Mathew Chaina v The Presbyterian Church (NSW) Property Trust and 15 Ors - [2007] NSWSC 353

No judgment structure available for this case.

Reported Decision:
69 NSWLR 533
(2007) Aust Torts Reports 81-882

New South Wales

Supreme Court

CITATION: Mathew Chaina v The Presbyterian Church (NSW) Property Trust and 15 Ors [2007] NSWSC 353

HEARING DATE(S): 19/03/2007

JUDGMENT DATE :
19 April 2007

JUDGMENT OF: Howie J at 1

DECISION: The questions should be answered - 1. Yes; 2. No; 3. Yes but not section 12.

CATCHWORDS: Statutory construction - Civil Liability Act - whether Part 2 applies to limit damages on a claim per quod servitium amisit.

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 - Rule 28.2
Civil Liability Act 2002 (NSW)
Motor Accidents Act (now repealed)
Motor Accidents Compensation Act 1999 - ss 12(3), 125, 142
Employees Liability Act 1991 - s 4
Civil Liability Act 2003 (Qld) - s 58
Interpretation Act 1987 - s 33

CASES CITED: Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392
GIO Australia v Robson (1997) 42 NSWLR 439
Landon v Ferguson (2005) 64 NSWLR 131
Empire Shipping Co. v Owners of Ship "Shin Kobe Maru" (1991) 104 ALR 289
State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412
Kenbrad Pty Limited v Vakauta [2001] NSWCCA 204
Coco v The Queen (1994) 179 CLR 427
Thomson v Australian Capital Television Pty Limited (1994) 54 FCR 513
R v Janceski [2005] 64 NSWLR 10
Kaplantzi v Pascoe [2003] NSWCA 386

PARTIES: Mathew Chaina v The Presbyterian Church (NSW) Property Trust and 15 Ors

FILE NUMBER(S): SC 020472/02

COUNSEL: P. Garling SC, A. Bell SC, J. Stephenson - Plaintiff
R. Stitt QC, G.L. Turner - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

THURSDAY 19 APRIL 2007
20472/02 MATHEW CHAINA v THE PRESBYTERIAN

CHURCH (NSW) PROPERTY TRUST AND 15
ORS

JUDGMENT
Background

1 HIS HONOUR: These proceedings arise from the death of a schoolboy who drowned while attending a school camp for a weekend in October 1999. It is unnecessary to say more about the particulars of the plaintiffs’ claims in order to determine the Notice of Motion before me but I note that the defendants admit liability.

2 The first to third and sixth plaintiffs are the deceased’s two brothers, his father and mother. The fourth and fifth plaintiffs (“the company plaintiffs”) are family companies operated by the father and mother who are the directors and sole shareholders of the two companies. The sixteen defendants were all involved in the running of the school or the camp at the relevant time.

3 The deceased’s parents claim damages as a result of nervous shock or psychiatric injury occasioned by the death of their son. This is a claim for personal injury as a result of the negligence of one or more of the defendants. The company plaintiffs claim for loss of the services of the parents as principals, directors and managers of the businesses they ran as a result of the injuries suffered by the parents. The companies allege past and future economic loss, for example by way of a decline in business and the resultant loss in profits. This is a claim for loss per quod servitium amisit. It relates to the loss to an employer, the plaintiff in the cause of action, of the services of an employee occasioned by the injury suffered by the employee as a result of the tortious conduct of the defendant to the employee. The action of the employer is, therefore, derivative.

4 The proceedings come before me by consent orders made on 7 December 2006. The motion entails the determination of issues separately before the trial in the proceedings pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005. The motion relates only to the company plaintiffs. The issue for determination is set out in three questions as follows:

1. But for the Civil Liability Act 2002 (NSW) does the Fourth and Fifth Plaintiffs’ cause of action “per quod servitium amisit”, on the facts pleaded, exist?

2. If 1 is answered yes, was the cause of action abolished by the Civil Liability Act 2002 (NSW) ?

Civil Liability Act 2002 (NSW)

5 Mr Stitt QC with Mr Turner appeared for the defendants, the applicants in the motion. Mr Garling SC with Mr Bell SC and Mr Stephenson appeared for the plaintiffs.

