Taylor v The Owners – Strata Plan No 11564 & Ors [2014] HCA 9

In a recent decision handed down by the High Court on 2 April 2014, the High Court held by majority that section 12(2) of the Civil Liability Act 2002 (NSW) does not apply to limit the award for damages referrable to the deceased's gross weekly earnings in dependant claims pursuant to sections 3 and 4 of the Compensation to Relatives Act 1987 (NSW). 

The appellant was Ms Susan Joy Taylor, the widow of the late Mr Craig Taylor. The deceased was fatally killed in 2007 when an awning outside of a shop fell on him. 

Ms Taylor initially sought damages in the New South Wales Supreme Court in her capacity as a dependent and for her dependent children. The primary judge was asked to consider whether the Court was to disregard the amount by which the claimant's gross weekly earnings would (but for the death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award.

The deceased was a land surveyor in private practice and it was conceded that he would have, but for his death, earned income substantially in excess of 3 times the amount of average weekly earnings in the future.  

Section 12(2) of the Civil Liability Act 2002 (NSW) seeks to limit economic loss damages awarded in such cases to 3 times the amount of average weekly earnings at the date of the award. ("the statutory maximum").

The trial judge, at first instance, directly applied section 12(2) capping future loss of expectation of financial support damages to the maximum.  Unsatisfied with the trial judge's decision, Ms Taylor then appealed to the NSW Supreme Court of Appeal. The appeal was ultimately dismissed. On appeal, McColl JJA noted that the ordinary meaning of the term "claimant" was someone who "makes or enters a claim; one who has a claim upon anything" and the deceased was "neither the person who makes the claim nor the person who is entitled to do so."  

Mrs Taylor was granted special leave to the High Court on a point of law involving the interpretation and applicability of section 12(2).  The question put before the High Court was whether section 12(2) ought to be interpreted so as to relate to the deceased's gross weekly earnings when awarding damages for loss of expectation of financial support in dependency claims.  

Ms Taylor's appeal was allowed. The High Court held that the claimant (namely Ms Taylor) was not (and could not be construed as) the deceased, (Mr Taylor), concluding that it would be contrary to Parliament's intention that the term "claimant" as contained in section 12(2) be construed so as to apply to the deceased's gross weekly earnings. In a majority decision, the Court held that section 12(2) did not apply and it was not required to disregard the amount by which the gross weekly earnings of Mr Taylor, but for his death, would have exceeded 3 times.

Ms Taylor was therefore entitled to seek damages for loss of expectation of financial support to the full extent of the claim, unrestricted by section 12(2). 

Although the subject of the appeal was specifically relevant to the applicability of the section 12(2) of the Civil Liability Act 2002 (NSW), we confirm that this provision is identical to section 28F of the equivalent Victorian legislation namely, the Wrongs Act 1985 (VIC).  

In terms of its application to the Queensland jurisdiction, section 54 of Civil Liability Act 2003 (QLD) largely embodies the language contained in sections 12(2) and 28F imposing the same statutory maximum in awards for damages for loss of earnings. However, the provision makes reference to "the present value of 3 times average weekly earnings per week for each week of the period of loss of earnings." You will note section 54 does not make any reference to a "claimant's" earnings but also does not impose the same restrictions of as contained in sections 12(2) and 28F.

Furthermore, the provision makes specific reference to its applicability in dependency claims. In light of the unambiguous wording of the provision, we would therefore conclude that this decision will not impact greatly on the Queensland jurisdiction.   

The High Court's decision is highly relevant to the Victorian jurisdiction given the equivalent language of the respective provisions. We would recommend that care be taken in circumstances where dependants make a claim for loss of expectation of financial support where the injured or deceased person's are high income earners. 

On the flipside, this decision does not affect the application of section 28F in circumstances where the injured person makes a claim for past or future economic loss.  That is, the statutory maximum is still applied to such claims. 

Arguably, in terms of the application of section 28F, one would note that a deceased person (but for the circumstances involving a claim made by the estate of the deceased) can never be "the claimant" in any other type of situation.