) that an “essential ingredient” to a Relatives Act claim was that there has been a person who was both injured and died. He contended that this finding overlooked three important matters.

12. [55]

    First, that “personal injury” was not a necessary prerequisite to death by negligence. For example, death may be caused by negligently inflicted disease or infection, or may occur at the same instant that personal injury is caused. Under these circumstances, “if damage is the gist of the action, then there could be no cause of action.”

13. [56]

    Secondly, if both injury and death were essential ingredients, Mr Morris submitted that the term “injury” was used inconsistently in the rest of the Relatives Act. He contended that neither of the references to “injury” in s 3(1) were clear and unambiguous references to personal injury. This ambiguity became particularly evident when regard was had to the term “injury” as used in s 4(1) of the Relatives Act, which deals with who may bring an action and the damages that may be awarded. In that context Mr Morris argued that “injury” refers not to any personal injury, but to the loss and damage suffered by the dependants on whose behalf the plaintiff brings the claim.

14. [57]

    Thirdly, Mr Morris submitted that the primary judge’s finding failed to recognise the well-established bifurcation between common law claims arising out of personal injury and statutory claims brought under the Relatives Act on behalf of surviving dependants.

15. [58]

    Mr Morris argued that the primary judge’s first error had flow on effects that contaminated the balance of his Honour’s reasoning and his ultimate finding.

16. [59]

    Fourthly, Mr Morris contended that the primary judge erred in determining that the words “arising out of” in s 34 of the Liability Act are expansive rather than limiting. He submitted that the authorities the primary judge applied were distinguishable. Furthermore, he argued that the primary judge’s finding that it was unnecessary to consider principles of statutory construction in interpreting the phrase “arising out of” was clearly in error. He contended that in the context of s 34, the words “arising out of”:

17. [60]

    Accordingly, Mr Morris submitted that claims “arising out of” personal injury were limited to a particular class of persons, and differed from claims arising from death. In particular, claims in respect of death arose at the moment of death, not before.

18. [61]

    Next, Mr Morris argued that the wide reading of “arising out of” accepted by the primary judge could have unacceptable consequences. For example, if “arising out of” was taken to mean “connected with”, the exclusion in s 34(1) of the Liability Act could foreseeably not apply to clear claims for economic loss or property damage merely because a plaintiff could point to some connection between that loss and personal injuries suffered. In this scenario, a s 35 defence would be defeated simply because there were concurrent personal injury losses and economic losses arising from the same incident.

Respondent’s submissions

1. [62]

   Mr D E Graham of Senior Counsel, who appeared for the respondent below, and on appeal with Mr A Naylor, submitted that the appellant’s contention that personal injury was not a necessary prerequisite to death by negligence was not raised squarely before the primary judge. If it had been, the respondent may have sought to adduce expert evidence to dispute the submission, as it was a novel medical question whether “death [was] instant in any given case.” He argued that the appellant ought not to be entitled to advance a fresh argument on appeal if that argument “could possibly have been met by calling evidence below”. [29]

2. [63]

   Furthermore, Mr Graham submitted that the appellant’s submission ignored the Agreed Facts upon which the primary judge’s decision was founded on the basis of which there could be no issue that the deceased was injured, then remained brain damaged but alive for approximately 2 months before she died.

3. [64]

   The respondent’s Relatives Act claim was for loss of financial benefit and loss of domestic services occasioned by her mother’s death as a result of injuries caused by the appellant’s admitted negligence. Accordingly, on the agreed facts it was one “arising out of personal injury” within the meaning of that expression in s 34 of the Liability Act.

4. [65]

   Secondly, Mr Graham submitted that the words “arising out of” in s 34(1)(a) had to be considered in the context that they formed part of the phrase “but not including any claim arising out of personal injury”, and thus carved out a category of claims from the proportionate liability provisions contained in Pt 4 of the Liability Act. He argued s 34(1) was not constrained by the definition of “personal injury” in s 5 of the Liability Act, which did not apply to Pt 4. Rather, s 34(1) encompassed any claim that arose out of personal injury suffered by any person, not just the claimant, including claims pursuant to the Relatives Act. He submitted that, had the legislature intended to restrict the s 34(1)(a) exclusion to claimants who had personally suffered personal injury, it was open to the legislature to make that plain in drafting the provision by using the word “for”, rather than using broad words such as “arising out of”.