6 Mr Stitt did not suggest that I find otherwise than that the answer to Question 1 is “yes”. He conceded that there is authority binding on me that requires that answer: see Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392 and GIO Australia v Robson (1997) 42 NSWLR 439. Similarly he did not suggest that I should answer Question 2 other than by “no”. The real issue litigated before me is whether I find, on the true construction of the relevant provisions of the Civil Liability Act 2002 (the Act), that a claim such as that made by the company plaintiffs is limited in the way that a claim for damages for personal injuries made by a personal plaintiff is limited by the provisions of the Act.

7 The question arises because there is no direct reference to an action per quod servitium amisit in any of the provisions of the Act. This is in contrast to the provisions of two other statutes in this State that limit the liability of a defendant, or potential defendant, for damages. The Employees Liability Act 1991 contains the following provision:

4 Abolition of action against employee for loss of services of fellow employee (per quod servitium amisit)

Motor Accidents Compensation Act

142 Damages for the loss of services

8 Had the deceased been killed in a motor vehicle accident on his way to the camp, the company plaintiffs could receive no compensation for loss as a result of any nervous shock suffered by his parents. Yet they submit that they can make a claim seeking damages, as I understand it, of over $300 million because the child died at the camp. This is notwithstanding that provisions of the Act limit the damages that can be awarded to the personal plaintiffs, here the parents and the two brothers of the deceased.

9 This situation seems on its face to be anomalous and unfair. Why should a company be able to recover full compensation for economic loss resulting indirectly from personal injuries suffered by an employee, yet the employee who has actually suffered the injuries be unable to recover full compensation for the loss arising directly from the injuries? However, if this is the result that follows upon a proper construction of the relevant provisions, then so be it. Anomalies in this area of the law are not unusual. In Landon v Ferguson (2005) 64 NSWLR 131 Ipp JA stated at (135):

10 The Act was assented to on 18 June 2003 but by virtue of s 2 of the Act it is taken to have commenced on 20 March 2002. Part 2 of the Act is entitled “Personal injury damages”. It applies where proceedings were commenced after 20 March 2002 regardless of whether the injury or death occurred before or after that date: see Schedule 1, clause 2 of the Act. Therefore, if Part 2 has application to the company plaintiffs’ cause of action, it applies to the current proceedings that were commenced by the company plaintiffs on 23 October 2002.

11 The relevant definitions of terms used in the Act as a whole are found in s 3 in Part 1 of the Act. This section defines “damages” for the purposes of the Act as follows:

"damages" includes any form of monetary compensation but does not include:

(a) any payment authorised or required to be made under a State industrial instrument, or
(b) any payment authorised or required to be made under a superannuation scheme, or
(c) any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy.

12 There are definitions that are applicable to Part 2 of the Act set out in s 11. That section is as follows:

In this Part:

"injury" means personal injury and includes the following:

(a) pre-natal injury,
(b) impairment of a person's physical or mental condition,
(c) disease.

13 Section 11A of the Act relates to the applicability of Part 2 of the Act and provides:

14 Sections 11 and 11A comprise Division 1 of Part 2 of the Act. Division 2 of Part 2 is entitled “Fixing damages for economic loss”. Section 12 is headed “Damages for past or future economic loss – maximum for loss of earnings etc”. Section 13 is headed “Future economic loss – claimant’s prospects and adjustments”. Section 14 is headed “Damages for future economic loss – discount rate”. The Division also contains provisions relating to damages for “attendant care services”, damages for “loss of capacity to provide domestic services” and damages for “loss of superannuation benefits”. Division 4 of Part 2 is entitled “Interest on damages” and contains only one provision, s 18.

15 It is unnecessary to lengthen this judgment by setting out the provisions that would affect the company plaintiffs’ damages if their cause of action fell within the umbrella of the Act. However the defendants contend that ss 12, 13, 14 and 18 would cap the damages that they could recover in the event of their claim being successful. In order to understand their submissions it is convenient to consider s 12. It is as follows:

16 Section 12 applies to “an award of damages”. “Damages” includes “any form of monetary compensation”; see s 3. By reason of s 11A, Part 2 of the Act “applies to and in respect of an award of personal injury damages”. By reason of s 11, “personal injury damages” means “damages that relate to the death or injury of a person”. “Injury” means “personal injury” and includes “(b) impairment of a person's physical or mental condition”: see s 11. Therefore, s 12 applies to an award of monetary compensation that relates to the impairment of a person’s physical or mental condition.

