SUSAN JOY TAYLOR IN HER OWN CAPACITY AND FOR AND ON BEHALF OF THE DEPENDANTS OF THE LATE CRAIG TAYLOR APPELLANT
AND
THE OWNERS – STRATA PLAN NO 11564 & ORS RESPONDENTS
Taylor v The Owners – Strata Plan No 11564
[2014] HCA 9
2 April 2014
S179/2013
ORDER
1.Appeal allowed.
2.Set aside orders 3 and 4 of the Court of Appeal of the Supreme Court of New South Wales made on 18 March 2013, and orders 1 and 2 of that Court made on 5 June 2013, and, in their place, order that:
(a) the appeal be allowed;
(b) the orders of the Supreme Court of New South Wales made on 27 July 2012 be set aside and, in their place, order that:
(i) the separate question:
"Insofar as the plaintiffs claim damages pursuant to ss 3 and 4 of the Compensation to Relatives Act 1897, is any award of damages limited by the operation of s 12(2) of the Civil Liability Act 2002?"
be answered:
"No, the operation of s 12(2) of the Civil Liability Act 2002 (NSW) does not limit the first plaintiff's claim for damages pursuant to ss 3 and 4 of the Compensation to Relatives Act1897 (NSW) as pleaded on behalf of herself and any other entitled relatives of the late Mr Craig Taylor in that it does not require the court to disregard the amount by which the gross weekly earnings of Mr Craig Taylor would, but for his death, have exceeded an amount that is three times the average weekly earnings at the date of the award"; and
(ii) the first to sixth defendants pay the first and second plaintiffs' costs of the separate question; and
(c) the first to fourth and sixth respondents pay the appellant's costs of the appeal.
3.The first to fourth and sixth respondents pay the appellant's costs in this Court.
On appeal from the Supreme Court of New South Wales
Representation
J Poulos QC with V M Heath for the appellant (instructed by Craddock Murray Neumann)
P W Taylor SC with A C Scotting for the first to fourth respondents (instructed by Meridian Lawyers)
S R Donaldson SC with S P W Glascott for the sixth respondent (instructed by DLA Piper Australia)
Submitting appearances for the fifth and seventh to tenth respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Taylor v The Owners – Strata Plan No 11564
Statutes – Statutory construction – Whether Court of Appeal erred in construction of Civil Liability Act2002 (NSW), s 12(2) – Whether Civil Liability Act2002 (NSW), s 12(2) limits awards of damages under Compensation to Relatives Act1897 (NSW), ss 3, 4 – Whether s 12(2) limitation applies to deceased's gross weekly earnings.
Words and phrases – "claimant", "deceased", "gross weekly earnings", "loss of expectation of financial…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9
Case
[2014] HCA 9
Decision Date
CaseChat Overview and Summary
The appeal concerned the construction of section 12(2) of the *Civil Liability Act 2002* (NSW) in the context of damages awarded under the *Compensation to Relatives Act 1897* (NSW). The appellant, the widow of the deceased Mr Craig Taylor, brought a representative action against the respondents for damages for the loss of financial support expected from her late husband, who died in an accident. The central dispute was whether section 12(2) of the *Civil Liability Act*, which limits awards by disregarding a claimant's gross weekly earnings exceeding three times the average weekly earnings, applied to the deceased's earnings in a claim for loss of expectation of financial support.
The High Court was required to determine whether the Court of Appeal erred in its construction of section 12(2) of the *Civil Liability Act 2002* (NSW). Specifically, the court had to decide if this section, which limits awards of damages by reference to a claimant's gross weekly earnings, also applied to limit awards made under sections 3 and 4 of the *Compensation to Relatives Act 1897* (NSW) by reference to the deceased's gross weekly earnings. The core legal issue was whether the phrase "claimant's gross weekly earnings" in section 12(2) could be interpreted to refer to the deceased's earnings in the context of a claim for loss of financial support.
The High Court allowed the appeal, holding that the Court of Appeal had erred in its construction. The Court reasoned that the phrase "claimant's gross weekly earnings" in section 12(2) could not, as a matter of statutory construction, refer to the gross weekly earnings of the deceased. The deceased was not the "claimant" in the proceedings. Therefore, the limitation imposed by section 12(2) did not apply to the deceased's gross weekly earnings when calculating damages for the loss of expectation of financial support under the *Compensation to Relatives Act 1897* (NSW). The Court emphasised that a construction that required reading the deceased's earnings into the provision was irreconcilable with the enacted language.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders 3 and 4 of the Court of Appeal of the Supreme Court of New South Wales made on 18 March 2013, and orders 1 and 2 of that Court made on 5 June 2013, and, in their place, order that:
(a) the appeal be allowed;
(b) the orders of the Supreme Court of New South Wales made on 27 July 2012 be set aside and, in their place, order that:
(i) the separate question:
"Insofar as the plaintiffs claim damages pursuant to ss 3 and 4 of the Compensation to Relatives Act 1897, is any award of damages limited by the operation of s 12(2) of the Civil Liability Act 2002?"
be answered:
"No, the operation of s 12(2) of the Civil Liability Act 2002 (NSW) does not limit the first plaintiff's claim for damages pursuant to ss 3 and 4 of the Compensation to Relatives Act 1897 (NSW) as pleaded on behalf of herself and any other entitled relatives of the late Mr Craig Taylor in that it does not require the court to disregard the amount by which the gross weekly earnings of Mr Craig Taylor would, but for his death, have exceeded an amount that is three times the average weekly earnings at the date of the award"; and
(ii) the first to sixth defendants pay the first and second plaintiffs' costs of the separate question; and
(c) the first to fourth and sixth respondents pay the appellant's costs of the appeal.
