Section 34(1)(a) in Pt 4 of the Civil Liability Act 2002 (NSW) (Liability Act) defined an “apportionable claim” as “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” was defined elsewhere in the Liability Act (ss 5 and 27) as including “(a) pre-natal injury, and (b) impairment of a person’s physical or mental condition, and (c) disease”. Section 35(1) provided that in any proceedings involving an “apportionable claim”, “(a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant’s responsibility for the damage or loss, and (b) the court may give judgment against the defendant for not more than that amount.”
Section 3(1) of the Compensation to Relatives Act 1897 (NSW) (Relatives Act) gave a right of action against a person whose wrongful act, neglect or default caused the death of another in such circumstances as would have entitled the deceased to maintain an action and recover damages.
The respondent, Ms Tobei Anjoul, the infant daughter of the late Grace Yates (the deceased), brought a claim under s 3(1) of the Relatives Act against the appellant, Dr Mohammad Shinwari, seeking to recover damages in respect of the death of her mother which resulted from personal injury caused by Dr Shinwari’s negligence.
Dr Shinwari was employed by the Psych N Soul Clinic (Clinic). The deceased underwent “rapid opiate detoxification” to treat her opiate addiction at the Clinic on 29 September 2010 and suffered a cardiac arrest that afternoon. She was admitted to Royal Prince Alfred Hospital and placed on life support. She died on 30 November 2010, shortly after life support was withdrawn.
Ms Anjoul, by her tutor Ms Therese Anjoul, brought proceedings pursuant to s 3 of the Relatives Act against Dr Shinwari alleging that her mother had died in consequence of his failure to exercise reasonable care and skill in the provision of advice and treatment in relation to her mother’s opiate addiction (dependency claim). In his defence, Dr Shinwari contended that the dependency claim fell within the definition of an “apportionable claim” under s 34(1)(a), Pt 4 of the Liability Act as it was a claim for economic loss not “arising out of personal injury” as the latter expression is defined in s 5 of the Liability Act. He further pleaded that, if he was liable, R & D Counselling and Group Therapy Pty Ltd (R & D), the owner of the Clinic, and Dr Ross Colquhoun, director of 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 Liability Act.
The primary judge determined separately the question of the application of Pt 4 of the Liability Act to the dependency claim. His Honour held that Pt 4 did not apply to the claim and struck out the paragraphs of Dr Shinwari’s defence particularising his claim against Dr Colquhoun and R & D.
Dr Shinwari sought leave to appeal, and to appeal, against his Honour’s decision.
Held, granting leave to appeal but dismissing the appeal:
per McColl JA (Gleeson JA and Emmett AJA agreeing)
(1) On its proper construction the dependency claim was one “arising out of personal injury” within the meaning of s 34(1)(a) of the Liability Act. Accordingly, Pt 4 of the Liability Act did not apply to the dependency claim: ,  – , ; ; .
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378;  HCA 56; Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613;  HCA 10 referred to.
(2) To succeed in the dependency claim, it would be necessary for the respondent 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 which was caused by the appellant’s “wrongful act, neglect, or default” and was the cause of the deceased’s death:  – , , .
Woolworths Ltd v Crotty (1942) 66 CLR 603;  HCA 35; Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 applied.
(3) For the purposes of the phrase “arising out of personal injury” in s 34(1)(a) of the Liability Act, a causal relationship must exist between the “claim” and the “personal injury” such that the former “arises out of” the latter. As proof of the dependency claim required determining whether the deceased would have been able to maintain and recover damages in respect of the wrongful act etc which led to her death, the dependency claim was one “arising out of personal injury”. It is not necessary that the claim referred to in s 34(1)(a) arises out of a personal injury suffered by the plaintiff making the claim:  – , .
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR;  HCA 16; Walton v National Employers’ Mutual General Insurance Association  2 NSWLR 73; Paul v Cooke (2013) 85 NSWLR 167;  NSWCA 311; Cassegrain v Cassegrain  NSWCA 71 referred to.