Fitzpatrick v Lifetime Support Authority

Case [2019] SASCFC 97

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Application for Judicial Review)

FITZPATRICK v LIFETIME SUPPORT AUTHORITY & ANOR

[2019] SASCFC 97

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)

9 August 2019

ADMINISTRATIVE LAW - JUDICIAL REVIEW

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND PROVISIONS - PRESERVATION OF RIGHTS, LIABILITIES AND LEGAL PROCEEDINGS ON AMENDMENT, REPEAL, LAPSING ETC OF ACT OR PROVISION

STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF ACTS - RETROSPECTIVE OPERATION

Application for judicial review of a decision by the Lifetime Support Authority (the Authority) to accept the plaintiff as a member of the Lifetime Support Scheme (the LSS) established by the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 (SA) (the LSS Act).

The LSS Act, which came into operation on 1 July 2014, provides for the participation of persons suffering catastrophic injury in a motor vehicle accident in South Australia in the LSS. The LSS provides a scheme for the future care of such persons. The LSS Act provides that a person can become a participant in the LSS against their will.

At the time the LSS Act was enacted the Civil Liability Act 1936 (SA) (the CLA) was amended by the insertion of s 58A. Section 58A provides that a person who is a participant in the LSS is precluded from recovering damages for their past or future treatment, care and support needs in a common law action for damages for injuries suffered in a motor vehicle accident in South Australia.

The plaintiff was significantly injured in a motor vehicle accident which occurred on 16 November 2014. At that time, the plaintiff was not eligible to become a participant in the LSS under the Lifetime Support Scheme Rules 2014 (SA) (the 2014 Rules).   Under the 2015 iteration of those rules the plaintiff remained ineligible. Under the Lifetime Support Scheme Rules 2017 (SA) (the 2017 Rules) a person with injuries of the kind suffered by the plaintiff was eligible.  

On 13 July 2016 the plaintiff commenced proceedings against the driver of the other vehicle involved in the motor vehicle accident seeking declaratory relief and damages in negligence.  On 20 March 2018 the plaintiff was accepted as a participant of the LSS.

On review, the plaintiff seeks an order for certiorari quashing the decision of the Authority accepting her as a member of the LSS, and a declaration by the Court that she is not a member of the LSS and the eligibility criteria contained in the 2017 Rules do not apply in respect of her. The plaintiff also seeks her costs of the action. 

The plaintiff relies on s 16(1)(c), (d) and (e) of the Acts Interpretation Act 1915 (SA) (AIA) and common law presumptions concerning interference with accrued rights, existing legal proceedings and remedies, and the alienation and interference with property.

Held, per Stanley J (Kourakis CJ and Peek J agreeing):

1.  At time the 2017 Rules…

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Fitzpatrick v Lifetime Support Authority [2019] SASCFC 97
Case
[2019] SASCFC 97
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CaseChat Overview and Summary

In *Fitzpatrick v Lifetime Support Authority*, the Full Court of the Supreme Court of South Australia considered whether amendments to the Lifetime Support Scheme (LSS) and related legislation retrospectively affected a plaintiff's accrued rights. The plaintiff sought to claim damages for the cost of future care, a head of damage that was subsequently precluded by the amended rules.

The central legal issue before the court was whether the plaintiff possessed an accrued right to damages for future care at the time the amending rules came into effect, and if so, whether the amending legislation evinced a clear intention to displace the common law and statutory presumptions against retrospective operation. The plaintiff argued that the commencement of the 2017 Rules abrogated an established right to claim damages for future care costs, invoking provisions of the *Acts Interpretation Act 1915* (SA) and common law principles.

The court reasoned that the plaintiff had not accrued any right to an award of damages for the costs of future care at the time the 2017 Rules were promulgated. It held that this head of damage inherently depended on future events and transactions, and therefore, the application of the 2017 Rules and section 58A of the *Civil Liability Act 2002* (SA) only had the potential to affect claims for costs yet to be incurred. The court found that no accrued right to damages for past losses was affected, and in any event, there was a clear contrary intention within the legislation. Consequently, the common law presumption against retrospective operation, as enshrined in section 16(1)(c) of the *Acts Interpretation Act 1915* (SA) and the principle in *Maxwell v Murphy*, did not operate to preserve the plaintiff's claim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that a purposive construction supports the textual analysis considered in the statutory context of the LSS. Do the presumptions enshrined in s 16 of the AIA and the common law compel a contrary conclusion? The plaintiff seeks to invoke the presumptions contained in each of s 16(1)(c), (d) and (e) of the AIA, together with a range of closely related and overlapping common law presumptions of statutory construction. A consideration of each of the presumptions relied upon by the plaintiff demonstrate that they can be distilled to two substantive issues: first, whether the commencement of the 2017 Rules relevantly affected any accrued right of the plaintiff; and, second, if so, whether the prima facie preservation of that right has been displaced by a contrary intention in the 2017 Rules, the LSS Act or s 58A of the CLA. As I have explained earlier in these reasons, the general rule of the common law, enshrined in s 16 of the AIA, is that an amending or appealing Act ought not, unless the statute clearly evinces a contrary intention, apply to facts or events that have already occurred so as to affect accrued rights or liabilities which the law had fixed by reference to past events. At issue is whether by reason of the plaintiff suffering injury, or commencing an action for damages in respect of her loss as a result of that injury, she had accrued any right of the kind protected by the common law or s 16. The right claimed by the plaintiff is a right to damages of the kind precluded by s 58A, namely, an entitlement to damages for the cost of future care. The plaintiff contends that the effect of applying the 2017 Rules would be to destroy or abrogate an “accrued, acquired, established and/or exercisable right” she enjoys to damages in respect of the head of damages that is the subject of s 58A. In this way she seeks to invoke s 16(1)(c) of the AIA. Framing the submission that way does not add anything further to the question of whether the plaintiff had an accrued right that was affected by the application of the 2017 Rules to her. In my view, the submission fails in limine. As at 30 May 2017 when the 2017 Rules were promulgated the plaintiff had not accrued any right to an award of damages at common law for the costs of her future care. That head of damage necessarily rested on future events or transactions. The application of the eligibility criteria in the 2017 Rules to the plaintiff only had the potential to affect her claim to be compensated for costs yet to be incurred. The application of the 2017 Rules and s 58A to her claim for damages did not affect any right to damages for past losses which had been incurred. There was no accrued right that was affected and, in any event, there was an evident contrary intention. The plaintiff also seeks to invoke the common law presumption in Maxwell v Murphy.[32] However, that does not advance the plaintiff’s submission. Section 16(1)(c) enshrines that common law presumption.[33] If s 16(1)(c) does not operate to preserve the plaintiff’s “right” to pursue a claim for damages under the head of the costs of future care neither can the common law presumption in Maxwell v Murphy.[32] [1957] HCA 7, (1957) 96 CLR 261 at 267; Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] HCA 40, (1959) 101 CLR 296 at 637-638.[33] ADCO Constructions Pty Ltd v Goudappell [2014] HCA 18 at [27], (2014) 254 CLR 1 at 15; Diakou Nominees Pty Ltd v Gouger Street Pty Ltd [2017] SASC 72 at [35].

Ratio Decidendi

Legal Principle Established

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