A majority of the High Court has allowed, 3:2, an appeal against a decision of the New South Wales Court of Appeal concerning a damages claim for lost expectation of financial support. After her husband was killed by a collapsed awning that belonged to the first respondent, Ms Taylor brought a fatal accident claim under the Compensation to Relatives Act 1897 (NSW), which included a claim for lost expectation of financial support. A majority of the NSWCA held that the 1897 Act was limited by the operation of s 12(2) of the Civil Liability Act 2002 (NSW) which caps damages for economic loss for ‘claimants’ gross weekly earnings’ at $2500. Section 12(2) makes no mentioned of deceased persons, but the NSWCA majority read the phrase ‘or deceased person’s’ into the section to give effect to the statute’s purpose.

The majority (French CJ, Crennan and Kiefel JJ) held that the s 12(2) limitation cannot be read as applying to a deceased person’s earnings. Noting that reading additional or omitted words into a statute is a judgment of degree, the majority reaffirmed that the court should not fill ‘gaps disclosed in legislation’ or make insertions that vary widely from the language of the statute. The deceased cannot be seen as ‘the claimant’, and reading s 12(2) as referring to the deceased’s weekly earnings cannot be reconciled with the language of the statute. The majority also rejected appellant’s argument that the s 12(2) limitation had the same purpose as a similar limitation in motor accident compensation statute, on the basis that that context may have called for a different legislative response. Rather, the purpose of s 12 is to limit the component of the award assessed against a claimant’s earnings. Gageler and Keane JJ dissented.