Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Williamson [2011] NSWCA 183 Hearing dates: 17 February 2011 Decision date: 05 July 2011 Before: Hodgson JA at [1] Campbell JA at [6] Macfarlan JA at [117] Decision: 1. Grant leave to appeal, on condition that the Applicant pay the Respondent's costs in any event, and that the Applicant not seek to disturb the costs order in the Supreme Court below. 2. Direct the Applicant to file, within seven days of the date of delivery of these reasons, a Notice of Appeal in the form of the draft contained in the White Book. 3. Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS - limit on the maximum amount for costs in connection with a claim for "personal injury damages" - Legal Profession Act 2004 (NSW), s 338 -- claim for false imprisonment is not claim for "personal injury damages", at least where the damages claimed include damages for wrongful deprivation of liberty and loss of dignity - where such a claim is included in a claim for damages and is not a severable part of that claim, the claim for damages is not a claim for "personal injury damages" COSTS - limit on the maximum amount for costs in connection with a claim for "personal injury damages" - Legal Profession Act 2004 (NSW), s 338 - "personal injury damages" defined to have same meaning as in Part 2 Civil Liability Act 2002 - whether maximum costs limitation applies to awards of personal injury damages resulting from intentional acts - correctness of Cross v Certain Lloyds Underwriters [2011] NSWCA 136 STATUTORY INTERPRETATION - principles - reading provision in context - whether, when operative statute adopts a term "as defined in" a source statute, account must be taken of the operation of that phrase in the source statute STATUTORY INTERPRETATION - principles - meaning of statutory provision able to be ascertained by tracing the evolution of statutory provisions from initial enactment and through subsequent amendments STATUTORY INTERPRETATION - principles - reading provision in context - fundamental difference between the meaning of a word or expression and the scope of application of a legal principle Legislation Cited: Civil Liability Act 2002 Civil Liability Act 2003 (Qld) Civil Liability Amendment (Offender Damages) Act 2004 Civil Liability Amendment (Personal Responsibility) Act 2002 Civil Liability Amendment Act 2006 Compensation to Relatives Act 1897 Dust Diseases Tribunal Act 1989 Income Tax Assessment Act 1936 (Cth) Law Reform (Miscellaneous Provisions) Act 1965) Law Reform (Vicarious Liability) Act 1983 Legal Profession Act 1987 Legal Profession Act 2004 Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Motor Accidents Compensation Regulation (No 2) 1999 Police Offences Act 1935 Sporting Injuries Insurance Act 1978 Victims Support And Rehabilitation Act 1996 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Allsop v Federal Commissioner of Taxation (1965) 113 CLR 341 Amaca Pty Ltd v Novek [2009] NSWCA 50 Baltic Shipping v Dillon (1993) 176 CLR 344 Catlow v Accident Compensation Commission [1989] HCA 43; (1989) 167 CLR 543 Christie v Leachinsky [1947] AC 573 Coffey v State of Queensland [2010] QCA 291 Cross v Certain Lloyds Underwriters; Thelander v Certain Lloyds Underwriters [2011] NSWCA 136 CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89 Henry v Motor Accidents Insurance Board [2005] TASSC 62; (2005) 13 Tas R 340 Johnstone v State of New South Wales [2010] NSWCA 70 Lamb v Cotogno (1987) 164 CLR 1 McLaurin v Federal Commissioner of Taxation (1961) 104 CLR 381 Minister for Immigration and Multicultural and Indigenous Affairs v Hicks [2004] FCAFC 114; (2004) 138 FCR 475 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 NSW v Corby [2010] NSWCA 27; (2010) 76 NSWLR 439 Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 Plenty v Dillon (1991) 171 CLR 635 Producers' Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) [1948] AC 210 Producers' Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) (1944) 69 CLR 523 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 Spautz v Butterworth (1996) 41 NSWLR 1 State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 State of New South Wales v Radford [2010] NSWCA 276 State of NSW v Corby [2010] NSWCA 27; (2010) 76 NSWLR 439 State of NSW v Delly [2007] NSWCA 303; (2007) Aust Torts Reports 81-920 Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 TCN Channel 9 Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 Watson v Marshall & Cade (1971) 124 CLR 621 Williamson v State of NSW [2010] NSWSC 229 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 Texts Cited: JJ Spigelman AC, "The Intolerable Wrestle: Developments in Statutory Interpretation" (2010) 84 Australian Law Journal 8222 Category: Principal judgment Parties: State of New South Wales (Appellant) Jayson Williamson (Respondent) Representation: Counsel J Simpkins SC; DF Villa (Appellant) R McKeand SC; F Austin (Respondent) Solicitors Crown Solicitor's Office (Appellant) Byles Anjos Lawyers (Respondent) File Number(s): 2009/297844 Publication restriction: None Decision under appeal Jurisdiction: 9111 Citation: Williamson v State of NSW [2010] NSWSC 229 Date of Decision: 2010-03-30 00:00:00 Before: Hall J File Number(s): 2009/297844 Judgment 1HODGSON JA: I agree with the orders proposed by Campbell JA. 2I agree with Campbell JA, for reasons he gives, that: (1) A claim for damages for false imprisonment, at least insofar as it extends to a claim for damages for deprivation of liberty and loss of dignity, is not a claim for damages that relate to the death or injury to a person. (2) When such a claim is included in a claim for damages, is not a severable part of that claim, and is not negligible, the claim for damages is not "a claim for personal injury damages" within the meaning of s 338 of the Legal Profession Act 2004. (3) The appeal must be dismissed on that ground. 3On the other question raised in this case, I adhere to my agreement with Basten JA in Cross v Certain Lloyds Underwriters [2011] NSWCA 136. 4I acknowledge that the reasoning set out in the Schedule to Campbell JA's judgment shows there are powerful considerations in favour of the contrary view. However, I respectfully think the view adopted in Cross is correct. The following considerations appear to me to be particularly compelling: (1) Although the definition of "personal injury damages" in the Civil Liability Act 2002, when first introduced, was expressed as applying "in this Act" generally, that phrase was given operative effect only in Part 2 of the Act, entitled "Personal injury damages", which did not apply to cases "where the fault concerned is an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct"; and thus it was not effectually given any meaning in any other cases. (2) The phrase "the same meaning as in the Civil Liability Act 2002", appearing in s 198C of the Legal Profession Act 1987 as enacted, could be understood as directing attention to the meaning effectually given in the Civil Liability Act , and thus as incorporating the limitations of application prescribed by the Civil Liability Act , especially in the light of the authorities referred to by Basten JA in Cross at [30]-[35]. (3) It is legitimate to take account of the fact that s 198C was introduced as part of a single package, addressing a perceived crisis in public liability insurance, which included the enactment of the Civil Liability Act 2002; and that in the second reading speech that dealt both with the Civil Liability Bill and the relevant amendments to the Legal Profession Act , it was said that excluded from the operation of the bill (and, by implication, the amendments) were "intentional acts done with the intent to cause injury or death or acts involving sexual assault". (4) Accordingly, the effect of the original s 198C definition, properly understood, was that the costs cap as originally introduced did not extend to those intentional torts. (5) The amendments to the Civil Liability Act and to s 198C made in November 2002 by the Civil Liability Amendment (Personal Responsibility) Act 2002, which amended the definition in s 198C to refer to "the same meaning as in Part 2 of the Civil Liability Act 2002", confirmed the legislative intention that the limitations of application of Part 2 of the Civil Liability Act were to be given effect to in s 198C. (6) The amendment to Part 2 of the Civil Liability Act effected by the Civil Liability Amendment Act 2006 cannot reasonably be considered as disclosing a legislative intention that the cap (by then imposed by ss 337-338 of the Legal Profession Act 2004), which hitherto had not applied to certain intentional torts, should now do so. Although that amendment meant that, within Part 2 of the Civil Liability Act , ss 15B and 18(1) did apply to the relevant intentional torts, that should be understood as leaving in place the position that Part 2 did not apply to those intentional torts, and ss 15B and 18(1) should be seen as very limited and particular inroads to this. 5As regards the reference in Cross to "intentional torts", in my opinion that clearly is to be understood as limited to those intentional torts falling within the words "an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person". Certainly, that was my intention. 6CAMPBELL JA : The Question for Decision 7This judgment arises from the concurrent hearing of an application for leave to appeal, and the appeal if leave is granted. It concerned a narrow but important question of statutory construction. 8Section 338(1) Legal Profession Act 2004 (" 2004 LP Act ") imposes a limit on the maximum costs for legal services provided to a party in connection with a claim if " the amount recovered on a claim for personal injury damages does not exceed $100,000 ". The question is whether that cap applies when a claim is brought alleging assault, wrongful arrest and false imprisonment, that the plaintiff alleges have caused him personal injury, when that claim settles before trial for less than $100,000. In the judgment appealed against, Hall J held that in those circumstances the cap did not apply: Williamson v State of NSW [2010] NSWSC 229. 9The question at issue concerns the costs recoverable in a very common type of litigation. Subject to one matter, it is of sufficient general importance to warrant the grant of leave to appeal. 10That "one matter" is that the Respondent submits that any grant of leave should be made conditional on the Applicant paying the Respondent's costs in any event, and on the Applicant not seeking to disturb the costs order in the Supreme Court below. The Respondent submits that, for the Applicant, this is a test case, the resolution of which is highly desirable to it as a very large and recurrent litigant in damages claims founded on intentional torts. The Respondent submits that the Applicant is prosecuting this appeal to vindicate its commercial interests, because success will reduce the quantum of costs that it is obliged to pay to successful plaintiffs on damages claims founded on intentional torts. By contrast, the Respondent is a young man who is not a recurrent litigant. The Respondent submits that a condition of leave such as it proposes is consistent with the reasoning of Gleeson CJ, Gummow and Heydon JJ in CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [80]-[81]. 