17 The defendants’ argument runs as follows. If a cause of action would result in an award of monetary compensation that relates to the impairment of a person’s physical or mental condition, Part 2 applies and a court is prevented from making an award of compensation contrary to the Part: see s 11A(3). Therefore, compensation is to be determined, so far as economic loss is concerned, in accordance with s 12. The compensation is limited by s 12(2) to an amount not exceeding “3 times the amount of average weekly earnings at the date of the award” determined in accordance with s 12(3).

18 As I have already indicated, there is no reference anywhere in the Act to a cause of action quod servitium amisit. The defendants seek to bring such a claim within the ambit of Part 2 by the use of the words “relates to” in the definition of “personal injury damages” so that the damages caught by Part 2 “relate to the death or injury to a person”. They note that the word “relate” has a wide meaning in general parlance so that the damages have an association with, a connection with or a reference to the death or injury of a person. It should be noted that the provisions does not use the term “award for the death or injury”, see Empire Shipping Co v Owners of Ship “Shin Kobe Maru” (1991) 104 ALR 289 at 505 as to the wider meaning to be attributed to the use of the word “relate” than to the use of the word “for”, but cf State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412 where the word “for” in the phrase “for accidental bodily injury” was construed as meaning “in respect of”.

19 The defendants referred to cases where the terms of provisions in both statutes and insurance policies have been construed in a manner consistent with that being urged by them. So in GIO Australia v Robson (1997) 42 NSWLR 439 it was held that a compulsory third party insurance policy providing cover against “liability in respect of the death or injury to a person” caused by the fault of a driver included liability to an injured person’s employer under a claim for loss of services. One of the reasons given by Mason P for this interpretation was that it “gives to the words ‘in respect of’…….their well established amplitude” (at 441). In Kenbrad Pty Limited v Vakauta [2001] NSWCCA 204, concerning the now repealed Motor Accidents Act, it was held that a time limit provision applied to a claim per quod servitium amisit notwithstanding that there was no reference to such a claim in the Act. This was because a “claim for damages in respect of the death of or injury to a person” included a claim for loss of services.

20 One of the reasons given by Hodgson JA, with whom the other members of the Court agreed, for reading the provision considered in Kenbrad P/L v Vakauta to cover a claim for loss of services was that it promoted the objects of the Act including the early investigation and assessment of claims arising from motor vehicle accidents. The defendants here similarly refer to the objects of the Act and submit that reading the provisions of Part 2 as embracing the company plaintiffs’ claim would promote them.

21 The long title of the Act is:

Legal Profession Act 1987

22 It was submitted that the Act was intended to apply generally to claims for compensation arising from the wrongful death or injury of a person regardless of the nature of the proceedings seeking that compensation. It is submitted that this is the clear intention of the Act because s 3B specifically exempts those areas of claims for compensation in relation to death or personal injury that are not to be caught by the provisions of the Act in whole or in part. Further and in particular, the provisions of Part 2 apply “to and in respect of an award of personal damages” unless excluded by s 3B and “regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise”: s 11A(1) and (2).

Plaintiffs’ answers

23 In answer the plaintiff’s rely upon the fact that the Act says nothing about a claim per quod servitium amisit yet argue that, if it had been the intention of the Parliament to bring about the consequence sought by the defendants, it could easily have done so. They point to the fact that it had been made perfectly clear in the Motor Accidents Compensation Act and the Employees Liability Act that this type of claim had been extinguished under those Acts. Had the Legislature intended to cap or limit claims for loss of service, it knew how to do so.

24 Further, it had an example of what needed to be done in legislation in Queensland that had some similarities with the provisions of the Act. Section 58 Civil Liability Act 2003(QLD) provides:

(2) The court must not assess damages for loss of servitium above the limit fixed by subsection (3).

25 The Queensland Act contains the same definition of “personal injury damages” as found in the New South Wales Act and yet there the legislature made express provision to cap the damages for loss of services. However this Act postdates the first version of the New South Wales Act.

