Australia: Apportionment is not relative: lessons for defendants in dependency claims in NSW

Last Updated: 14 June 2017
Article by Melissa Fenton and Sydney Abba


In Shinwari v Anjoul by her tutor Therese Anjoul [2017] NSWCA 74, the Court of Appeal has determined that a dependency claim brought under the Compensation to Relatives Act 1897 (NSW) is not an "apportionable claim" within the meaning of section 34(1)(a), Pt 4 of the Civil Liability Act 2002 (NSW).


The case concerned an action brought by Ms Tobei Anjoul, an infant, against a Dr Mohammad Shinwari under section 3 of the Compensation to Relatives Act (CRA) for alleged negligent treatment of the infant's mother (the deceased). The mother died following a cardiac arrest while being treated for opiate addiction (the dependency claim).

In his defence, Dr Shinwari contended that the dependency claim fell within the definition of an "apportionable claim" under section 34(1)(a), Pt 4 of the Civil Liability Act (CLA) as it was a claim for economic loss not "arising out of personal injury".

Dr Shinwari alleged that if he was found to be liable, there were other liable concurrent wrongdoers, including a counselling company, its director and the owner of the clinic that employed him.

At first instance, the plaintiff was successful in arguing that on construction, the dependency claim was one "arising out of personal injury". The primary judge subsequently struck out those parts of the defence. Dr Shinwari appealed to the Court of Appeal.

Dr Shinwari appealed on the grounds that the primary judge erred in law in finding that Pt 4 of the CLA does not apply to an action brought pursuant to section 3(1) of the CRA. He also appealed on the grounds that the primary judge erred in finding that the CRA was a claim arising out of personal injury for the purposes of section 34(1) of the CLA.


The principal judgment was delivered by McColl JA, who found for Ms Anjoul.

Her Honour quotes French CJ and Hayne J in Certain Lloyd's Underwriters v Cross [2012] HCA 56, where it was held that "the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute". (At [71].)

Her Honour determined that the evident purpose of the CLA is to control, in the sense of limit, the amount of damages which may be awarded in personal injury claims and, in contrast, it gives effect to a legislative policy that, in respect of claims purely relating to economic loss or property damage, a defendant should be liable only to the extent of their responsibility.

Her Honour explored the linguistic differences found within the CLA, and concluded that the discrepancies were most likely to be found in section 34 (and Pt 4) having its genesis in the Standing Committee of the Attorney General's Draft Model Provisions of 1996 which were devised "for use in more than one statute".

Her Honour accepted that the CRA was designed to meet and remedy special hardship caused by the operation of the rule actio personalis moritur cum persona (a personal action dies with the person). Her Honour noted that any claim brought pursuant to the CRA is therefore based on the wrongful death of a person who was injured by wrongful act, neglect or default.

Her Honour found support for this in Woolworths Ltd v Crotty, where Latham CJ explained that under the CRA, "it is a condition of the right of action that the deceased would have had a right of action, if death had not ensued, to recover damages in respect of the wrongful act, neglect, or default which was the cause of the death".

Her Honour established that the CLA, by virtue of Pt 1A, governed the CRA, both in relation to its construction and its calculation of damages and held that terms such as "arising out of" are relational terms whose meaning ultimately depends upon their statutory context and purpose. In the case of "arising out of", the term has been held to have a causative element. While it is not possible to define exhaustively, it is to be of broad import.


Her Honour then suggested that the resulting question is whether a prima facie conclusion is supported by an analysis of the text, context and the general purpose and policy of section 34(1).

The starting point is the text of section 34(1). Its function is to identify matters which are, or are not, "apportionable claims" for the purpose of Pt 4. The first phrase in subsection (1)(a) (inclusionary clause) identifies what is an apportionable claim and, hence, one to which Pt 4 applies. The second phrase in subsection (1)(a) (exclusionary clause) identifies what is not an apportionable claim and, hence, is not one to which Pt 4 applies.

Her Honour identified that although the inclusionary clause commences with the indefinite article "a" to describe the nature of the claim, the "claim" has to be one "for economic loss...(whether in contract, tort or otherwise) arising from a failure to take reasonable care". The word "for" limits the unlimited word "a". The subject of the "claim" is thus spelt out in the first clause of subsection 34(1)(a): "a claim for economic loss ... arising from a failure to take reasonable care".

In contrast, the language of the exclusionary clause is expansive. The intention is that "any claim arising out of personal injury" is not an apportionable claim. It is apparent that there must be a causal relationship between the excluded "claim" and the "personal injury", such that the former "arises out of" the latter.

Importantly, her Honour held that the word "any", indicated that there was no limit to the nature of the excluded claim, as long as it was one "arising out of personal injury". A CRA claim clearly does in this context, where a necessary requirement to its success lies in establishing that a person, but for death, would have had a maintainable action for personal injury.

Her Honour held that such a construction was consistent with the broader context in which section 34(1)(a) appears. Her Honour provided an example: where damages awarded in a CRA claim are "personal injury damages" for the purposes of Pt 2 of the CLA, it would be incongruous to hold that a claim for such damages did not, at least, "arise out of" personal injury.


Although Emmett AJA described the doctor's arguments (at [126]) as "somewhat compelling", both Emmett AJA and Gleeson JA agreed with the reasoning and orders proposed by McColl JA.

Her Honour held that the primary judge did not err in finding that Pt 4 of the CLA does not apply to an action brought pursuant to section 3(1) of the CRA, nor in finding that a claim brought pursuant to section 3(1) of the CRA is a claim arising out of personal injury for the purposes of section 34(1) of the CLA.


Subject to the matter being addressed by the High Court, there is now Court of Appeal authority establishing that a defendant to a dependency claim under the CRA is unable to rely on the proportionate liability provisions of Pt 4 of the CLA.

Defendants to such claims continue to have the right to seek contribution from another wrongdoer (or joint tortfeasor) pursuant to the Law Reform (Miscellaneous Provisions) Act 1944.

Melissa Fenton
Insurance and reinsurance
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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