11The Applicant does not oppose that course. This stance of the Applicant makes it unnecessary to consider the applicability of factors identified by Basten JA in NSW v Corby [2010] NSWCA 27; (2010) 76 NSWLR 439 at [9] that might lead to the Court in any event deciding to impose such a condition. Leave should be granted on the terms the Respondent proposes. I should henceforth refer to the Applicant as the Appellant. Facts 12The Appellant is the State of New South Wales. It is common ground that, pursuant to s 8 Law Reform (Vicarious Liability) Act 1983, the State is vicariously liable in respect of torts committed by police officers in the performance or purported performance of a function that is an incident of their service. The Statement of Claim and Particulars 13The Respondent filed a statement of claim in the District Court on 19 July 2007. The statement of claim recounted how on the evening of 26 August 2006, the Respondent was at a particular golf club with a friend called Mr Lynch when a number of police vehicles parked in the grounds. The statement of claim says the Respondent lifted the door handle of one of these vehicles. The statement of claim then continues: " The Unlawful Arrest and First Assault 6. At the same time approximately six police officers were exiting the club house. A number of these police officers then rushed the plaintiff, one asking the plaintiff what he had [done]. Without cautioning the plaintiff and before he had time to respond, the police officers, without proper justification, forcibly and unreasonably threw the plaintiff to the ground and set upon his body causing his face to impact violently with the bitumen surface causing bruising, grazing and nasal bleeding. In addition, the plaintiff's body was restrained by means of the police officers applying unreasonable force repeatedly kneeing the plaintiff in his back and rib cage. The plaintiff's hands were then violently forced behind his back and cuffed. As this happened one police officer was heard to say words to the effect: 'He's resisting!' Another was then heard to say to the plaintiff words to the effect: 'Yeh, stop resisting!' While this was happening the plaintiff repeatedly asked the police officers what he had done wrong, without response. The False Imprisonment and Second Assault 7. The plaintiff was then dragged to his feet and lifted into the back of a police wagon. Some minutes passed before the plaintiff's mobile phone started ringing. The plaintiff managed to reach his phone and as he did so, the door of the police wagon was thrown open and one or more of the police officers, using unreasonable force and without proper justification, assaulted the plaintiff by means of grabbing his feet and violently pulled them out from under him causing the plaintiff, hands cuffed, to lose his balance and fall backwards hitting his head on the interior surface of the police wagon. The plaintiff was then forcibly dragged feet first out of the wagon and on to the ground and in doing so, the back of the plaintiff's head impacted violently first with the rear bumper bar and then with the bitumen surface of the car park. The Third Assault 8. The plaintiff was then dragged away from the police wagon where a number of police officers set upon the plaintiff and again, using unreasonable force and without proper justification, assaulted the plaintiff by kneeing him in the back and sticking some form of hard implement, into the ribs, in order to wrestle the plaintiff's mobile phone from him. 9. The plaintiff was then dragged to his feet and after some minutes consulting with each other and Mr Lynch, the police officers un-cuffed the plaintiff and told him to immediately leave the premises. 10. At no stage during the course of the aforesaid events did the police officers warn or caution the plaintiff nor was he ever told why he was being placed under arrest. Damage 11. By reason of matters aforesaid, the Plaintiff suffered personal injury and loss, and damage, particulars of which are set out in the accompanying Part 15 Statement of Particulars and claims: (a) Damages; (b) Aggravated damages, particulars of which are as follows: (bi) Humiliation; (bii) Loss of dignity; (biii) Injured feelings, including psychological trauma. (c) Exemplary Damages; particulars of which are that assaults were committed by the police officers with: (ci) Reckless indifference to the plaintiff's health and safety; and (cii) Contumelious disregard for the plaintiff's civil liberties. 14On 16 May 2008 the Respondent filed a document in the form required by Form 14 of the Uniform Civil Procedure Rules entitled: "Statement of Particulars Personal Injury Proceedings" It identified the injuries he claimed to have received, and the continuing disabilities he claimed to have. Some of those disabilities were in the nature of pain, and reduced ability to have full use of various parts of his body. Others were in the nature of a mental reaction to the events of 26 August 2006. He claimed an intense sense of violation of person, of humiliation, of indignity, of anger, of frustration, of insecurity, of despair, and of uncertainty. He claimed a sense of awkwardness and a sense of worthlessness, labile affect, mood swings and loss of self-esteem. The list of disabilities included ways in which he contended his life had altered, other than through pain and restriction in bodily movement. These included flashbacks, nightmares, disturbed sleeping patterns, avoidance behaviour, reduced ability to socialise, and a moderate degree of both social dislocation and abnormal social behaviour. 15Dr Selwyn Smith, a consultant psychiatrist, provided an expert report to the Respondent's lawyers, which they provided to the solicitors for the Appellant. Dr Smith's report expressed opinions including the following: "... Mr Williamson, in response to the assault sustained on 26 August 2006, has developed a Chronic Adjustment Disorder with Depressed and Anxious Mood. ... [T]he incident that Mr Williamson was exposed to was a significant traumatic event that resulted in physical and psychological symptomatologies. The physical symptomatologies appear to be of a soft tissue kind but I would defer their significance to an orthopaedic surgeon. Mr Williamson has experienced an apprehensive expectation that further harm will befall him. He has developed heightened levels of anxiety. His self esteem has been lowered and he has lost confidence. He has become increasingly socially withdrawn. He has developed anger and animosity towards the police. His sleep patterns have been interrupted and he has experienced persistent troubled dreams and nightmares. His physical activities have been diminished. He has gained weight. His concentration has been impaired. ... Mr Williamson has experienced diagnostic criteria for a Chronic Adjustment Disorder with Depressed and Anxious Mood. ... I have outlined the psychological injury that in my opinion has been a direct outcome of the assault that he was exposed to. It is further my opinion that the psychological injuries sustained have been directly caused by the incidents experienced on 26 August 2006. There does not appear to be competing causes for the emergence of his Adjustment Disorder with Depressed and Anxious Mood. Whilst Mr Williamson is not disabled, he has developed psychological symptomatologies and impairments consequential upon the injuries sustained." The Settlement 16On 22 December 2008 the litigation was settled by the District Court making orders, all said to be "BY CONSENT and without admission of liability" . Those orders made provision for judgment for the plaintiff in a particular sum of money "plus costs of these proceedings as agreed or assessed" . Some other orders, not presently relevant, were also made. The Dispute Emerges 17The amount for which judgment was entered in the District Court was less than $100,000. The full text of s 338 2004 LP Act is: "338 Maximum costs fixed for claims up to $100,000 (1) If the amount recovered on a claim for personal injury damages does not exceed $100,000, the maximum costs for legal services provided to a party in connection with the claim are fixed as follows: (a) in the case of legal services provided to a plaintiff-maximum costs are fixed at 20% of the amount recovered or $10,000, whichever is greater." 18The amount of costs claimed by the Respondent exceeded both $10,000, and 20% of the amount recovered. A dispute emerged between the respective solicitors for the Appellant and the Respondent as to whether s 338(1) limited the costs that the Respondent could recover. 19The Respondent then began proceedings in the Supreme Court seeking a declaration that there was no such limitation. In the orders appealed against, the primary Judge made a declaration that the costs of the District Court proceedings were not regulated by s 338. Other Relevant Legislation 20The entitlement of the Respondent to have his costs paid by the Appellant arose at the time of making the consent orders, namely 22 December 2008. Thus it is in accordance with the legislation as at that date that the extent of the Respondent's entitlement to costs must be determined. 2004 LP Act 21As at 22 December 2008 Chapter 3, Part 3.2, Division 9 of the 2004 LP Act was headed "Maximum costs in personal injury matters" . It ran from s 337 to 343 inclusive. As well as s 338, that Division included the following provisions: " 337 Interpretation and application (1) In this Division: defendant means a person against whom a claim for personal injury damages is or may be made. party means plaintiff or defendant. personal injury damages has the same meaning as in Part 2 of the Civil Liability Act 2002 . plaintiff means a person who makes or is entitled to make a claim for personal injury damages. (2) This Division does not apply to the following costs: (a) costs payable to an applicant for compensation under Part 2 of the Victims Support and Rehabilitation Act 1996 in respect of the application for compensation, (b) costs for legal services provided in respect of a claim under the Motor Accidents Act 1988 or Motor Accidents Compensation Act 1999 , (c) costs for legal services provided in respect of a claim for work injury damages (as defined in the Workplace Injury Management and Workers Compensation Act 1998 ), (d) costs for legal services provided in respect of a claim for damages in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989 . ... 341 Court may order certain legal services to be excluded from maximum costs limitation A court hearing a claim for personal injury damages may by order exclude from the operation of this Division legal services provided to a party to the claim if the court is satisfied that the legal services were provided in response to any action on the claim by or on behalf of the other party to the claim that in the circumstances was not reasonably necessary for the advancement of that party's case or was intended or reasonably likely to unnecessarily delay or complicate determination of the claim. ... 343 Meaning of "amount recovered" on a claim (1) A reference in this Division to the amount recovered on a claim includes any amount paid under a compromise or settlement of the claim (whether or not legal proceedings have been instituted). (2) In determining the amount recovered on a claim for personal injury damages, no regard is to be had to any part of the amount recovered that is attributable to costs or to the addition of interest." 22As at 22 December 2008 the Civil Liability Act 2002 included the following provisions that the judge drew upon in his reasoning: " 3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person ... ... Part 2 11 Definitions In this Part: injury means personal injury and includes the following: (a) pre-natal injury, (b) impairment of a person's physical or mental condition, (c) disease. personal injury damages means damages that relate to the death of or injury to a person. 