26 The plaintiffs stress the rule of construction that, before a provision will be taken as interfering with a common law right, there should be clear language indicating that intention. Such an intention may be displaced where without it, the provision would be inoperative or meaningless: Coco v The Queen (1994) 179 CLR 427 at 438. The plaintiffs note that s 12 of the Act has plenty of work to do even if it did not apply to actions for loss of services. It was stressed that, even where the intention of parliament to interfere with common law rights can be clearly seen, it will be presumed that the interference was only so far as was necessary to address the particular mischief with which the provision is concerned: Thomson v Australian Capital Television Pty Limited (1994) 54 FCR 513 at 526.

27 The plaintiffs argue that a claim based upon an action per quod servitium amisit is not one “in respect of damages that relate to the death or injury to a person” so that Part 2 is not engaged. It was submitted that the claim is one for damages that “relate to the loss by the corporation of the services of a particular employee”. The critical question in assessing the damages is the worth of the services to the corporation and this is not a function of the employee’s earnings. The distinction is between the ability of the employee to earn a salary and the ability of the employee to earn profits for the corporation. In this regard a distinction is also drawn between the words used in the Act, being damages “in respect of death or injury”, and those used in the policy considered in GIO Australia v Robson, being damages “for liability in respect of the death or injury to a person”.

28 Further, a claim per quod servitium amisit can only be raised in respect of the injury to, and not the death, of an employee. Therefore, it is argued that, as “personal injury damages” for the purposes of Part 2 relate to the death or injury of a person, damages for loss of services cannot fall within that definition.

29 It was submitted by the plaintiffs that, even if it were found that loss of services could fall within the definition of “personal injury damages”, s 12 could have no application. This, so it was argued, is because the focus of the section is on the loss of the earning capacity of the person who is dead or injured, and not on the economic value of the services rendered to the plaintiff company or the loss actually sustained through the loss of services. It was submitted that the section only operates in relation to the damages recoverable by the person actually injured or recoverable in respect of a deceased person. The company plaintiffs are not injured and, therefore, so it is argued, the section is inapt to apply to their claim. Further it is inappropriate to refer to a company as having “gross weekly earnings”. Those are words that relate to an employee not an employer, and especially not a company employer.

30 Further, it was submitted that the calculus by which the limitation is determined under s 12 is inappropriate to be used in relation to a claim for loss of services being based as it is upon the total earnings of “all employees” in the State. The plaintiffs point to the distinction between the scheme under s 12(3) and s 125 of the Motor Accidents Compensation Act where the “net weekly earnings” of the injured or deceased person are limited to a specific amount of $2,500. They also point to the difference between a reference under that Act to the net weekly earnings of the injured or deceased person whereas under the Act it is a reference to the gross weekly earnings of the claimant.

31 The plaintiffs also point to s 15C of the Act that deals with loss of superannuation entitlements as indicating that the Part is concerned with injuries or death to employees rather than to the loss to the employer occasioned by injuries suffered by an employee.

32 Put succinctly the plaintiffs argue that Part 2 does not obviously include compensation by way of lost services but rather the language and concepts used in the Act are inappropriate to determine the damages suffered by the companies in respect of the lost services of an employee. Therefore, rather than the intention of the Parliament being plainly to cap damages for loss of services, the language used in Part 2 is inconsistent with such an intention.

Determination

33 During the course of argument I raised with Mr Garling the possible policy that might have been behind the Parliament determining in effect to exempt actions per quod servitium amisit from the ambit of Part 2. I appreciate that this is not a decisive consideration but, if there were a clear policy that might account for a decision not to bring such a claim within the ambit of the Act, and Part 2 in particular, that might give confidence in an interpretation of the provisions of the Act that produces such a result. The only possible reason that senior counsel for the plaintiffs could give was the relative rarity of such proceedings. With respect this is not convincing.

34 The defendants took me to the second reading speech of the Premier when introducing the bill as an aid in pursuing a purposive approach to the interpretation of the relevant provisions: see s 33 of the Interpretation Act 1987. On 28 May 2002 the Premier introduced the bill as follows (my underlining):

On 7 May I released a consultation draft of the Government's Civil Liability Bill. Today, after three weeks of consultation, I introduce the Civil Liability Bill. The bill will implement stage one of the Government's tort law reforms. Three weeks ago I was in no doubt that these reforms were vital to the survival of our community. I have heard and seen the damage that the public liability crisis is doing to our sporting and cultural activities, small businesses and tourism operators, and our local communities. On 7 May no further evidence was required. However, we have had more evidence, such as the damages award against Waverley Council and news today that local councils across the State face a 35 per cent rise in insurance premiums from 1 July.

