Accrued rights

Fitzpatrick v Lifetime Support [2019] SASCFC 97

A scheme for future care10 sought to exclude rights to common law damages11.  Legislation is usually not read this way unless a contrary intention appears12.  In this case, however, there was an unmistakeable policy to exclude those rights, manifested by the alternative compensation the scheme provided. 

A narrow construction to preserve common law rights, therefore, was ‘out of place’.  That an action in negligence had been started, but not resolved, before admission to the scheme did not matter – damages are a ‘mere expectation’ until final judgment.  iTip – purpose and context are the keys to determining if there is a contrary intention13.

This case is from Episode 52 of interpretation NOW!


10 Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 (SA).

11 s 58A of the Civil Liability Act 1936 (SA).

12 Diakou [2017] SASC 72 (at [35-41]), s 16 of the Acts Interpretation Act 1915.

13 Pearce Interpretation Acts in Australia (at [2.28-2.42]) generally.