11A Application of Part (1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B. ... (3) A court cannot award damages, or interest on damages, contrary to this Part." The Structure of the Reasoning Below 23The essential steps in the reasoning of the judgment in the court below can be summarised as follows: (1) The cap under s 338 is imposed by reference to the "amount recovered on a claim for personal injury damages" . (2) Section 337 2004 LP Act provides that "personal injury damages has the same meaning as in Part 2 of the Civil Liability Act 2002 " . (3) While s 11 Civil Liability Act contains a definition of "personal injury damages" , s 11A(1) Civil Liability Act provides that Part 2 does not apply to an award of personal injury damages that is excluded from the operation of Part 2 by s 3B. (4) The Statement of Claim showed that damages were sought in respect of "a mix of causes of action" namely: "... alleged assaults being intentional torts for personal injury (both physical and psychological) and, in addition, damages on causes of action (not involving personal injury), namely in respect of alleged unlawful arrest and alleged false imprisonment." (5) While s 337(1) 2004 LP Act says that "personal injury damages" has the same meaning "as in Part 2" of the Civil Liability Act , it does not use words as precise as there would have been, if it said that personal injury damages had the meaning "as defined" or "as referred to" in s 11 Civil Liability Act . Language with that degree of precision is used in s 337(2)(c) and (d) 2004 LP Act . (6) One of the functions of the Civil Liability Act is to stipulate the manner in which damages are to be calculated for personal injury arising from some torts, but not others. (7) When "personal injury damages" for the purpose of s 338 2004 LP Act has the same meaning "as in Part 2" of the Civil Liability Act , the phrase "is properly understood as referring" ([68]) to personal injury damages the manner of recovery of which is regulated by Part 2 Civil Liability Act . (8) Thus, "personal injury damages" does not extend to damages for personal injury resulting from an intentional act that comes within s 3B(1)(a). (9) Insofar as the Respondent claimed damages for the assault, he claimed in respect of intentional acts allegedly carried out by the police officers with intent to cause injury to him, and thus by reason of step (8) in the reasoning the claim was not for "personal injury damages" . (10) Insofar as the Respondent claimed damages for false imprisonment and unlawful arrest he was not making a claim for personal injury ([80]-[83]), and thus his claim was not for "personal injury damages" . Cause of Action for "Unlawful Arrest"? 24One minor matter, not affecting questions of construction of the legislation, is that the judge, and to some extent the submissions on appeal, spoke as though unlawful arrest was itself a tort. That is not strictly correct. A lawful arrest can provide the legal justification for what would otherwise be the tort of false imprisonment. If reasonable force is used in the course of effecting a lawful arrest, that can provide a legal justification for what would otherwise be an assault or battery. However, unlawful arrest is not a tort separate to assault, battery and false imprisonment. Circumstances Affecting Delivery of this Judgment 25Since the argument occurred in this matter, this court has delivered judgment in Cross v Certain Lloyds Underwriters; Thelander v Certain Lloyds Underwriters [2011] NSWCA 136. In Cross , the Court of Appeal decided, at [60] that the cost-capping provisions of s 338 2004 LP Act excluded awards of personal injury damages resulting from intentional acts, notwithstanding that in one respect Part 2 of the Civil Liability Act applied to such awards. (That respect was that ss 15B and 18(1), which occur in Part 2, applied, by virtue of s 3B(1)(a), to civil liability for intentional torts.) If Cross were to be followed in the present case, it would have the consequence that steps 1-3 and 5-9 in the judge's reasoning as I have summarised above were correct, and that would be sufficient to result in the appeal being dismissed. 26Of the judges who decided Cross , only Hodgson JA also heard the present appeal. It had been realised, at the time of the hearing in the present case, that Cross was also awaiting hearing, and involved issues that overlap with those in the present case. Writing and delivery of judgment in the present case was delayed, with the intention that the bench that had heard this case should also hear the appeal in Cross . However, through an administrative oversight, that intention was not carried through. My absence on leave then had the consequence that it was the judgment in Cross that was first delivered. 27I have come to the view that there is a reason, that would apply even if the cost-capping provisions in s 338 2004 LP Act applied to personal injury damages awarded for intentional torts, why the present appeal should be dismissed. That reason arises from the claim made in the present case being a mixed one, seeking damages for both personal injury (in the ordinary sense of that term) arising from an assault, and for false imprisonment. Because that independent basis of decision is available I propose to follow Cross without reaching a final conclusion for myself about whether the cost-capping provisions in s 338 would have applied if the claim had been one for assault alone. When Cross is such a recent decision, any question about its correctness would more appropriately be decided by the High Court than by endeavoring to reconvene this Court with a bench of five for further argument of the present case for reconsidering Cross . 28I should say, however, that at the conclusion of the argument in this case I was of the tentative view that if there had been a recovery of damages on a claim that was solely that there had been an assault with intent to injure, the costs cap would have applied to those damages. So as not to interfere with the flow of the part of the judgment that represents my final views I will set out the considerations that support that view in the Schedule to this judgment. 29I recognise that it is difficult to see why the mischief at which the Civil Liability Act was principally aimed required there to be a cap on costs for claims for assault. Claims for assault are not a type of litigation that fits a fairly common pattern (in the way many negligence claims that result in a judgment for less than $100,000 are), with the consequence that the actual costs of many assault claims would significantly exceed the statutory cap. The objective of lessening the cost of insurance premiums would not be achieved by capping costs in them, because insurance for intentional torts like assault is usually unprocurable. Limiting the costs in actions seeking damages for deliberately inflicted bodily harm, might deter plaintiffs from bringing such claims. There is no clear reason of policy why people who inflict such harm should receive favourable treatment concerning costs. However, it is the words of the statute that are the starting point in statutory construction. While those words are to be construed in their context (which includes the objective of the legislation in question), clear words in the statute will prevail. Admittedly, I am puzzled about why Parliament would want to restrict the costs recoverable in assault actions. Nevertheless, I incline to the view that the words of the statute are sufficiently clear and it is not possible to identify a purpose that can restrict the meaning of the words of the statute. 30Further, I doubt that Producers' Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) (1944) 69 CLR 523, Producers' Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) [1948] AC 210 and Henry v Motor Accidents Insurance Board [2005] TASSC 62; (2005) 13 Tas R 340, all relied on in Cross at [29]-[35], provide assistance with the present task of construction. 31In Producers' Co-operative taxing legislation conferred an exemption on the income of a rural society registered under the Co-operation Act , "if the principal business of that rural society is the ... disposal of the agricultural products (as defined in that Act) ... of its members" . The Co-operation Act defined "agricultural products" as meaning "products of any rural industry" . It also defined "rural industry" as meaning "the cultivation or use of land for any agricultural, pastoral, dairying, or rural purpose." The taxpayer in question was a co-operative, the principal business of which was marketing butter manufactured by other co-operative societies that were its members. In the ordinary sense of the term, butter is the product of a rural industry. However, the majority held that the definition of "agricultural products" in the Co-operation Act had to be read so that "rural industry" , in its definition in the Co-operation Act , had the special meaning given to "rural industry" by the Co-operation Act . When that special meaning of "rural industry" was incorporated into the definition of "products of any rural industry" , the exemption could be seen as not applying to the taxpayer. 32It is, with respect, hardly surprising that if - Statute No. 1 says that term X has the meaning that is defined in Statute No. 2, and - Statute No. 2 says that term X is defined as meaning (a group of words that includes term Y), and - Statute No. 2 says that term Y means Z, then that meaning of Z is incorporated into the definition of term X in Statute No. 2, and thus also into the meaning of term X in Statute No. 1. But that is not the type of reasoning that is involved in taking the scope of application (not the meaning) of "personal injury damages" in Part 2 Civil Liability Act , and reading it into the definition of "personal injury damages " for the purposes of the cost-capping provisions. 33Indeed Latham CJ in Producers' Co-operative at 531 said (with the later approval of the Privy Council): "In my opinion under this provision [creating the tax exemption] it is proper to look at the Co-operation Act only so far as that Act defines that term. The words 'agricultural products' in the Income Tax Management Act are to be replaced by the definition derived from the Co-operation Act . The definition of 'agricultural products' in the Co-operation Act is 'products of any rural industry.' It is proper therefore to consider also the definition of rural industry-as I have done above. But in my opinion there should be no further investigation of the Co-operation Act for the purpose of determining the meaning of 'agricultural products.' It is only the definition of that term (ascertained in the manner stated) and not other provisions of the Co-operation Act , which is transferred to the later Act, and references in such other provisions to the term defined should not, in my opinion, be considered for the purpose of interpreting that term in the later Act." 34The passage from the judgment of Dixon J that is quoted in Cross at [31] contemplates that a term that is part of a definiens of a definition could itself be interpreted by reference to the context of the Act in which the definition occurs. That is not the exercise involved in using provisions of the Civil Liability Act that state its scope of application to ascertain the meaning of a term in the Civil Liability Act . 35I agree with the statement in [33] of Cross that: "even where the operative statute adopt the phrase 'as defined in' the source statute, it is not sufficient just to take the words of the definition from the source statute and apply them as they stand, without any regard for their context in the source statute". However that does not mean that all ways in which one might use such context are legitimate. 