Since I released the consultation draft of the bill I have met with many local government and community representatives. They have told me that the approach of the courts to public liability is unsustainable, and the Government agrees with them. We need to protect our beaches and parks. We need our roads and schools to operate free from unrealistic standards-standards imposed by the courts with hindsight and with no regard for the cost to the community.

This bill implements stage one of the Government's tort law reform program. I will introduce stage two of the Governments tort law reform program next session……………………….

The reforms that I am introducing today in stage one are tried and tested: they have worked in health care liability, in motor accidents and in workers compensation.

35 The bill that was being introduced as Stage 1 of the “Government’s tort law reforms” included the provisions in Part 2 with which this motion is concerned. These were the provisions concerned with damages. Stage 2 resulted in the present Act that contained the then existing provisions relating to damages and new provisions relating to the law of negligence. The defendant relied upon the underlined passages to indicate how far-ranging the reforms were intended to be and that they were designed to limit the amount of compensation payable under the law of tort. Therefore apart from nominated exceptions stated in the provisions they were intended otherwise to apply to all forms of compensation in proceedings based upon tort. It was argued that the provisions should be read in order to bring about this result.

36 I believe that the provisions of the Act should be read with this purpose of parliament in mind. That being the case it is difficult to see why it should have been decided to intentionally exempt compensation for loss of services especially when such an exemption is not especially provided for. I accept that the Act is not a code and there are other areas not covered. But it seems inconceivable to me that parliament would not have sought to cap such compensation when dealing generally with compensation “relating to” death or personal injuries.

37 I do not accept the argument of the plaintiffs that, because Part 2 is dealing with compensation relating to death as well as injury, it was not intended that a claim based only on injury should fall within the ambit of the Part. I simply do not understand why such reasoning should apply to limit a phrase that was intended to cover compensation whether it arose from either death or injury.

38 Nor do I accept that the Act should be construed on the basis that there is no clear intention manifest in the provisions of parliament’s intention to interfere with common law rights. That is no longer a tenet of statutory construction. In R v Janceski [2005] NSWCCA 281, 64 NSWLR 10 the Chief Justice wrote:

61 Mr Smith SC submitted that the reasoning in Painter reflected the position at common law and relied on the principle of statutory interpretation, that Parliament is presumed not to intend to change the common law, unless the legislation indicates that that was intended with “irresistible clearness”. Reliance was placed on the judgment of this Court in R v Downs (1985) 3 NSWLR 312 at 321-322 and on the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia in R v Khammash (2004) 147 A Crim R 129 at 148-150.

62 The principle of statutory interpretation relied on by the Crown is, in my opinion, now of minimal weight. It reflects an earlier era when judges approached legislation as some kind of foreign intrusion. The scope and frequency of legislative amendment of the common law, including the common law of criminal procedure, has over many decades been both wide ranging and fundamental.

“If such an assumption be shown to be or to have become ill founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed.”

64 In Bropho, the Court concluded that the presumption that legislation did not intend to bind the Crown had been so modified. The presumption relied upon by the Crown in the present case has also, in my opinion, come to be modified or, at least, diminished in significance. The test of “irresistible clearness”, or equivalent, to which some authorities refer is too stringent in contemporary circumstances.

65 Kirby J has often emphasised the duty of courts to obey a legislative text and has indicated that it is not permissible to adhere to pre-existing common law doctrines in the face of a statute. (See e.g. Regie Nationale des Usines Renaud SA v Zhang (2002) 210 CLR 491 at [143]-[147].) McHugh J has stated that the presumption that a statute is not intended to alter or abolish common law rights must now be regarded as weak. (See Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at [28]-[30]; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [36].) His Honour has, however, said that the presumption continues to operate with some strength when fundamental legal principles or fundamental rights are involved. (See Gifford supra at [36]; Malika Holdings supra at [28] and see also at [29]-[30] and Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; 78 ALJR 1232 at [19].)

66 The reasoning of McHugh J reflects a strong line of authority in the High Court that Parliament does not intend to alter or restrict fundamental rights, freedoms and immunities. This line of authority commences with Potter v Minahan (1908) 7 CLR 277 at 304 and is affirmed in Bropho v Western Australia supra at 17-18; Coco v The Queen (1994) 179 CLR 427 at 437; Electrolux supra at [21]; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [30]; Al-Kateb v Godwin [2004] HCA 37; 78 ALJR 1099 at [19], [150].