5. [66]

   In oral submissions, Mr Graham, contended that, by reason of s 5A, Pt 1A, in particular, the definition of “harm” in s 5, s 5 applied to Pt 4. He submitted that, because death has never been viewed as harm in the same sense as personal injury, the s 5 definition made it clear that “death” was included in the umbrella term, “personal injury”. Accordingly, and, having regard to the broad language used, it was unnecessary to refer specifically to death.

6. [67]

   Mr Graham emphasised the generic description “any claim arising out of personal injury” which, he argued, was directed to claims based on certain facts, not on the identification of causes of action. He contended that the appellant’s construction gave the words “arising out of” no work to do.

7. [68]

   Mr Graham submitted that the appellant’s construction of the exclusion would only be open if it read “but not including any action for damages for personal injuries”. In contrast, he argued that reading s 34(1) as embracing claims by different types of claimants which emanated from personal injury to a person, merely required a conventional exercise of statutory construction.

8. [69]

   Finally, Mr Graham submitted it would be anomalous in light of the decision in Taylor, that damages awarded in a Relatives Act claim are “personal injury damages” for the purposes of Pt 2 of the Liability Act, to hold that such claims were to be treated differently for the purposes of Pt 4.

Consideration

1. [70]

   I have earlier set out the basic approach to statutory construction which is text and context focused, the latter including the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. [30]

2. [71]

   As French CJ and Hayne J explained in Certain Lloyd’s Underwriters v Cross, [31] “[t]he context and purpose of a provision are important to its proper construction because … ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ … and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.” [Emphasis in original.]

3. [72]

   The 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. [32]

4. [73]

   In Hunt & Hunt, [33] French CJ, Hayne and Kiefel JJ described the “evident purpose of Pt 4 [of the Liability Act as being] to give effect to a legislative policy that, in respect of certain claims such as those for economic loss or property damage, a defendant should be liable only to the extent of his or her responsibility.”

5. [74]

   This case depends, in part, on differences between the language used in s 34(1)(a) and that which appears elsewhere in the Liability Act. Thus, s 34(1)(a) refers to a “claim arising out of personal injury” whereas the expression “death of or injury to a person” appears in the various definitions of “personal injury damages” and similar iterations of the term in other provisions. [34] There is also the use of the expression “failure to take reasonable care” in s 34(1)(a) as opposed to “failure to exercise reasonable care and skill” in s 5. [35] In my view, the explanation for these linguistic discrepancies is more probably to be found in s 34 (and Pt 4) having its genesis in the Draft Model Provisions devised “for use in more than one statute,” [36] with the balance of the Liability Act, at least as enacted in 2002, having its genesis in the Ipp Report. But even if that is not the explanation, the differences do not, in my view detract from the conclusion that the respondent’s claim is one “arising out of personal injury”.

6. [75]

   It is first necessary to explain the salient features of a Relatives Act claim. This explanation demonstrates that the application of many parts of the Liability Act is integral to the establishment of such a claim.

7. [76]

   The Relatives Act “created a novel and confined statutory cause of action ‘in an area where the common law conferred no right of action at all, namely, where [an] injured person had died’”. [37] It was a remedial Act, “…designed to meet and remedy a class of case of special hardship caused by the operation of the rule actio personalis moritur cum persona in preventing the recovery of damages for injury arising from death.” [38] Mr Graham also submitted that a Relatives Act claim is a derivative action dependent on or secondary to rights of action vested in the deceased immediately before death. Such an action is based upon the death of a person injured by the wrongful act, neglect or default, because it does not lie unless and until the death has occurred. [39]

8. [77]

   In contrast, as the appellant emphasises, claims for damages for personal injury are largely tort based, and find their origins in the development in the eighteenth or nineteenth centuries of the “modern concept of negligence as a separate basis of tort liability.” [40]

9. [78]

   The Relatives Act is concerned to ascribe civil liability for a person’s death to the person whose wrongful act, neglect, or default has caused the death of a person, albeit that the damages recovered are determined by reference to the claimant dependent’s loss, rather than the deceased’s. Relatives Act claims are not a class of civil liability excluded by s 3B of the Liability Act from its operation.