36Henry involved the construction of a provision of the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) that denied the availability of certain benefits in respect of personal injury "where the personal injury results from a motor accident occurring in a motor vehicle race ... in which that person was taking part". The definition section of that Act said "'motor vehicle race' has the same meaning as it has for the purposes of Division III of Part IV of the Police Offences Act 1935 ." A definition in the relevant Part of the Police Offences Act provided that "motor vehicle race" included: " .... the use of any motor-vehicle in any practice where or over any part of the course on which any such race, competition or test is to take place with a view to the participation in that race, competition, or test of that motor vehicle or the person so using it." 37The Appellant intended to take part in a motor vehicle race to be held on public roads in Tasmania later in the year in which he was injured. He was injured when a motor vehicle that he was driving over the proposed course of the race was involved in an accident. That motor vehicle was a different one to the one that he was planning to use in the race. There was no suggestion that his manner of driving was other than that of an ordinary member of the public driving on public roads. Blow J (with whom Crawford JA agreed) considered the evident purposes of the provisions governing motor vehicle races in the Police Offences Act , and held at [34] that, by reference to those purposes, the expression "the use of any motor vehicle in any practice ..." did not extend to " pre-race reconnaissance driving during which no aspect of racing driving is rehearsed or undertaken" . 38That reasoning is an example of the type of reasoning approved by Dixon J in Producers' Co-operative . It is not an example of the type of reasoning involved in using the scope of application of Part 2 Civil Liability Act to ascertain the meaning of "personal injury damages" in Part 2 of that Act. 39I also have some misgivings about the way in which the judges in Cross appear to have treated the exclusions in s 198C(2) 1987 LP Act as inserted only for abundance of caution (see at [58] and [78]). To have arrived at that construction of s 198C(2) on the basis of a construction already arrived at of s 198C(1) appears somewhat at odds with the principles that one construes legislation as a whole, and seeks to give each provision work to do. 40The Federal Court has had occasion to consider what the situation should be, as a matter of precedent, if two differently constituted Full Courts reach differing decisions on the one point at much the same time: Minister for Immigration and Multicultural and Indigenous Affairs v Hicks [2004] FCAFC 114; (2004) 138 FCR 475. The majority (Hill J at [4] and [29] and Hely J at [89]-[90]) held that the earlier decision should be followed unless the later court thought it was clearly wrong, though Carr J at [33]-[35] expressed a different view. The view of the majority in Hicks accords with the spirit of the remarks of the High Court in Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89 at [135], even though the literal words of those remarks are not applicable to the present situation. In circumstances where I am not of the view that the decision in Cross is clearly wrong, that provides an additional reason, beyond those I have mentioned at [27], for following the decision in Cross . However, the unusualness of the situation that has arisen in the present case, the importance of the point of construction involved, and the possibility that the matter might go further, have led me to include the Schedule in this judgment. Failure to Prove Intent to Cause Injury? 41The primary submission of Mr Simpkins SC, counsel for the Appellant, was that s 3B Civil Liability Act did not bear upon whether a claim was one "for personal injury damages" for the purpose of s 338 2004 LP Act . He submitted that, when s 337 2004 LP Act provided that "personal injury damages has the same meaning as in Part 2 of the Civil Liability Act 2002" it referred to the meaning as stated by s 11 Civil Liability Act , not to the scope of application of Part 2 as set out in s 11A. The difference between the meaning of a word and the scope of application of a legal provision is recognised in ss 3 and 9 of the Civil Liability Act as originally passed; in the contrast between ss 11 and 11A that were incorporated into that Act by the Civil Liability Amendment (Personal Responsibility) Act 2002 (" the Personal Responsibility Act "); and in many of the numerous Parts that were added to the Civil Liability Act by the Personal Responsibility Act . These provisions all provide textual support for Mr Simpkins' submission. However, following Cross I am obliged to reject that submission. 42Mr Simpkins has a fallback argument, which he submits applies even if his primary submission is incorrect. It is that the decision below is incorrect because the judge failed to find that the intentional acts of the police officers were "done ... with intent to cause injury" . He submits that such a finding would be required before s 3B(1)(a) would exclude the operation of Part 2, and there was no evidence before the judge on which such a finding could have been made. He submits that there is "no pleading or other process by which the issue of intention to cause injury is determined in favour of the Respondent" , and nor is there any issue estoppel to that effect, as intention to cause injury is not a necessary element of any of the causes of action that had been pleaded. 43In my view this argument does not provide an avenue for success on the Appellant's part in this appeal. 44One reason is that, if one takes the decision in Cross at face value, all intentional torts are excluded from the operation of the cost-capping provisions. Such a result can be seen in the judgment of Basten JA (with whom Hodgson JA agreed) at [59] and in the judgment of Sackville AJA at [79]. This result would apparently obtain regardless of whether the intentional torts fit within the words of s 3B(1)(a) Civil Liability Act : "civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person". 45Even if (as I suspect) that literal reading of Cross was not what my brothers who decided Cross intended, there is another reason why the argument fails. Section 338 2004 LP Act operates by reference to a characterisation of a claim as being for personal injury damages, and the amount that is actually recovered on that claim. Whether a claim is one "for personal injury damages" is dependent at least initially upon the allegations that the claimant makes to advance the claim. Sections 337 and 338 2004 LP Act are capable of applying to a claim (as s 343(1) 2004 LP Act makes clear) even if legal proceedings have not been instituted. If legal proceedings had not been instituted, a claim would be characterised by reference to the documents (such as a solicitor's letter before action) or conversations in which the claim was made. If litigation had been commenced, the terms of the statement of claim, and any particulars provided, could enter into the characterisation of the claim. Still further material, such as Dr Smith's report in the present case ([15] above), might become relevant to the characterisation of the claim as the litigation advanced. 46By contrast, s 3B Civil Liability Act is cast in terms of when the provisions of that Act apply to "civil liability" . Accepting, following Cross , that s 3B is relevant to the characterisation of a claim as one for "personal injury damages" for the purpose of s 338 2004 LP Act , there would be no need for that characterisation to proceed by reference to judicial findings concerning which of the facts alleged in a case had actually been proved. At least in relation to a claim that had not been decided by a court, characterisation of the claim must proceed other than by reference to a judge's findings. As the Respondent's action in the District Court settled before it was decided by a court, it is not fatal to the Respondent's case that a judge (either the judge in the District Court, or the judge in the Supreme Court proceedings from which this appeal is brought) has not made a finding that in fact the acts of the police officers were carried out with intent to cause injury. It would be enough, for s 338 to apply, if the Respondent claimed in the District Court (perhaps in a way that was not colourable or clearly unsustainable) that the Appellant had a civil liability to him for an intentional act done with intent to cause injury. 47There are other problems with the Appellant's submission. One is that, as the entitlement of the Respondent to costs arose when the consent orders were made in the District Court, the extent of that entitlement could not be affected by any decision, or failure to decide, of the judge who heard the Supreme Court proceedings at a later date. Another is that if it contends that the judge in the Supreme Court proceedings did not make a finding that the Respondent's claim was that the acts of the police officers were carried out with intent to cause injury, it is mistaken. In [72] of the judgment below the judge said: "The damages under the consent Judgment dated 19 December 2008 constituted monetary compensation, inter alia, in respect of the assault claims, that is, in respect of intentional acts allegedly carried out by the police officers in question with intent to cause injury to the plaintiff. The contrary understandably was not argued." (emphasis added) 48The judge in the Supreme Court was right in saying that "the contrary ... was not argued" . Early in his address in chief, counsel for the Respondent in the court below said: "... the plaintiff's claim falls within the meaning of section 3B(a). I don't think there is any dispute that the claim as framed by the plaintiff in its statement of claim was indeed in respect of a civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death. In other words, the plaintiff's claim is excluded from the operation the Act, not just Part 2 but the whole Act." 49That proposition was never contested by counsel for the Appellant in the court below (who was not the counsel who appeared in this Court). 50Mr McKeand SC, counsel for the Respondent, submits that if it were necessary (contrary to the conclusion I have reached) for the judge in the Supreme Court proceedings to make a finding of an actual intention to cause injury, it would not be open to the Appellant to argue on this appeal that either (a) the judge made no such finding, or (b) the evidence did not leave it open to the judge to make such a finding. Mr McKeand submits that had the point been taken below by the Appellant, the Respondent could easily have adduced evidence of the manner in which the torts were committed and sought the findings of intentional acts done with intent to cause injury. 51I accept that even if, contrary to my view, it were necessary for the judge in the Supreme Court proceedings to make a finding of an actual intention to cause injury, the Appellant could not argue on this appeal that it was not open to the primary judge to find that the intentional acts were done with intent to cause injury. I reach that conclusion both upon the basis that the course of the hearing in the court below may well have been different if the point had been raised below ( Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438), and on the basis that, the trial having been conducted on a particular basis in the court below, it would be contrary to the interests of justice to allow a new point to be taken on appeal: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631. 