How much support can you get from beyond the grave? Construction of s 12(2) of the Civil Liability Act and the relevance of the deceased's income in Compensation to Relatives Act claims

Taylor v Owners - Strata Plan 11564 [2013] NSWCA 55

Judgment date: 18 March 2013 Jurisdiction: New South Wales Court of Appeal1 In Brief

Part 2 - Personal Injury Damages of the Civil Liability Act 2002 (NSW) applies to claims made under the Compensation to Relatives Act 1897. Specifically, the word "claimant" in s 12(2) can be construed as including a "deceased person" such that a calculation of damages for the loss of expectation of financial support will be subject to the limit imposed by that section. Whilst this should be done with caution, it is appropriate, in certain circumstances, for the court to depart from the literal interpretation of a legislative provision when such an interpretation does not conform to the legislative intent. This can extend to reading words into legislation if the conditions identified by Lord Diplock in Jones v Wrotham Park Settled Estates2 are satisfied. Background

On 7 December 2007, Mr Craig Taylor (the deceased) was killed when an awning outside a shop on Sydney Road, Balgowlah, collapsed on him. A claim was brought by his widow, Ms Susan Joy Taylor, on her own behalf and on behalf of the dependants of the deceased under the Compensation to Relatives Act 1897 (NSW). The claim included an amount for the loss of expectation of financial support.

In such a claim for personal injury damages under the Civil Liability Act 2002 (NSW) (CLA), a court is required to disregard any amount of gross weekly earnings in excess of 3 times the average weekly earnings at the date of the award (s 12(2) of the CLA). The deceased in this case had a weekly income in excess of that limit.

On 30 March 2012, the Supreme Court ordered that a separate determination be made of the following 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?"

For ease of reference, s 12 of the CLA provides as follows:

"This section applies to an award of damages: for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or for future economic loss due to the deprivation or impairment of earning capacity, or for the loss of expectation of financial support. In the case of any such award, the court is to disregard the amount (if any) by which the claimant's gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award." Supreme Court

On 27 July 2012, Justice Garling determined the above question in Taylor v The Owners - Strata Plan 11564 3 . He held that:

"The claim ... for damages pursuant to the Compensation to Relatives Act ..., is, insofar as it includes damages for the loss of an expectation of the...