10. [79]

    In Woolworths Ltd v Crotty, [41] Latham CJ explained that the Relatives Act “…deals only with the case of death, not with personal injuries not resulting in death, or with damages for such personal injury, such as pain and suffering, even where death resulted”. Nevertheless, it is “a condition of the right of action that the deceased would have had a right of action, if death had not ensued, to recover damages in respect of the wrongful act, neglect, or default which was the cause of the death” [Emphasis added]. [42]

11. [80]

    The first part of this statement may be thought to give some support to Mr Morris’ submissions, but the second part makes clear the dependency for success of a Relatives Act claim on proving the deceased would have had a cause of action in relation to whatever caused his or her death. Thus, in a Relatives Act claim, the derivative right the claimant “claims ‘through’ the person whose death terminated the right to support which the claimant seeks to replace by an award of damages, and in whom was vested before death the right of action”. [43] The appellant’s contention that a Relatives Act claim arises out of the death, rather than the personal injury suffered before the death fails to take into account the necessity that the claimant establish the rights the deceased would have had in relation to the personal injury which led to his or her death.

12. [81]

    In this case, it was accepted that it was a personal injury suffered by the deceased which led to her death. To succeed in her Relatives Act claim, the respondent will have to establish her mother would have had a right of action, if death had not ensued, to recover damages in respect of that personal injury which was caused by the defendant’s “wrongful act, neglect, or default”.

13. [82]

    Turning to the connections between the Liability Act and a claim under the Relatives Act, I would first observe that it is apparent that the question whether the deceased would have been “entitled ... to maintain an action and recover damages in respect” of the appellant’s wrongful act, neglect, or default is to be determined pursuant to Pt 1A of the Liability Act. This is made clear by s 5A, pursuant to which, Pt 1A applies “to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.” [Emphasis added.] As I have earlier said, in Pt 1A, s 5 “‘harm’ means harm of any kind, including … personal injury or death … [and] economic loss”. Even if a Relatives Act claim does not fall within the former expression, as I explain below, it is a claim for economic loss. [44] Further, s 5T makes it clear that in a Relatives Act claim a court can “have regard to the contributory negligence of the deceased person.” That contributory negligence would be determined in accordance with s 5R which, effectively requires the court to apply s 5B to the exercise.

14. [83]

    As Leeming JA explained in Paul v Cooke, [45]

15. [84]

    Secondly, although the damages recovered in a Relatives Act claim are more limited than those recoverable in an injured plaintiff’s proceedings, at least to the extent they involve loss of expectation of financial support, they are governed by the Liability Act.

16. [85]

    In Taylor v Owners – Strata Plan No 11564 I observed that: [46]

17. [86]

    Accordingly, damages awarded in Relatives Act claims “are compensation for pecuniary loss, the assessment being ‘a hard matter of pounds, shillings and pence’”. [47] They 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. [48] Such claims are clearly claims for economic loss. There appears to be no doubt they could constitute an “action for damages” within s 34(1), as “damages” is defined in s 3 of the Liability Act to include “any form of monetary compensation”.