52Mr McKeand also submits that, in any event, the plaintiff's claim, as made in the District Court, was correctly characterised as one that the assaults were intentional acts done with intent to cause injury. He submits that damage that is the natural and probable consequence of a tortious act is presumed to have been intended by the tortfeasor: Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 at [13], [14], [73], [75]-[76], [114]; TCN Channel 9 Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 at [100]. He submits that the Respondent's claim was for damages caused by assault, unlawful arrest and false imprisonment, all of which were intentional torts. The pleading, insofar as it stated the manner in which the assaults had occurred, alleged actions on the part of the police that were of a kind that ordinarily would injure a person who was subjected to them. The particulars alleged that the Respondent had actually sustained consequences that included personal injury. Thus, properly understood, the Statement of Claim alleges an assault that is an intentional act done with intent to cause injury. I accept that submission. 53So far as the allegation of false imprisonment is concerned, a fair reading of paragraph 7 of the Statement of Claim is that the Respondent was alleging that, while handcuffed, he was bodily placed into the back of a police wagon and kept there against his will for some minutes. That is the type of action that would ordinarily be intended to subject the person involved to a deprivation of liberty. If deprivation of liberty is "injury" within s 3B(1), the allegation of false imprisonment is also of an intentional act done with intent to cause injury. I do not need to express a final view on whether deprivation of liberty is "injury" within s 3B(1) in light of my conclusions about the effect of the present claim being a mixed one, though State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 at [11] per Spigelman CJ, [218] per Basten JA leaves open the possibility that it is. Effect of Inclusion of Allegation of False Imprisonment 54Before the limitation on costs in s 338(1) can apply, one must be able to identify a particular "amount recovered on a claim for personal injury damages" . It is not enough, to attract the limitation on costs, that an indivisible amount is recovered on a claim that is partly for personal injury damages, and partly for something else. 55The fact that I am following Cross has this consequence. To the extent that the Respondent sought damages claimed to result from an intentional tort that was done with intent to cause injury, his claim was not one "for personal injury damages" as defined. Thus the amount he recovered could not be characterised as on a claim " for personal injury damages ". That is so regardless of whether, insofar as his claim was for false imprisonment, it would have been one for personal injury damages if the false imprisonment cause of action had been the only claim made. 56However, even if the Respondent's cause of action for assault would have been a " claim for personal injury damages " if made on its own, the inclusion of the cause of action for false imprisonment would have had the consequence that the claim as a whole was not one for " personal injury damages ". 57To explain why, it is convenient to start with some general observations about the tort of false imprisonment. It is uncontroversial that an invalid purported arrest can result in false imprisonment: Christie v Leachinsky [1947] AC 573 at 587-8; Johnstone v State of New South Wales [2010] NSWCA 70 at [30], [39]. In State of New South Wales v Radford [2010] NSWCA 276 Sackville AJA said at [78] (Beazley and Macfarlan JJA agreeing): "False imprisonment is plainly one category of trespass to the person." Unlike the situation concerning an action on the case, damages can be awarded in an action for trespass as vindication of the fact that a right of the plaintiff has been infringed, even if the plaintiff does not prove any special damage: New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 at [30]; Plenty v Dillon (1991) 171 CLR 635 at 645. 58In Watson v Marshall & Cade (1971) 124 CLR 621 Walsh J, sitting in the High Court's original jurisdiction, said at 632, concerning a claim for false imprisonment: "The failure to prove any actual financial loss does not mean that the plaintiff should recover nothing. The damages are at large. An interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be taken into account." 59An appeal to the Full Court comprised of Barwick CJ, McTiernan, Menzies and Stephen JJ was dismissed. In the course of dismissing a cross-appeal, in which the plaintiff in the court below contended that the damages awarded to him were inadequate, Stephen J (with whom Menzies J agreed) at 653 adopted Walsh J's reasons "as to the matters to be taken into account in assessing the plaintiff's damages" . While Barwick CJ (with whom McTiernan J agreed) also dismissed the cross-appeal, his reasons did not specifically comment on the reasons of Walsh J. Even so, the reasons of Walsh J, approved obiter by two members of a Full Court, provide significant persuasive authority. 60In Baltic Shipping v Dillon (1993) 176 CLR 344 Mason CJ at 359-360 confirmed the availability of damages for injury to a plaintiff's feelings caused by false imprisonment. Toohey J at 383 and Gaudron J at 387, relevantly agreed. 61Thus, damages recovered for false imprisonment can compensate for the fact that one has been deprived of liberty, and suffered a loss of dignity and hurt feelings. In their ordinary meaning, loss of dignity and hurt feelings can overlap. However the focus of loss of dignity is on how the plaintiff appears in the eyes of others as a result of being subjected to the false imprisonment, while the focus of injured feelings is on the plaintiff's subjective reaction to the false imprisonment. 62At least when the hurt feelings do not amount to a psychological condition, the fact of deprivation of liberty, loss of dignity and hurt feelings do not result in an award of damages for "personal injury" as ordinarily understood: State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 at [21] per Spigelman CJ. The particulars to the Respondent's claim showed that he sought compensatory damages for deprivation of liberty, humiliation, loss of dignity and injured feelings. While the claim was for injured feelings "including psychological trauma" , the claim for injured feelings was not limited to psychological trauma. 63The Respondent's claim also included a contention that he should receive aggravated damages. Aggravated damages can be awarded for false imprisonment if the plaintiff can show that "the conduct of the defendant was neither bona fide nor justifiable" : Spautz v Butterworth (1996) 41 NSWLR 1 at 17-18 per Clarke JA (Priestley and Beazley JJA agreeing); State of NSW v Delly [2007] NSWCA 303; (2007) Aust Torts Reports 81-920 at [20] per Ipp JA. In Delly , Basten JA at [106]-[111] was not prepared to decide that there was such a limitation on the availability of aggravated damages for false imprisonment. As Tobias JA would have set aside the award of aggravated damages in the court below, it was unnecessary for him to consider this question of principle. 64The Respondent's claim also included a contention that he should receive exemplary damages. Exemplary damages are in principle possible for false imprisonment: Delly at [26] per Ipp JA, [91], [96] per Tobias JA. 65Mr Simpkins SC, counsel for the Appellant, accepted that not only was there a reference to false imprisonment in the heading to para 7 of the Statement of Claim, but also that it was plain: "from the drafting of the statement of claim that intermingled with those allegations [of serious assaults] were allegations essentially related to him being deprived of his liberty at least for some period of time. I think I have to accept that. So we end up with an intermingled claim ..." (T 11) 66Mr Simpkins submits that where there is a claim of false imprisonment, as part of which it is contended that the plaintiff has, in consequence of the false imprisonment, sustained some effect on his or her mental state, that claim is for personal injury damages. I do not accept that claiming that one of the consequences of a false imprisonment is the suffering of a personal injury, is sufficient to characterise the entire claim for false imprisonment as one for "personal injury damages" . 67I recognise that, to the extent to which the Respondent claimed compensatory and aggravated damages for the alleged false imprisonment, by reason of developing psychological impairment, there may be room for argument whether such damages, if ultimately awarded, would have been "personal injury damages" within the meaning of the Civil Liability Act . The extension of the ordinary meaning of "injury" to (relevantly) "impairment of a person's mental condition" effected by s 11 Civil Liability Act could arguably have the effect that damages for anxiety and distress can be "personal injury damages" within the meaning of s 11: cf, eg, Ibbett [2005] NSWCA 445 at [124]-[125] per Ipp JA, [212], [216] per Basten JA; State of NSW v Corby [2010] NSWCA 27; (2010) 76 NSWLR 439 at [41] per Basten JA (Beazley and Tobias JJA agreeing). It seems more doubtful that damages for humiliation and injured feelings, not amounting to a psychological injury or something that caused the plaintiff's body or mind to operate less well, would if awarded be " personal injury damages ". An argument might also be available to the effect that exemplary damages, if awarded, were also "personal injury damages" . That argument seems doubtful, given that exemplary damages are awarded not as compensation but for other purposes (including punishment of the defendant for a high-handed disregard of the plaintiff's rights, deterrence of the defendant to prevent him or her from repeating such conduct, and marking the condemnation of the court for the defendant's conduct: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471; Lamb v Cotogno (1987) 164 CLR 1 at 8-9). It is unnecessary to decide those questions, because the claim the Respondent brought sought damages, at least in part, for having been wrongfully deprived of his liberty, and loss of dignity. It is not submitted that such damages, if awarded, were bound to be negligible, and thus could be ignored for the purpose of deciding whether the Respondent's claim was one for "personal injury damages" . 68The judgment in the court below was for a single sum of money, not allocated as between the different causes of action on which the Respondent sued, or the different heads of damage that he claimed. Because he claimed at least some damages that were not " damages for personal injury " , it is not possible to characterise the settlement sum that he received as an " amount recovered on a claim for personal injury damages " . Thus the cap of recoverable costs under s 338 2004 LP Act does not apply. The situation bears some analogy to the way in which a single undissected sum that a taxpayer receives in settlement of a claim for compensation for loss of both capital and income items could not be characterised as income, for the purpose of the Income Tax Assessment Act 1936 (Cth) , in the form it had at the time of decision in McLaurin v Federal Commissioner of Taxation (1961) 104 CLR 381 and Allsop v Federal Commissioner of Taxation (1965) 113 CLR 341. It is unnecessary to enter into the question of whether, if the matter had proceeded to trial and the judge's reasons for judgment made clear precisely how many dollars had been awarded for each of the causes of action alleged, and for each of the heads of damage claimed, s 338 could then apply in relation to those amounts of money, in the total ultimate amount, that were attributable to heads of damage that were able to be described as "personal injury damages" . 