Dependency claim: Proportionate liability and concurrent wrongdoers

Shinwari v Anjoul [2017] NSWCA 74 is a decision today of the Court of Appeal of New South Wales. Leave to appeal was granted as the decision concerns an  important question concerning the inter-relationship between the Compensation to Relatives Act 1897 (NSW) and the Civil Liability Act 2002 (NSW).

Ms Tobei Anjoul, the infant daughter of the late Grace Yates (the deceased), brought a claim 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. The deceased underwent “rapid opiate detoxification” to treat her opiate addiction at the Clinic and suffered a cardiac arrest that afternoon. She died the following day, shortly after life support was withdrawn.

Ms Anjoul brought proceedings pursuant to s 3 of the Compensation to 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 Civil 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 Civil 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.

Drawing from the headnote:

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 Civil Liability Act. Accordingly, Pt 4 of the Civil Liability Act did not apply to the dependency claim: [74], [97] – [98], [101]; [103]; [128].

(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: [79] – [81], [97], [111].

(3)   For the purposes of the phrase “arising out of personal injury” in s 34(1)(a) of the Civil 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: [89] – [97], [110].

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