18. [87]

    However, as was held by the majority in Taylor, s 12(1)(c) in Pt 2 of the Liability Act applies to the calculation of damages in a Relatives Act claim. That is because the damages awarded under such a claim, being “[d]amages awarded under the Relatives Act for the injury occasioned by the death of the deceased” [emphasis added], are personal injury damages within the meaning of s 11. [49]

19. [88]

    Terms such as “arising out of” are relational terms whose meaning ultimately depends upon their statutory context and purpose. [50] 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. [51] As Brennan J said in O’Grady v Northern Queensland Co Ltd: [52]

20. [89]

    Terms such as the term “arising out of” or its synonyms have been held to have a causative element. [53] It is usually not possible to define exhaustively the degree of the causal connection in any given case. Rather, as the many cases dealing with the meaning of the terms “‘arising out of … employment” in workers compensation legislation or “arising out of an accident” in motor vehicle accident legislation indicate, whether the necessary causal connection is established is a question of fact and degree in each case. [54] However, as the primary judge recognised, correctly in my view, the words “arising out of” are well recognised as being of broad import. [55]

21. [90]

    In Paul v Cooke, [56] Leeming JA observed that “different expressions are used within Pt 1A [of the Liability Act] to express relationships of causal connection … ‘caused’, ‘resulted from’ … ‘arising from’ … [and] ‘arising in connection with’”. Approaching the matter on the basis that it is “the habit of a legal draftsman … to eschew synonyms”, [57] his Honour concluded that the “language of ‘resulting from’ or ‘as a result of’ conveys a broader notion of causality than is seen in s 5D” where, it will be recalled, the term “caused” is used. Accepting that reasoning is capable of applying to s 34(1)(a), it can be seen that, prima facie, “arising out of” has a broader meaning than “caused”.

22. [91]

    The question is whether that prima facie conclusion is supported by an analysis of the text, context and the general purpose and policy of s 34(1).

23. [92]

    The starting point is the text of s 34(1). Its function is to identify both matters which are, or are not, “apportionable claims” for the purpose of Pt 4. Subsection (1)(a) addresses what might be described as a potentially wide class of claims, in contrast to the specific claims addressed by s 34(1)(b).

24. [93]

    The first phrase in subsection (1)(a) (inclusionary clause) identifies what is an apportionable claim and, hence, one to which Pt 4 applies. The second phrase in subsection (1)(a) (exclusionary clause) identifies what is not an apportionable claim and, hence, is not one to which Pt 4 applies

25. [94]

    Although the inclusionary clause commences with the indefinite article “a” to describe the nature of the claim, the “claim” has to be one “for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care” [emphasis added]. The word “for” limits the unlimited word “a”. The subject of the “claim” and the “action” in which it is brought are spelt out, although the cause of action the subject of the claim is, prima facie broad, as long as it is one “arising from a failure to take reasonable care”.

26. [95]

    As Basten JA observed in Cassegrain:

27. [96]

    In contrast to the specific language used in the first clause of subsection 34(1)(a), the language of the exclusionary clause is expansive. The intention is that “any claim arising out of personal injury” is not an apportionable claim. It is apparent that there must be a causal relationship between the excluded “claim” and the “personal injury”, such that the former “arises out of” the latter.

28. [97]

    However, the word “any”, in my view, indicates that there is no limit to the nature of the excluded “claim”, as long as it is one “arising out of personal injury” which, for the reasons I have given, a Relatives Act claim clearly is. By way of reminder, determining the Relatives Act claim will require determining whether the deceased would have been able to maintain an action and recover damages in respect of the wrongful act etc which led to her death. [58] Nor does the exclusionary phrase require that the excluded claim be brought only by the person who has suffered the personal injury.

29. [98]

    Such a construction is consistent with the context in which s 34(1)(a) appears. As I have said while the damages awarded in a Relatives Act claim are “personal injury damages” for the purposes of Pt 2 of the Liability Act, it would be incongruous to hold that a claim for such damages did not, at least, arise “out of” personal injury. Indeed, it would create a discordance in the Liability Act, the logic for which is not readily apparent. [59]

30. [99]

    Further, accepting that historical considerations cannot displace the text, the Ipp Report expressly recommended that the doctrine of solidary liability should be retained in relation to claims for negligently-caused personal injury and death. That was relevant extrinsic material to which the primary judge was entitled, but not obliged, to have regard to determine the meaning of the provision. [60] The third ground of appeal should be rejected.