69In Cross at [56] Basten JA (Hodgson JA and Sackville AJA agreeing) said: "A cost-capping provision can only operate with respect to 'the amount recovered on a claim for personal injury damages': it cannot operate with respect to part of the claim." I respectfully agree. 70Mr Simpkins drew our attention to Coffey v State of Queensland [2010] QCA 291. In Coffey the Queensland Court of Appeal considered a mixed claim of assault, false imprisonment and malicious prosecution. The Civil Liability Act 2003 (Qld) defined "personal injury damages" as "damages that relate to the death of or injury to a person" - ie using words identical to those of s 11 Civil Liability Act . The Court considered the claim for the purpose of deciding the applicability of s 73 of the Queensland statute, a provision that has no analogue in the New South Wales legislation. It provides: "A proceeding in a court based on a claim for personal injury damages must be decided by the court sitting without a jury." Fraser JA (Muir JA and Cullinane J agreeing) held at [22]-[23] that a jury trial was excluded even where a claim for damages relating to personal injury was only one of several bases of the proceeding. In reaching that conclusion his Honour took into account the purpose of the particular statutory provision. Unlike the situation in the NSW Act, the definition of "personal injury damages" in the Queensland statute appears in a dictionary that applies to the whole of the Act. There are numerous other respects in which the structures of the Queensland Act and the NSW Act are different. In these circumstances, and when Coffey concerns a different phrase to "amount recovered on a claim for personal injury damages", and when the phrase being construed in Coffey occurs in a statutory provision that has a different objective to the cap on costs now under consideration, I do not find Coffey helpful for present purposes. Orders 71I propose the following orders: 1. Grant leave to appeal, on condition that the Applicant pay the Respondent's costs in any event, and that the Applicant not seek to disturb the costs order in the Supreme Court below. 2. Direct the Applicant to file, within seven days of the date of delivery of these reasons, a Notice of Appeal in the form of the draft contained in the White Book. 3. Appeal dismissed with costs. SCHEDULE 72As the meaning of a statutory provision is the meaning that it had when the Parliament first enacted it, unless something has since happened to alter that meaning, the meaning of the provisions now in dispute can be ascertained by tracing the evolution of the statutory provisions from their initial enactment and through subsequent amendments. By adopting this methodology, it should be possible to identify both the initial meaning, and whether there are any (and if so what) supervening events that change that initial meaning. Civil Liability Act - Original Form 73When the Civil Liability Act 2002 was first introduced, it was divided into only two Parts. Section 3, contained in Part 1, included: "In this Act: ... damages includes any form of monetary compensation. fault includes an act or omission. injury means personal or bodily injury, and includes: (a) pre-natal injury, and (b) psychological or psychiatric injury, and (c) disease. personal injury damages means damages that relate to the death of or injury to a person caused by the fault of another person." 74Part 2 was headed "Personal injury damages" . It ran from s 9 to s 22. Section 9 was within Division 1 of Part 2. Section 9 provided: "(1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part. (2) The following awards of damages are excluded from the operation of this Part: (a) an award where the fault concerned is an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct, (b) an award to which Part 6 of the Motor Accidents Act 1988 applies or to which Chapter 5 of the Motor Accidents Compensation Act 1999 applies (including an award to and in respect of which that Chapter applies pursuant to section 121 (Application of common law damages for motor accidents to railway and other public transport accidents) of the Transport Administration Act 1988 ), (c) an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies, (d) an award in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989 , (e) an award comprising compensation under the Workers Compensation Act 1987 , the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 , the Workers' Compensation (Dust Diseases) Act 1942 , the Victims Support and Rehabilitation Act 1996 or the Anti-Discrimination Act 1977 or a benefit payable under the Sporting Injuries Insurance Act 1978 , (f) a sum required or authorised to be paid under an industrial instrument within the meaning of the Industrial Relations Act 1996 , (g) a sum payable under a superannuation scheme or any life or other insurance policy, (h) an award of damages of a class that is excluded by the regulations from the operation of this Part. (3) This Part extends to an award of personal injury damages even if the damages are recovered in an action for breach of contract or in any other action. 75The remaining provisions of Division 1 of Part 2 prohibited a court from awarding damages or interest on damages to a claimant contrary to Part 2 (s 10), and provided that the Act did not itself create or confer any civil action for the recovery of damages in respect of an injury or death caused by the fault of a person (s 11). 76The provisions of the other Divisions of Part 2 included matters relevant to the calculation of damages (ss 12, 13(1) and (2), 14, 15, 16 and 17). Some provisions (ss 15(3), 16(1) and 21) prohibited the award of damages for certain heads of damage in certain circumstances. Other provisions dealt with matters consequential upon the calculation of damages. One such consequential matter was the manner of calculation of pre-judgment interest (s 18). Another was the manner of operation of the law concerning contribution between an award to which Part 2 applied and an award to which Part 2 did not apply (s 19). Section 20 permitted the contributory negligence of a deceased person to be taken into account in a claim under the Compensation to Relatives Act 1897 (contrary to the position that had previously applied under s 13 Law Reform (Miscellaneous Provisions) Act 1965 ). Section 22 made provision for the court to make a structured settlement award by consent. Section 13(3) was a direction to courts about the manner in which they should write their reasons for judgment, if an award for future economic loss was made. 77Section 18(1) provided: "A court cannot order the payment of interest on damages awarded for non-economic loss or gratuitous attendant care services (as defined in section 15)." 78Schedule 1 to the Act contained some savings and transitional provisions. Clause 2(1) of that Schedule stated: "Part 2 of this Act extends to an award of personal injury damages that relates to an injury received, or to a death resulting from an injury received, whether before or after the commencement of this Act." Division 5B of 1987 LP Act 79Sections 338, 341 and 343 of the 2004 LP Act are part of Division 9 of Part 3.2 of that Act (ss 337-343). They repeat verbatim provisions that were first introduced into legislation as, respectively, ss 198D, 198G and 198I Legal Profession Act 1987 (" 1987 LP Act "). Those provisions and s 198C 1987 LP Act were inserted into the 1987 LP Act as part of a new Division 5B, which ran from ss 198C to 198I inclusive. That Division was inserted into the 1987 LP Act by Schedule 2 of the Civil Liability Act 2002 . Division 5B was part of a single legislative scheme enacted by the Civil Liability Act 2002. 80When s 198C of the 1987 LP Act was first enacted it was identical to s 337 2004 LP Act apart from one difference. That difference was in the definition of "personal injury damages" . That definition, as originally enacted in s 198C, was: "personal injury damages" has the same meaning as in the Civil Liability Act 2002 ." - ie, there was no restriction to the meaning "as in Part 2" Civil Liability Act . Section 198C when first enacted contained a subsection (2), in identical terms to the present s 337(2) 2004 LP Act (set out at [21] above) Construction of Costs Cap as Originally Enacted 81When the Civil Liability Act was first enacted, the meaning of "personal injury damages" in that Act was the meaning it was given by s 3. The chapeau to s 3 explicitly said that the definitions that followed applied "in this Act". The terms of s 9(2) recognised that there were some awards of personal injury damages to which the provisions of Part 2 of the Act applied, and some awards of personal injury damages to which that Part did not apply. 82In clause 2(1) of Schedule 1 ([78] above), the meaning of "personal injury damages" was the meaning that that expression was given by clause 3. In applying clause 2(1) it was necessary that one be able to identify what was an "award of personal injury damages that relates to an injury received, or to a death resulting from an injury received, whether before or after the commencement of this Act" independently of the terms of Part 2, because the point of clause 2(1) was to identify some of the awards to which Part 2 applies. 83Subject to one matter, the cap that s 198D 1987 LP Act imposed on recoverable costs applied to all claims for personal injury damages, within the meaning of "personal injury damages" in the definition in s 3 Civil Liability Act . That one matter was that costs that fell within s 198C(2) 1987 LP Act were not subjected to the controls of Division 5B. Thus, under s 198D(1) 1987 LP Act the limitation on costs would apply whenever the amount recovered on a claim for personal injury damages, within that meaning, did not exceed $100,000, unless the costs in question fell within s 198C(2). The Exceptions Created by 1987 LP Act to the Costs Cap 84The exceptions from the operation of Division 5B 1987 LP Act , contained in s 198C(2) 1987 LP Act , were cast in language appropriate to the cap on costs operating by reference to "the amount recovered on a claim for personal injury damages" . The word "claim" appears explicitly in s 198C(2)(b), (c) and (d). While the word "claim" does not appear in s 198C(2)(a) the words "costs payable to an applicant ... in respect of the application ..." fairly clearly covers the same idea, though recognising that the Victims Support And Rehabilitation Act 1996 established a scheme of statutory compensation that, under s 25 of that Act, was initiated by the making of an application to the Director, Victim Services. 