The interlocutory decision in Anjoul v Shinwari [2015] NSWSC 1192 arose in the context of the claimant’s allegation that her mother had died in consequence of the defendants’ failure to exercise reasonable care and skill in the provision of advice and treatment in relation to the deceased’s opiate dependence and treatment by way of rapid opiate detoxification.

The claim was made under the Compensation to Relatives Act 1897 (NSW) which the defendant sought to characterise as a claim for economic loss, such that the proportionate liability provisions of the Civil Liability Act 2002 (NSW) should apply. The argument appears to have been made as one defendant was uninsured and so the plaintiff withdrew her claim against him.

The claimant argued that her claim arose out of personal injury, such that that the proportionate liability provisions of the Civil Liability Act 2002 (NSW) should not apply.

Section 34(1)(a) provides that Part 4 of applies to:

….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.

The court considered the meaning of the phrase ‘not including any claim arising out of personal injury‘ in section 34 and held that Part 4 of the Civil Liability Act 2002, (NSW) (the proportionate liability part) does not apply to the Plaintiff’s claim under the Compensation to Relatives Act 1897 (NSW).”

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