31. [100]

    Finally, I would observe that the legislative history of the insertion of Pt 4 into the Liability Act explains, in my view, what the appellant sought to rely upon as absent from Pt 4, being the historical and legal bifurcation between claims for personal injury and death. The reference only to “personal injury” was taken from the Draft Model Provisions prepared to implement the Davis Report. Save incidentally, [61] the Davis Report made no reference to “personal injury” claims, for the reason, as I have explained, that such inquiry was excluded from its terms of reference. For more abundant caution, I should point out that the Davis Report did not address Relatives Act claims either. Its recommendations concerned only proportionate liability in “actions for negligence causing property damage or purely economic loss”. [62]

32. [101]

    Accordingly, the primary judge did not err in finding that Pt 4 of the Liability Act does not apply to an action brought pursuant to s 3(1) of the Relatives Act, nor in finding that a claim brought pursuant to s 3(1) of the Relatives Act is a claim arising out of personal injury for the purposes of s 34(1) of the Liability Act. It is not necessary to consider the appellant’s adequacy of reasons ground of appeal or the second paragraph of the respondent’s notice of contention.

Orders

1. [102]

   I would make the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Direct the appellant to file the notice of appeal in the form of the draft in the White Book within 7 days.

   3. (3)

      Appeal dismissed with costs.

2. [103]

   GLEESON JA: The issue raised by this appeal is whether a claim for damages by a relative of a deceased person under the Compensation to Relatives Act 1897 (NSW) (the Compensation Act) is an “apportionable claim” for the purposes of the Civil Liability Act 2002 (NSW) (the Liability Act). For the reasons given by McColl JA, I agree that this question should be answered no.

3. [104]

   Without detracting from her Honour’s reasons, I would add the following brief comments on the appellant’s contention that since the respondent/plaintiff’s claim under the Compensation Act does not arise out of any personal injury suffered by the plaintiff herself, the claim does not answer the description in s 34(1)(a) of the Liability Act of “a claim arising out of personal injury”.

4. [105]

   The appellant emphasised that it was only the plaintiff’s mother who suffered a personal injury. So much can be accepted. Importantly however, the appellant accepted that the plaintiff’s mother was a person injured and that injury led to her death (AT 2, lines 5-8).

5. [106]

   The definition of an “apportionable claim” is found in s 34 of the Liability Act; the full terms of this provision are set out at [33] of the reasons of McColl JA. Section 34(1)(a) relevantly provides that Part 4 (Proportionate Liability) of the Liability Act applies to:

6. [107]

   As McColl JA explains, s 34(1)(a) contains two parts – the first being an inclusionary clause identifying what is an apportionable claim and the second being an exclusionary clause identifying what is not an apportionable claim. The second is obviously a sub-set of the first. There is no warrant to read the exclusionary clause in s 34(1)(a) as only operating (as the appellant suggested) if its subject matter is a personal injury claim by the plaintiff herself. The appellant’s preferred construction ignores the following matters.

7. [108]

   First, the word “claim” is used in s 34(1)(a) in its primary sense of a demand for something as due, an assertion of right to something, and includes a claim under statute. A statutory claim is expressly contemplated by the phrase in parentheses “(whether in contract, or tort or otherwise)”, which is used to identify the class of claims the subject of the inclusionary clause in s 34(1)(a). Plainly, the exclusionary clause contemplates statutory claims “arising out of personal injury”.

8. [109]

   Second, the identification of those “claims” which answer the description of excluded claims in s 34(1)(a) is broadly expressed by the use of the language “any” in reference to excluded claims and is reinforced contextually by the use of the relational phrase “arising out of”.

9. [110]

   It is well established that such a relational phrase embodies a causal relationship between the “claim” and the “personal injury” the subject of the exclusion clause. But importantly, as McColl JA points out, the causal relationship is not limited to “a” claim “arising out of personal injury”. If it did, that might have provided some support for the appellant’s preferred construction that the reference to “claim” in the exclusionary clause is to be read narrowly as embracing only “a” claim for personal injury suffered by the plaintiff. However, the exclusionary clause in s 34(1)(a) is directed to a wider class of claims being “any” claim within the inclusionary clause that answers the description “arising out of personal injury”. That language does not require the excluded “claim” to arise out of the plaintiff’s own personal injury.

