A dependency claim is not an apportionable claim within the meaning of Part 4 of the Civil Liability Act 2002 (NSW).

In Issue

  • Whether a Compensation to Relatives Act 1987 (NSW) claim is properly characterised as arising from personal injury for the purposes of s34(1)(a) of the Civil Liability Act 2002 (NSW)
  • Whether the proportionate liability regime under Part 4 of the Civil Liability Act 2002 (NSW) extends to an action brought under s3(1) of the Compensation to Relatives Act 1987 (NSW)

Background

Tobei Anjoul, by her tutor Therese Anjoul, brought proceedings pursuant to s3(1) of the Compensation to Relatives Act 1987 (NSW) (CRA (NSW)) against Dr Mohammad Shinwari. Ms Anjoul alleged that her mother, Grace Yates (the deceased), died as a consequence of Dr Shinwari’s failure to exercise reasonable care and skill in the provision of advice and treatment in respect of the deceased’s opiate addiction (dependency claim).

Dr Shinwari was employed by Psych N Soul Clinic (the clinic), which offered “rapid opiate detoxification” services to treat opiate addiction. The deceased underwent detoxification at the clinic on 29 September 2010 and suffered a cardiac arrest that afternoon, later dying on 30 November 2010 shortly after life support was withdrawn.

The clinic was owned by R & D Counselling and Group Therapy Pty Ltd (R & D). Dr Ross Colquhoun was a director of R & D and also managed the clinic.

In his defence, Dr Shinwari contended that Ms Anjoul’s claim was properly characterised as a claim for economic loss not “arising out of personal injury” as defined by s5 of the Civil Liability Act 2002 (NSW) (CLA (NSW)) and that, accordingly, such a claim fell within the definition of an “apportionable claim” under Pt 4 of the CLA (NSW); and therefore if he was liable, Dr Colquhoun and R & D were concurrent wrongdoers and accordingly, any damages Ms Anjoul may recover from him should be apportioned between them pursuant to Pt 4 of the CLA (NSW).

Decision at trial

The trial judge held that an action brought pursuant to s3(1) CRA (NSW) is a claim arising out of personal injury for the purposes of s34(1) CLA (NSW); and Pt 4 of the CLA (NSW) did not apply to the dependency claim such that the paragraphs of Dr Shinwari’s defence particularising his claim against Dr Colquhoun and R & D were struck out.

Issues on appeal

The Court of Appeal had to consider whether the primary judge erred in finding the dependency claim under s3(1) CRA (NSW) was properly characterised as arising from personal injury for the purposes of s34(1) CLA (NSW); and whether the proportionate liability regime under Pt 4 CLA (NSW) extends to an action brought under s3(1) CRA (NSW).

Decision on appeal

The Court of Appeal held that the dependency claim brought under s3(1) CRA (NSW) was one "arising out of personal injury" within the meaning of s34(1)(a) CLA (NSW) and Dr Shinwari could therefore not rely on the proportionate liability defences.

A key element of the Court of Appeal’s reasoning was that to succeed in the dependency claim, it would be necessary for Ms Anjoul to establish that the deceased would have had a right of action, if death had not ensued, to recover damages in respect of personal injury caused by Dr Shinwari’s “wrongful act, neglect, or default”, which led to her death.

Implications for you

The decision resolves important questions concerning the inter-relationship between the CRA (NSW) and CLA (NSW). It is now established that a defendant to a dependency claim under the CRA (NSW) is unable to rely on the proportionate liability provisions of Pt 4 of the CLA (NSW), subject to the High Court of Australia addressing the matter.

Contribution or indemnity from a concurrent wrongdoer may of course be sought by a defendant to CRA (NSW) proceedings pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW).

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