3. The first to fourth and sixth respondents pay the appellant's costs in this Court.
Background
Background to the litigation
FRENCH Section 12(2) of the Civil Liability Act 2002 (NSW) ("the Liability Act") directs a court, when awarding damages relating to the death of or injury to a person, to disregard the amounts (if any) by which the claimant's gross weekly earnings would, but for the injury or death, have exceeded three times the amount of average weekly earnings at the date of the award ("the s 12(2) limitation"). The s 12(2) limitation applies to awards of damages for past and future economic loss due to the deprivation or impairment of earning capacity, for past economic loss due to loss of earnings, and for "the loss of expectation of financial support"[1]. The latter expression is apt to describe an award of damages under the Compensation to Relatives Act 1897 (NSW) ("the Relatives Act"). The issue presented by the appeal is whether, in the case of an award of damages for the loss of expectation of financial support, the s 12(2) limitation is to be construed as applying to the deceased's gross weekly earnings.[1]Civil Liability Act 2002 (NSW), s 12(1). Background The appellant is the widow of the late Mr Craig Taylor. Mr Taylor was killed when an awning outside a shop collapsed on him. The appellant commenced proceedings in the Supreme Court of New South Wales against the first to sixth respondents claiming damages under ss 3 and 4 of the Relatives Act. The action is a representative proceeding brought for the benefit of the appellant and any entitled children of the deceased[2]. [2]Compensation to Relatives Act 1897 (NSW), ss 4(1), 5, 6B(2). The deceased was a land surveyor in private practice. It was accepted for the purpose of present proceedings that had the deceased lived he would have earned income substantially in excess of three times the amount of average weekly earnings. The appellant claims damages for the loss of benefits that she and the children expected to receive had the deceased lived, derived from his personal exertion, investment, creation and maintenance of capital assets and services. No component of the damages claimed is based upon any loss of the appellant's, or the children's, earnings. The trial of the appellant's representative action is yet to take place. With the consent of the parties, the primary judge (Garling J) agreed to the separate determination of one question[3]:"Insofar as the [appellant] claim[s] damages pursuant to ss 3 and 4 of the Compensation to Relatives Act 1897, is any award of damages limited by the operation of s 12(2) of the Civil Liability Act 2002?"[4][3]Uniform Civil Procedure Rules 2005 (NSW), r 28.2. [4]Taylor v The Owners – Strata Plan No 11564 [2012] NSWSC 842 at [1]. Garling J answered the separate question adversely to the interests of the appellant, holding that insofar as the damages claimed include damages for the loss of an expectation of financial support provided by the deceased, the court is to disregard the amount (if any) by which the deceased's gross weekly earnings would (but for his death) have exceeded an amount that is three times the amount of average weekly earnings at the date of the award[5].[5]Taylor v The Owners – Strata Plan No 11564 [2012] NSWSC 842 at [83].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, CRENNAN AND BELL JJ
GAGELER AND KEANE JJ
(dissent)
Lord Diplock's speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation[73]. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock's conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be "too far-reaching"[74]. In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution[75]. [73]Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106. [74]Inco Europe Ltd v First Choice Distribution(a firm) [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115.[75]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 512-513 [102] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2; Zheng v Cai (2009) 239 CLR 446 at 455-456 [28] per French CJ, Gummow, Crennan, Kiefel and Bell JJ; [2009] HCA 52.Conclusion The primary judge's construction and that proposed by the active respondents on the appeal each require that the phrase "claimant's gross weekly earnings", in the case of an award of damages under s 12(1)(c), be read as referring to the gross weekly earnings of the deceased. On no view can the deceased be "the claimant". To read s 12, in the case of an award under s 12(1)(c), as applying the s 12(2) limitation to the deceased's gross weekly earnings cannot be reconciled with the language that the Parliament has enacted. The phrase "the claimant's gross weekly earnings" is incapable of identifying the gross weekly earnings of the deceased. The phrase "loss of expectation of financial support" in s 12(1)(c) is susceptible of the construction proposed by the active respondents and that given to it by McColl JA. Her Honour described the phrase as a reflection of this Court's characterisation of Relatives Act damages[76]. On this view "expectation of financial support" is apt to encompass any material benefit having a money value. Construed in this way s 12(1)(c) and s 12(2) operate harmoniously[77]. It is a construction to be preferred to one that gives s 12(2) no work in the case of an award under s 12(1)(c)[78]. [76]Taylor v The Owners – Strata Plan No 11564 (2013) 83 NSWLR 1 at 7 [22].[77]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70]-[71] per McHugh, Gummow, Kirby and Hayne JJ; [1998] HCA 28. [78]Interpretation Act 1987 (NSW), s 33. There is no warrant for the conclusion that the s 12(2) limitation has the same purpose as the limitation in s 125 of the MAC Act. Relatives Act claims arising from motor accidents, by reason of their number or otherwise, may have called for a different legislative response to Relatives Act claims arising from other wrongful acts. And as Basten JA observed[79], the circumstance that the legislature chose to depart from the language used in s 125 of the MAC Act (and s 151I of the WC Act) does not provide a foundation for the assumption that the different words enacted in s 12 of the Liability Act (and its predecessor, s 9 of the HCL Act) are directed to the achievement of the same object. [79]Taylor v The Owners – Strata Plan No 11564 (2013) 83 NSWLR 1 at 18 [83].