10. [111]

    Third, it has been said that a claim arises out of a matter, if it originates in, springs from, or has its foundation, in that matter: cf Walton v National Employers’ Mutual General Insurance Association [1973] 2 NSWLR 73 at [84], in the context of construction of an exclusion clause in an indemnity policy. In the present case, a claim for damages by the plaintiff under the Compensation Act can be said to arise out of personal injury in that it is a condition of the plaintiff’s right of action that the deceased would have had a right of action, if death had not ensued, to recover damages in respect of the wrongful act, neglect, or default which was the cause of the death: see the remarks of Latham CJ in Woolworths Ltd v Crotty (1942) 66 CLR 603 at 618; [1942] HCA 35, set out in the reasons of McColl JA at [79]. In that sense, that the wrongful act, neglect, or default of the appellant/defendant would have entitled the deceased to recover damages in respect of her personal injury, if death had not ensued, is one of the underlying facts that the plaintiff must prove, together with the facts supporting her dependency on the deceased, to justify the plaintiff’s claim under the Compensation Act.

11. [112]

    I agree with the orders proposed by McColl JA.

12. [113]

    EMMETT AJA: These proceedings are concerned with Part 4 of the Civil Liability Act 2002 (NSW) (the Liability Act), which deals with proportionate liability. Section 35(1) of the Liability Act, which is in Part 4, relevantly provides that, in proceedings involving certain claims, the liability of a defendant who is a concurrent wrongdoer in relation to such claims is limited to an amount reflecting the proportion of damage or loss claimed that the court considers just, having regard to the extent of the defendant’s responsibility for the damage or loss. In such proceedings, the court may give judgment against the defendant for not more than that amount. A concurrent wrongdoer, in relation to a claim under Part 4, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim. [63]

13. [114]

    Section 35 applies only to claims that are apportionable claims within the meaning of s 34 of the Liability Act. Apportionable claims are claims for economic loss or damage to property in an action for damages arising from a failure to take reasonable care. However a, “claim arising out of personal injury” is not an apportionable claim.

14. [115]

    The question in the proceedings in this Court is whether a claim under s 3 of the Compensation to Relatives Act 1897 (NSW) (the Compensation Act) is an apportionable claim for the purposes of the Liability Act. Under that provision, where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such as would have entitled the person injured to maintain an action and recover damages if the person injured had not died, the person who would have been liable, if death had not ensued, is to be liable to an action for damages, notwithstanding the death of the person injured. Such an action is for the benefit of certain relatives of the deceased person, including children. However, not more than one action is to lie for and in respect of the same subject matter of complaint. [64]

15. [116]

    The applicant, Dr Mohammad Shinwari, was employed by a clinic that offered rapid opiate detoxification services for the treatment of opiate addiction. On 29 September 2010, Dr Shinwari treated Ms Grace Yates (the Deceased), who suffered cardiac arrest following the treatment. Later on that day, the Deceased was admitted to Royal Prince Alfred Hospital, where she died on 30 November 2010.

16. [117]

    Ms Tobei Anjoul (the plaintiff) is the infant daughter of the Deceased and proceedings were brought on her behalf under the Compensation Act for recovery of damages from Dr Shinwari in respect of the death of the Deceased. Dr Shinwari filed a defence admitting breach of duty. However, he also pleaded in his defence that the plaintiff’s claim was an apportionable claim under the Liability Act. He named three other alleged concurrent wrongdoers.

17. [118]

    On 29 September 2015, a judge of the Common Law Division (the primary judge) ordered that there be decided separately from, and before any trial in the proceedings, the question of whether Part 4 of the Liability Act applied to the plaintiff’s claim under the Compensation Act. The primary judge concluded that Part 4 of the Liability Act does not apply to the plaintiff’s claim under the Compensation Act because it is a claim arising out of personal injury, namely, the personal injury occasioned to the Deceased by Dr Shinwari’s treatment of her on 29 September 2010. His Honour accepted the submission on behalf of the plaintiff that the words “arising out of” are words of broad import and are inconsistent with the contention advanced on behalf of Dr Shinwari, to the effect that the only claims that are apportionable claims are claims “for” personal injury. His Honour therefore struck out those parts of Dr Shinwari’s defence that raised s 35 of the Liability Act.