67 In R v Downs (1985) 3 NSWLR 312, on which the Crown relied in the present case, Lee J referred to the judgment of Potter v Minahan and noted that O’Connor J in that judgment had referred to passages in Maxwell on Interpretation of Statutes in the 4th edition. He then quoted, what his Honour said was, the parallel section in the 12th edition of that work.

68 The 12th edition referred to an assumption that Parliament would not “depart from the general system of law without expressing its intention with irresistible clearness”. However, the 4th edition of Maxwell On Interpretation of Statutes quoted by O’Connor J in Potter v Minahan and which has subsequently been referred to on numerous occasions with approval, is not the same as the 12th edition quoted in Downes. It referred to the improbability that Parliament would “overthrow fundamental principles, infringe rights or depart from the general system of law”. This provides a quite different focus to that suggested by the 12th edition. In R v Khammash (2004) 147 A Crim R 129, the Full Court of the Supreme Court of South Australia relied on the original text and on the judgments of the High Court in Bropho and Coco which focus on fundamental rights and principles (see at 148-149).

39 The right of an employer to claim compensation for the loss of services of an employee does not seem to me to be a fundamental legal right or principle of the kind that should be offered the protection of a construction of the Act such as the plaintiffs claim. To the contrary it seems to me that generally speaking the intention of parliament was to deal with all common law claims for damages arising from the application of the law of torts unless specifically excluded or unless they are so inconsistent with the provisions of the Act that they cannot in any rational sense be applied to them.

40 I accept that the parliament could have made it clear that loss of services was caught by the provisions of Part 2. But if the intention had been to exclude that form of compensation, I would have expected to find it in an exclusion provision rather than for it to be left to the chance construction of the provisions of the Act.

41 The use of the words “relate to” were clearly intended to widen the scope of the term “personal injury damages” so there could be no argument as to whether the class of compensation under consideration fell within the ambit of the Act or not. So too was the purpose of s 11A(2) by extending the application of the Part beyond tort law. I believe that it was the intention of parliament that the Part would apply to all claims for compensation arising from the death or injury of a person regardless of how the injury or death of the person sounded in damages.

42 It may be the case that loss of services can more aptly be described than as relating to the death or injury of any person. But it cannot be said that it does not fall broadly within that description. The loss of services arises from or is caused by the injury suffered by the employee. Therefore, as it seems to me, it can be fairly said that the loss relates to the injury to the employee in the sense that it is associated with or connected to the injury. The loss to the employer may only be indirectly related to the injury to the employee but it is related to it nevertheless. In my opinion Part 2 of the Act applies generally to the company plaintiff’s claims.

43 The plaintiffs argue that, even if Part 2 of the Act applies generally, s 12 has no application to the claim for loss of services. In effect the argument is that there is no provision in Part 2 that would operate on the company plaintiffs’ claims to limit them. Therefore, the Court could award damages to the full extent of the claims because the Court would not be awarding damages contrary to the Part in contravention of s 11A(3). This notwithstanding that the actual person who suffered the injury could not receive full compensation.

44 The plaintiffs submit that s 12 is concerned with a claimant seeking compensation for loss of earnings and this cannot apply to the company plaintiffs who, as claimants, are seeking compensation for loss of the economic value of the services rendered to the companies by their employees. They point to the fact that reference is made to what the “claimant’s gross weekly earnings would (but for the injury or death)” have been. The plaintiffs point to similarities in the terms used in s 13 as rendering that section also inapplicable to the company plaintiffs’ claims.

45 It must be said that on its face s 12 appears to be dealing with the loss of earning to a person as a result of the person’s injury or death. It is an inapt way of dealing with a company’s loss of revenue, by way of profit or otherwise, which would not generally be considered as weekly earnings. Section 12(3)(a) refers to the “total weekly earnings of all employees” that is said to indicate that the section is concerned with wages or salaries.

46 The plaintiff accepted that in Kaplantzi v Pascoe [2003] NSWCA 386; 40 MVR 146 at [32] the Court took a wide view of what was encompassed by the term “net weekly earnings” on a proper construction of the provisions of Motor Accidents Compensation Act to include the generation of assets. But they point out that the Court was still concerned with earnings by an employee and, therefore, the extension of the term was within a reasonable construction of the particular provisions.

