Dear Colleagues;

To some extent the decision of the High Court of Australia in Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 (2 April 2014) http://www.austlii.edu.au/au/cases/cth/HCA/2014/9.html is mainly of interest to NSW lawyers involved in interpreting the Civil Liability Act 2002 (NSW) (CLA). But it may also provide an instructive example for others interested in the broader question: in interpreting a statute, when is the court allowed to “read in” extra words?

The point in issue was fairly narrow. The plaintiff was the widow of a high-earning surveyor who was making a claim under the Compensation to Relatives Act 1897 (NSW) for loss of expected future support (a “Lord Campbell’s Act” or “Fatal Accidents” claim.) The claim was subject to the CLA, s 12(2) of which required that in ordering damages in such a claim (among others) "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.” The question was, would damages be limited disregarding the actual level of the deceased’s weekly earnings, or by reference to the claimant’s (the widow’s) earnings?

The trial judge, and the NSW Court of Appeal by majority, had effectively said that the only rational way to read the CLA was to deem some reference to the deceased’s earning to be included into s 12(2), though there was in fact none (and, what I always thought was most telling, similar statutes in NSW dealing with the issue in other contexts did include an explicit reference to the deceased.) The High Court, by 3-2, today over-turned the CA. The majority (French CJ, Crennan and Bell JJ) said that it was not impossible to sometimes read extra words into a statute, but effectively this change was just “too far-reaching”- see [37]-[40]. The dissent (Gageler & Keane JJ) argued that the desired result could be achieved, not by adding words, but by reading “the claimant’s gross weekly earnings” as “the gross weekly earnings on which the claimant relies in making her claim”- [68]… Which to my mind is indeed a very “strained” reading of the words, which they themselves acknowledge.

I’m not aware whether an amendment to the Act to include the deceased has been put forward, but that would seem to be the obvious solution if it what Parliament wants.

Regards

Neil