Can a defendant rely on a proportionate liability defence in a dependency claim?

Limelight Articles

Limelight 08/17

Can a defendant rely on a proportionate liability defence in a dependency claim?

Shinwari v Anjoul by her tutor Therese Anjoul [2017] NSWCA 74

Introduction

Claims “arising out of personal injury” are expressly carved out of the proportionate liability regimes otherwise applicable in every Australian State and Territory[1]. A defendant cannot rely on a proportionate liability defence to such a claim.

In Shinwari v Anjoul by her tutor Therese Anjoul [2017] NSWCA 74, the NSW Court of Appeal was required to determine whether a person’s death constituted a “personal injury” and therefore whether the NSW proportionate liability provisions applied to a dependency claim made pursuant to the Compensation to Relatives Act 1987 (NSW).

Relevant Legislation

Section 3 of the Compensation to Relatives Act confers, on certain relatives, a statutory right to recover damages from a wrongdoer where the death of the person is caused by a “wrongful act, neglect, or default” and the deceased would have had an actionable claim against the wrongdoer (dependency claim).

Section 34 (1)(a) of the Civil Liability Act 2002 (NSW) (CLA) provides that proportionate liability is available in respect of an apportionable claim, being:

a claim 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, but not including any claim arising out of personal injury.

“personal injury” is not defined in section 34; however, it is defined elsewhere in the CLA to include pre-natal injury, impairment of a person’s physical or mental condition and mental harm.

Background

On 29 September 2010, the late Grace Yates (the deceased) underwent “rapid opiate detoxification” treatment for opiate addiction by Dr Shinwari at the Psych N Soul Clinic (the clinic). The clinic was owned by R&D Counselling and Group Therapy Pty Ltd (R&D). Dr Ross Colquhoun was a director and the manager of R&D.

The deceased underwent detoxification at the clinic and suffered a heart attack. She was admitted to the Royal Prince Alfred Hospital and placed on life support. She died on 30 November 2010 after life support was withdrawn and was survived by her infant daughter, Tobei Anjoul.

First Instance

By her tutor, Ms Anjoul brought a dependency claim in the Supreme Court against Dr Shinwari and Dr Colquhoun. She later amended her Statement of Claim to abandon the claim against Dr Colquhoun. This was apparently due to insurance issues, rather than to do with the merits of the claim against him.

Ms Anjoul alleged that Dr Shinwari’s failure to exercise reasonable care and skill in the provision of advice and treatment of the deceased’s drug addiction caused her death.

In his defence, Dr Shinwari contended that the dependency claim was:

an “apportionable claim” within the meaning of section 34(1)(a) of the CLA and that the proportionate liability provisions applied to Ms Anjoul’s dependency claim;
properly characterised, a claim for economic loss not arising out of personal injury; and
one for which Dr Colquhoun and R&D were concurrent wrongdoers.

Ms Anjoul filed a Notice of Motion seeking orders that the Court strike out the paragraphs of the defence containing this proportionate liability defence or, in the alternative, that the Court determine, as a preliminary issue, whether the proportionate liability provisions applied to the dependency claim.

First Instance Decision

Justice Hulme held that a dependency claim was a claim “arising out of personal injury” and was excluded from the definition of an “apportionable claim”. The offending paragraphs were struck out of the defence. His Honour:

rejected Dr Shinwari’s submission that personal injury is irrelevant to a claim brought the Compensation to Relatives Act, because a dependency claim crystallises on death and personal injury is not a necessary precondition to a person’s death; and
was persuaded by Ms Anjoul that “arising out of” should be interpreted broadly.

Dr Shinwari appealed.

Appeal

At issue on appeal was whether the proportionate liability provisions applied to the dependency claim.

In his submissions, Dr Shinwari tried to draw a distinction between claims arising out of personal injury and claims arising out of death, and submitted that Ms Anjoul’s claim did not arise out of personal injury to her, rather personal injury to the deceased.

He submitted further that the phrase “arising out of” in section 34(1)(a) should be given a narrow interpretation and limited to a particular class of claims, excluding claims arising from death, which crystallised at the time of death and not before.

In support of this submission, Dr Shinwari pointed to the fact that a claim for damages was based on the common law and an action for wrongful death was born out of statutes; and that a broad interpretation of the phrase would have unacceptable consequences such that a plaintiff would only have to point to “some connection” between personal injury and economic losses.

Court of Appeal Decision

The Court of Appeal dismissed the appeal and held that:

on its proper construction, the dependency claim was one “arising out of personal injury” within the meaning of section 34(1)(a) of the CLA. It would be incongruous to hold otherwise;
the proportionate liability provisions did not apply to the dependency claim; and
“arising out of personal injury” should be interpreted broadly. It necessitates a causal relationship between the “claim” and the “personal injury” so that the claim “arises out of” the “personal injury”.

Implications

It is not open to a defendant to rely on a proportionate liability defence in dependency claims made pursuant to the Compensation to Relatives Act or any similar statute.

However, this decision does not affect a defendant’s right to bring a Cross Claim for contribution from a joint tortfeasor pursuant to section 5 of the Law Reform Miscellaneous Provisions Act 1946 (NSW) or any applicable statue that allows for contribution claims.

Date: 23 August 2017

[1] (ACT) Civil Law (Wrongs) Act 2002 Ch 7A;(NT) Proportionate Liability Act 2005 Pt 1;(NSW) Civil Liability Act 2002 Pt 4; (QLD) Civil Liability Act 2003 Ch 2 Pt 2; (SA) Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 Pt 3, (SA) Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 s 3(2);(TAS) Civil Liability Act 2002 Pt 9A; (VIC) Wrongs Act 1958 Pt IVAA; (WA) Civil Liability Act 2002 Pt 1F

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.