18. [119]

    By summons dated 26 October 2015, Dr Shinwari seeks leave to appeal from the orders made by the primary judge. By his draft notice of appeal, he asserts that the primary judge erred in law in finding that Part 4 does not apply to the plaintiff’s action brought under the Compensation Act and that such an action is a claim arising out of personal injury for the purposes of s 34 of the Liability Act. The plaintiff makes no claim arising out of personal injury to herself. Rather, her claim arises out of personal injury to the Deceased. Thus, the question is whether the reference to “personal injury” in the definition of apportionable claim in s 34 of the Liability Act is a reference only to personal injury suffered by the person who makes the claim.

19. [120]

    Dr Shinwari contended that the primary judge erred in concluding:

20. [121]

    Section 3B of the Liability Act states that its provisions do not apply to or in respect of civil liability of certain kinds including, relevantly, “civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death” and “civil liability relating to an award of personal injury damages (within the meaning of Part 2) where the injury or death concerned resulted from smoking or other use of tobacco products” [emphasis added]. That suggests a distinction in the Liability Act between “injury”, on the one hand, and “death”, on the other. To hold that all deaths creating liability under the Compensation Act must by necessity include an element of “personal injury” and thereby arise from personal injury, for the purposes of s 34 of the Liability Act, would ignore that distinction.

21. [122]

    Further, it is arguable that neither of the references to “injury” in s 3 of the Compensation Act is a clear and unambiguous reference to personal injury when the Compensation Act is read as a whole. Thus, the term “injury” is also used in s 4(1), which specifies the persons who may bring an action and the damages that may be awarded. In s 4, the term “injury” clearly refers, not to any personal injury, but to the loss and damage suffered by the dependants on whose behalf a claim is brought.

22. [123]

    In addition, a distinction can be drawn between common law claims, arising out of personal injury, and statutory claims under the Compensation Act and its equivalents. A claim for damages arising from personal injury has its roots in the common law, whereas an action for wrongful death is based entirely on statute. An action for damages arising from personal injury is brought by the person who suffers the injury, who may establish special damages or ordinary damages. On the other hand, in an action under the Compensation Act, dependency on the deceased person and loss of expectation of pecuniary benefit must be demonstrated. The amount awarded is then apportioned between the dependants and is payable to them direct, and is not distributed through the estate of the deceased person.

23. [124]

    Thus, an action under the Compensation Act is not for damages sustained by the deceased person but for damages sustained by those who had the requisite expectation of pecuniary benefit based on the economic capacity or domestic services provided by the deceased person to that claimant at the time of death. The beneficiary suffers pecuniary loss but no personal injury. A common law action for damages arising from personal injury involves the assessment of damages as at the date of verdict or judgment. An action under the Compensation Act requires assessment of dependency or expectation of pecuniary benefit as at the date of death.

24. [125]

    Finally, the Compensation Act recognises the historical and legal bifurcation between damages arising from personal injury and damages arising from death. Thus, there is no common law action available to a husband for the loss of domestic services provided to the family by his wife. On the other hand, such a claim is not prohibited in a claim under the Compensation Act.

25. [126]

    The reasons outlined above, which are the reasons advanced on behalf of Dr Shinwari, are somewhat compelling. However, on balance, I consider that they should be rejected. I have now had the opportunity of considering in draft form the proposed reasons of McColl JA. I agree, for the reasons, proposed by her Honour, that the primary judge did not err in concluding that Pt 4 of the Liability Act does not apply to an action brought under s 3(1) of the Compensation Act and that a claim brought under s 3(1) of the Compensation Act is a claim arising out of personal injury for the purpose of s 34(1) of the Liability Act. I agree with the orders proposed by McColl JA.