47 Here the Court would need to construe “net weekly earnings” to include something that in no way could be considered as a wage or a salary or as money earned by a person from his or her employment. Nor could whatever the company earned be considered as a steady or regular course of payment of approximately the same amount over a period of time and, therefore, an appropriate means of calculating economic loss of a person.

48 The defendants submit that while the wording of the section may be inapt to refer to the income of a company it does not follow that he cannot do so with a reasonable and rational interpretation of the words of the section. It also points out that the Queensland provision quoted above employs the concept of weekly earnings to formulate a cap on damages for loss of services in the same way as s 12 would apply.

49 I cannot conclude that it was the intention of parliament that s 12 apply to a “quod per servitium amisit” claim notwithstanding the anomalous situation that would follow such a finding. I have already expressed the view that there could be no policy that I can see that would justify such a result. I was willing to find that Part 2 applied to such a claim because I could not hold that the wide meaning to be given to the definition of “personal injury damages” must exclude compensation for loss of services. I was prepared to read that provisions of the Act from a purposive approach and consistently with what I perceived to be the intention to cover all claims for compensation resulting from the injury or death of a person.

50 But such an approach can only be extended as far as the terms of the provisions will reasonably permit such a construction. I find it impossible however to construe s 12(2) so that it must apply to the company plaintiffs’ claims. This is not a result that appeals to me for reasons that I have already expressed. It seems irrational, illogical and unfair. But the words and concepts used in s 12(2) have a clear meaning that is incompatible with a loss of services by a company. I would have been prepared to find that the wording of s 12(1) might have included a claim for loss of services if the other subsections could reasonably apply even though those words on their face seem to be referring to a claim by the injured person.

51 I accept that one way of limiting a per quod servitium claim would be to base it upon weekly earnings of employees generally and that is what the parliament in Queensland has done. Another way would be to limit it by reference to a determined sum of money such as the provision considered by the Court in Kaplantzi v Pascoe. But that is a decision to be made by parliament and by a provision that indicates that parliament has considered whether to limit the claim and how it is to be done. Section 12 does not convey that intention to me.

52 Because I have decided that s 12 does not apply to a claim for services it does not follow that I should revisit my view that Part 2 does apply generally. There may be other provisions that can be applied to such a claim for example the provisions relating to interest rates and discount rates.

53 The questions should be answered:

1. Yes

2. No

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Citations

Mathew Chaina v The Presbyterian Church (NSW) Property Trust and 15 Ors [2007] NSWSC 353

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CITATION:	Mathew Chaina v The Presbyterian Church (NSW) Property Trust and 15 Ors [2007] NSWSC 353
HEARING DATE(S):	19/03/2007
JUDGMENT DATE :	19 April 2007
JUDGMENT OF:	Howie J at 1
DECISION:	The questions should be answered - 1. Yes; 2. No; 3. Yes but not section 12.
CATCHWORDS:	Statutory construction - Civil Liability Act - whether Part 2 applies to limit damages on a claim per quod servitium amisit.
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 - Rule 28.2 Civil Liability Act 2002 (NSW) Motor Accidents Act (now repealed) Motor Accidents Compensation Act 1999 - ss 12(3), 125, 142 Employees Liability Act 1991 - s 4 Civil Liability Act 2003 (Qld) - s 58 Interpretation Act 1987 - s 33
CASES CITED:	Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392 GIO Australia v Robson (1997) 42 NSWLR 439 Landon v Ferguson (2005) 64 NSWLR 131 Empire Shipping Co. v Owners of Ship "Shin Kobe Maru" (1991) 104 ALR 289 State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412 Kenbrad Pty Limited v Vakauta [2001] NSWCCA 204 Coco v The Queen (1994) 179 CLR 427 Thomson v Australian Capital Television Pty Limited (1994) 54 FCR 513 R v Janceski [2005] 64 NSWLR 10 Kaplantzi v Pascoe [2003] NSWCA 386
PARTIES:	Mathew Chaina v The Presbyterian Church (NSW) Property Trust and 15 Ors
FILE NUMBER(S):	SC 020472/02
COUNSEL:	P. Garling SC, A. Bell SC, J. Stephenson - Plaintiff R. Stitt QC, G.L. Turner - Defendants