85It is hard to see any patterns in the types of costs identified in s 198C(2) by virtue of which those costs were excluded from the controls. We sought assistance on this topic from Mr Simpkins SC and Mr Villa, counsel for the Appellant. In a helpful memo they pointed out that some of the costs exempted from the controls by s 198C(2) were ones concerning which there was already a separate legislative control in place on the costs that were recoverable. Thus, - The costs payable to an applicant for compensation under the Victims Support and Rehabilitation Act 1996 in respect of the application were governed by s 35 of that Act. It conferred on an applicant for statutory compensation an entitlement to be paid costs in respect of the application in accordance with the scale of costs prescribed under the rules, conferred on the Tribunal or compensation assessor power to award costs in excess of the amount prescribed, but otherwise forbad a legal practitioner from charging more than the scale costs. - The costs payable for claims under the Motor Accidents Compensation Act 1999 were controlled by Chapter 6 (ss 147-156) of that Act, and the Motor Accidents Compensation Regulation (No 2) 1999 . - The Workplace Injury Management and Workers Compensation Act 1998 (" WIM Act ") defined "work injury damages" in s 4, by reference to s 250, as: "damages recoverable from a worker's employer in respect of: (a) an injury to the worker caused by the negligence or other tort of the employer, or (b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer, whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages." 86The WIM Act imposed control on costs for "existing claim matters" (ie claims for compensation made before the commencement of s 250 on 1 January 2002) in ss 111A-116. It imposed controls on costs for "new claim matters" (ie claims for compensation made after 1 January 2002), whether relating to compensation or work injury damages, in ss 332-348. 87However, there do not appear to be any controls independent of s 198C on the costs of claims under the Motor Accidents Act 1988 or on a claim for damages in proceedings of the kind referred to in s 11 Dust Diseases Tribunal Act 1989 . When a clear purpose of the list of exemptions in s 198C(2) 1987 LP Act is not apparent, the Court's task is to apply the words of s 198C(2) without any assistance from an understanding of their purpose. One Effect of the Civil Liability Act on Operation of the Costs Cap 88Whether the amount recovered on a claim for personal injury damages (within the meaning of the Civil Liability Act ) actually exceeded $100,000 would depend to some extent on whether the provisions for calculation of personal injury damages set out in Part 2 Civil Liability Act applied to that particular claim. If the claim was resolved by a court's decision, the provisions of Part 2 Civil Liability Act would be applied by the judge in assessing quantum for those claims for personal injury damages that were not excluded from the operation of Part 2 by s 9(2). If the claim was resolved by settlement, the provisions of Part 2 Civil Liability Act would still, in the ordinary case, have an effect on the settlement sum for those claims for personal injury damages that were not excluded from the operation of Part 2 by s 9(2). It would arise through the negotiating parties taking into account the amount that they forecast a court would award if the case went to trial and liability were established. That these practical effects of Part 2 Civil Liability Act operated on the costs cap did not affect the meaning of "personal injury damages" for the purpose of that costs cap. The Exclusions in Section 9(2) Civil Liability Act 89Section 9(2) Civil Liability Act had its own list of exclusions from when Part 2 Civil Liability Act would apply. By contrast with s 198C(2) 1987 LP Act , the list in s 9(2) Civil Liability Act of awards of damages that were excluded from the operation of Part 2 of that Act was cast in language appropriate to an award that was actually being made, or (so far as the benefit payable under the Sporting Injuries Insurance Act 1978 in s 9(2)(e) is concerned, or the amounts referred to in s 9(2)(f) and (g) are concerned), to an amount of money that was actually payable. (The inclusion in the list of exclusions in s 9(2) of the benefit payable under the Sporting Injuries Insurance Act , and the amounts under s 9(2)(f) and (g) reflect the width of the definition of "damages" in s 3 Civil Liability Act , as including any form of monetary compensation. As "damages" is part of the definiendum in the definition of "personal injury damages" in s 3, the width of definition of "damages" would necessarily flow into the definition of "personal injury damages" .) Relationship Between Exclusions in Section 198C(2) 1987 LP Act and Exclusions in Section 9(2) Civil Liability Act 90There were numerous Acts or sources of entitlement to payment that were listed in s 9(2) Civil Liability Act , that did not appear in s 198C(2) 1987 LP Act . Of the four Acts the costs of claims or applications under which were listed in s 198C(2) 1987 LP Act , one, the WIM Act , did not appear in s 9(2) Civil Liability Act . Thus, the relationship between the Acts identified in the two lists of exclusions was one of intersection. 91That the Acts concerning which there were exceptions to s 9 Civil Liability Act only partly overlapped with the Acts concerning which there were exceptions to s 198C 1987 LP Act emphasises the different roles that the respective sections play. Section 198C(2) identifies the claims for personal injury damages (within the meaning set out by s 3 Civil Liability Act ) concerning which the costs are not subjected to the controls of s 198D. Section 9(2) identifies the types of awards of personal injury damages (within the meaning set out by s 3 Civil Liability Act ) that are not subjected to the requirements of Part 2 Civil Liability Act . That there is either of these types of exceptions does not alter the meaning of "personal injury damages" in the Civil Liability Act . 92Further, the exceptions contained in s 198C(2) would apply, pursuant to s 198I, even if there was a compromise or settlement of a claim. It would also apply if a claim was made that yielded nothing to the claimant, unless an exception contained in s 198E (relating to recovery of costs payable as between legal practitioner and client pursuant to a costs agreement that complies with Part 11, Division 3 1987 LP Act ) applied. In these ways, the exclusions in s 198C(2) 1987 LP Act , and s 9(2) Civil Liability Act each had quite distinct roles to play, and were not in conflict with each other. Civil Liability Act - Subsequent Amendments - The Personal Responsibility Act 93On 6 December 2002 the Civil Liability Amendment (Personal Responsibility) Act 2002 (" the Personal Responsibility Act ") came into force. This made amendments to both the Civil Liability Act 2002 , and to the 1987 LP Act . The first relevant amendment to the Civil Liability Act was that the definition of "damages" in s 3 was replaced: "Omit the definition of damages . Insert instead: damages includes any form of monetary compensation but does not include: (a) any payment authorised or required to be made under a State industrial instrument, or (b) any payment authorised or required to be made under a superannuation scheme, or (d) any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy." (Schedule 2[1]) 94The definitions of "fault" , "injury" , and "personal injury damages" were omitted from Section 3 (Schedule 2[2]). 95A new section 3B was inserted into Part 1 Civil Liability Act , stating, relevantly: "(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct-the whole Act except Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, (b) civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989 -the whole Act, (c) civil liability relating to an award of personal injury damages (within the meaning of Part 2) where the injury or death concerned resulted from smoking or other use of tobacco products-the whole Act, (d) civil liability relating to an award to which Part 6 of the Motor Accidents Act 1988 applies-the whole Act except the provisions that subsection (2) provides apply to motor accidents, (e) civil liability relating to an award to which Chapter 5 of the Motor Accidents Compensation Act 1999 applies (including an award to and in respect of which that Chapter applies pursuant to section 121 (Application of common law damages for motor accidents to railway and other public transport accidents) of the Transport Administration Act 1988 )-the whole Act except the provisions that subsection (2) provides apply to motor accidents, (f) civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies-the whole Act, (g) civil liability for compensation under the Workers Compensation Act 1987 , the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 , the Workers' Compensation (Dust Diseases) Act 1942 , the Victims Support and Rehabilitation Act 1996 or the Anti-Discrimination Act 1977 or a benefit payable under the Sporting Injuries Insurance Act 1978 -the whole Act." (Schedule 2[4]) 96Schedule 2[5] omitted the previous ss 9-11, and inserted instead: "11 Definitions In this Part: injury means personal injury and includes the following: (a) pre-natal injury, (b) impairment of a person's physical or mental condition, (c) disease. personal injury damages means damages that relate to the death of or injury to a person. 11A Application of Part (1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B. (2) This Part applies regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise. (3) A court cannot award damages, or interest on damages, contrary to this Part." 97While the original s 9(2) was repealed, the effect it had had, of removing certain listed types of awards of damages from the controls imposed by the Civil Liability Act , was achieved by s 3B. However, s 3B was wider than the former s 9(2). Section 9(2) had been concerned with nothing but identifying awards of damages which were excluded from the operation of Part 2 of the Civil Liability Act , while s 3B excluded the provisions of either the whole Act, or the whole Act apart from identified provisions (not just Part 2). Further, s 3B operated concerning the itemised types of "civil liability" (not just awards of damages). 98That s 3B excluded the provisions of the whole Act (or the whole Act apart from identified provisions of it) from the itemised types of civil liability was important because Part 1A Civil Liability Act , introduced by the Personal Responsibility Act , set out some general principles for ascertaining when liability existed for all claims for damages for harm resulting from negligence. Part 1A operated in circumstances other than where there was a claim for "personal injury damages" , as defined in the new s 11 Civil Liability Act . As well, the Personal Responsibility Act introduced into the Civil Liability Act new provisions concerning proportionate liability (Part 4), liability of public and other authorities (Part 5), intoxication (Part 6), self defence and recovery by criminals (Part 7), good samaritans (Part 8), volunteers (Part 9) and apologies (Part 10). All of those new provisions were capable of applying to matters other than civil liability for personal injury damages. 99However, s 3B had an effect that was the same as that of the former s 9(2) in identifying circumstances in which the provisions of the Civil Liability Act would not apply to an award of personal injury damages. The manner in which s 9(2) compared with s 3B, in application to awards of personal injury damages, is shown in the following table. S 9(2) S 3B (a) Substantially reproduced in (a), though subject to the exclusion from the exception of the new Part 7 (Self defence and recovery by criminals) (b) Substantially reproduced in (d) and (e), but with an exclusion from the exception of certain provisions of the Civil Liability Act identified in s 3B(2) (some of which were provisions relating to assessment of personal injury damages) (c) Reproduced in (f) (d) Reproduced in (b) (e) Reproduced in (g) (f) Not included in s 3B, but in substance added as exemption (a) to the definition of "damages" in s 3 (g) Not included in s 3B, but in substance added as exemptions (b) and (c) to the definition of "damages" in s 3 (h) Substantially reproduced, with some elaboration, in s 3B(3) (c) (smoking and tobacco exception) - totally new 100The only amendment that the Personal Responsibility Act made (by Schedule 4 cl 4.5) to the 1987 LP Act was, as mentioned before, that the definition of "personal injury damages" in s 198C was altered to read: "personal injury damages has the same meaning as in Part 2 of the Civil Liability Act 2002 ", - ie, exactly the same form as the definition in s 337(1) 2004 LP Act . 101If one were to pause there, and consider how the limitation on recoverability of costs in personal injury matters would operate as soon as the Personal Responsibility Act came into operation, in my tentative view it would operate in exactly the same way as it operated prior to the enactment of the Personal Responsibility Act . When s 198C was first introduced into the 1987 LP Act , and provided that "personal injury damages has the same meaning as in the Civil Liability Act " , that meaning was ascertained from the definition of "personal injury damages" in s 3 Civil Liability Act . When the definition of "personal injury damages" was moved from s 3 Civil Liability Act into Part 2 Civil Liability Act , there is no reason to believe that Parliament intended the change in the definition of "personal injury damages" in s 198C 1987 LP Act to do anything other than recognise that change in location of the definition. 102On that construction, the exceptions identified in s 198C(2) to the application of Division 5A 1987 LP Act have the same role to play as they formerly had to play. Further, insofar as s 3B Civil Liability Act applied to claims for personal injury damages, it had the same role as s 9(2) had formerly had (though with the somewhat different scope of application that I have identified in the table above). 103The decision appealed from regarded the exclusion by s 11A Civil Liability Act from the application of Part 2 of awards excluded by s 3B as important in ascertaining the meaning of " personal injury damages " in Part 2 Civil Liability Act . I respectfully (and tentatively, given the purpose of this Schedule) disagree. I do so because there is a fundamental difference between the meaning of a word or expression, and the scope of application of a legal principle. 104The difference between the meaning of a word and the scope of application of a legal provision was exhibited, in the Civil Liability Act as originally passed, by the definitions in s 3, and the statement in s 9 of the scope of application of the provisions of Part 2 Civil Liability Act . After the passage of the Personal Responsibility Act , the same difference was exhibited in numerous of the additions made to the Civil Liability Act . For example, concerning the new Part 1A, s 5 set out definitions, while s 5A was a statement of the scope of application of that Part. In the new Part 3, relating to mental harm, s 27 set out definitions, while s 28 provided a statement of the scope of application of the new Part. The new Part 4, relating to proportionate liability, did not contain any definitions of its own, but contained, in s 34, an express statement of the scope of application of that new Part. The new Part 5 contained, in s 41, a statement of definitions for the purpose of the Part and, in s 40, a statement of the scope of application of the Part. The new Part 6, relating to intoxication, contained an express definition in s 48, and in s 47 a statement of the scope of application of the Part. The new Part 7 did not contain any definitions of its own, but contained, in s 51, an express statement of the scope of application of the Part. The new Part 8, relating to good Samaritans, did not contain any definitions of its own, but contained, in s 55, a statement of the scope of application of the Part. The new Part 9, relating to volunteers, contained in s 60 definitions applying in the Part, and in s 59 a statement of the scope of application of the Part. The new Part 10, relating to apologies, contained in s 68 a definition applicable in that Part, and in s 67 a statement of the scope of application of the Part. 105The amendments made by the Personal Responsibility Act to Part 2 of the Act followed this same drafting feature. Section 11 contains a statement of definitions, while s 11A is a statement of the scope of application of the Part. Civil Liability Act - Further Subsequent Amendments 106The Civil Liability Act has been amended on numerous occasions since the enactment of the Personal Responsibility Act . I will mention only those amendments that bear upon the present problem. 107The Civil Liability Amendment (Offender Damages) Act 2004 further amended the Civil Liability Act by adding a new Part 2A, relating to the damages recoverable by offenders in custody. In consequence, s 11A had added to it: "(4) In the case of an award of damages to which Part 2A (special provisions for offenders in custody) applies, this Part applies subject to Part 2A." 108That amendment maintained the distinction between the definitions in s 11, and the statement of scope of application of Part 2 contained in s 11A. It did not alter the content of the definition of "personal injury damages" in s 198C 1987 LP Act . 109The Civil Liability Amendment (Offender Damages) Act 2004 was Act No 29 of 2004. It was assented to on 13 May 2004, and commenced on 19 November 2004. The 2004 LP Act was Act No 112 of 2004. The Bill that eventually became that Act was not introduced into the Parliament until December 2004. Thus, the presently relevant provisions of the 2004 LP Act , in Division 9 of the 2004 LP Act , were introduced into a legislative background that included the amendments that had been made to the Civil Liability Act by the Personal Responsibility Act and the Civil Liability Amendment (Offender Damages) Act 2004 . The provisions of Division 9 2004 LP Act were identical with the provisions that had previously existed in Division 5B 1987 LP Act . They should be interpreted as having the same meaning. 110The Civil Liability Amendment Act 2006 added a new s 15A (relating to damages for gratuitous attendant care services, in proceedings of the kind referred to in s 11 of the Dust Diseases Tribunal Act 1989 ). The former s 15A (which related to damages for loss of superannuation entitlements) was renumbered as s 15C. The Civil Liability Amendment Act 2006 added a new s 15B that, in broad terms, made provision for the circumstances in which an injured person could recover damages for the loss of the capacity of that injured person to provide domestic services to family members. As explained in Amaca Pty Ltd v Novek [2009] NSWCA 50 at [26]-[28], s 15B was introduced following the decision in CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1. It sought to alter the effect of CSR v Eddy by reinstating a head of damages akin to, but not in all respects identical to, that which had been recognised in Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319. 111The Civil Liability Amendment Act 2006 also omitted the previous s 18(1) ([77] above) and inserted instead: "(1) A court cannot order the payment of interest on damages awarded for any of the following: (a) non-economic loss, (b) gratuitous attendant care services as defined in section 15 (other than gratuitous attendant care services to which section 15A applies), (c) loss of a claimant's capacity to provide gratuitous domestic services to the claimant's dependants (as provided by section 15B)." 112Section 15A, 15B and the new s 18(1) thereafter appeared in Part 2 Civil Liability Act . 113In consequence, numerous amendments were made by Schedule 1[1]-[6] to s 3B: "[1] Section 3B Civil liability excluded from Act Omit section 3B(1)(a). Insert instead: (a) civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct-the whole Act except: (i) section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, [2] Section 3B(1)(b) Insert "except sections 15A and 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c))" after "whole Act". [3] Section 3B(1)(c) Insert "except section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c))" after "whole Act". [4] Section 3B(2)(a1) Insert after section 3B(2)(a): (a1) section 15B (Damages for loss of capacity to provide domestic services), [5] Section 3B(2)(b) Omit "15A". Insert instead "15C". [6] Section 3B(2)(c1) Insert after section 3B(2)(c): (c1) section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c))," 114The amendments made by the Civil Liability Amendment Act 2006 provide a further reason why the construction that I have placed (tentatively) on "personal injury damages" in s 338 2004 LP Act is correct. The amendments made by the 2006 legislation to s 3B show that some of the provisions of Part 2 Civil Liability Act can apply to civil liability in respect of an intentional act that is done with intent to cause injury. They are, pursuant to s 3B(1)(a)(i) and (ii), the provisions of s 15B and s 18(1) insofar as it applies to damages arising under s 15B. 115How s 11A operates, in light of the new s 3B, is that Part 2 can apply to an award of damages that relate to the death of or injury to a person for an intentional act done with intent to cause injury, insofar as one of the heads of damage is for loss of the ability to provide gratuitous care services, of the type permitted by s 15B. When damages for those heads of damage are " personal injury damages " , it would be an odd result if other heads of damage for an intentional act done with intent to cause injury were not also " personal injury damages " . 116For these reasons, in my tentative view the trial judge was mistaken in construing the definition of "personal injury damages" in s 337(1) 2004 LP Act as invoking both s 11 and s 11A Civil Liability Act 2002 . Rather, the meaning of " personal injury damages " in Part 2 of the Civil Liability Act is the meaning that s 11 says it has. 117MACFARLAN JA : I agree with Campbell JA. In particular I agree with his Honour that the Court should in this case follow its earlier decision in Cross v Certain Lloyds Underwriters [2011] NSWCA 136 as that is a prior decision and is not plainly wrong. Nevertheless it is appropriate that I indicate that my opinion, like the tentative opinion expressed by Campbell JA, is contrary to the views expressed in that case. 118I appreciate that there are contextual and policy arguments that favour the views expressed in Cross but to my mind the relevant part of the text of s 337(1) is clear and must be given effect to. Section 337(1) states that "personal injury damages has the same meaning as in Part 2 of the Civil Liability Act 2002" (emphasis added). The "meaning" of the term in Part 2 is given by the definition there appearing. The scope of the application of Part 2 is a different question. 119There is an ongoing debate about the emphasis to be given in statutory interpretation to context and purpose on the one hand and text on the other (see His Honour JJ Spigelman AC, "The Intolerable Wrestle: Developments in Statutory Interpretation" (2010) 84 Australian Law Journal 8222). However it can in my view at least be said that the literal meaning of the text of a statutory provision must prevail unless it can be disregarded upon the ground that that literal meaning gives rise to an absurdity or the text is sufficiently tractable to accommodate the meaning suggested by contextual or policy considerations (see for example Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [27] - [33]; Catlow v Accident Compensation Commission [1989] HCA 43; (1989) 167 CLR 543 at 550, referred to in Saeed at [33]). I do not consider that either of these conditions is present here. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2011