Christiansen v Kammholz

[2010] QSC 298

SUPREME COURT OF QUEENSLAND

CITATION:

Christiansen v Kammholz & Anor  [2010] QSC 298

PARTIES:

KEVIN DARRELL CHRISTIANSEN
(plaintiff/applicant)
v

ROSS PETER KAMMHOLZ
(first defendant/respondent)
SUNCORP METWAY INSURANCE LIMITED ABN 83 075 695 966
(second defendant/respondent)

FILE NO:

BS3135 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

Delivered ex tempore on 4 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2010

JUDGES:

Atkinson J

ORDER:

Order as per draft. 

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – OTHER MATTERS – ORDER SANCTIONING SETTLEMENT – where plaintiff’s claim for damages for personal injuries following a motor vehicle accident was settled – where primary damages payable are $150, 000 – where applicant suffered disabilities and was in receipt of a disability support pension prior to the accident – where court considered the effect of the Social Security Act 1991 (Cth) on the settlement payment – whether settlement is a reasonable one – whether it is in the plaintiff’s best interests that it be sanctioned

Social Security Act 1991 (Cth), s 1178, s 1179
Motor Accident Insurance Act 1994 (Qld), s 42, s 51
Public Trustee Act 1978 (Qld), s 59(1)

COUNSEL:

M Grant-Taylor SC for the applicant

D Thompson (sol) for the respondents

SOLICITORS:

McNamara & Associates for the applicant
Jensen McConaghy for the respondents

HIS HONOUR: I've been asked to sanction the settlement of proceedings for personal injury pursuant to section 59(1) of the Public Trustee Act 1978. The settlement offered by the defendant is the sum of $150,000, inclusive of all statutory refunds though clear of any and all payments made to and for the plaintiff as incurred by the second defendant for private hospital medical and pharmaceutical expenses under section 42 of the Motor Accident Insurance Act 1994, for rehabilitation services under section 51 of the Motor Accident Insurance Act 1994 and by way of advance on damages.

I have also been asked to sanction, as part of that settlement, that the second defendant pay the plaintiff further damages for administration of management and investment fees in an amount to be agreed between the parties, or failing agreement, as assessed by the Court as well as costs.

I have been greatly assisted by a memorandum of advice by Mr Grant-Taylor, an extremely experienced counsel in this area, who has produced an advice which is thorough and which deals realistically with the claim made by the plaintiff.  The plaintiff was injured in a terrible motor vehicle accident but, as the advice shows, already suffered from a number of disabilities for which he was in receipt of a disability support pension.

That is why the settlement sum is limited to $150,000 because there is little in the award by way of a claim for past economic loss or future impairment of earning capacity.  The vast majority of the award is for general damages and also for the need for past gratuitous care and future care, future expenses and special damages and out of pocket expenses.

The amount, which is attributable in this award to past economic loss, is only a nominal amount of $5,000 to take account of the fact that there may have been some residual effect on his capacity to earn income between the date of the accident and today but it is perfectly clear that his receipt of the disability support pension was not caused by this accident.

In my view, this settlement is only capable of sanction if the provisions of the Social Security Act which apply to lump sum compensation payments, in particular s 1178 and s 1179, do not deprive the plaintiff of more than $5,000 of this award. Should he be so deprived by having to pay moneys to the Commonwealth of more than that amount because of his receipt of the disability support pension, then this settlement would not be in his interests and could not be sanctioned by the Court.

However, in view of the fact that so little is attributable to his past economic loss, I am prepared to sanction the settlement on condition that the parties have leave to re-open the matter if the Commonwealth requires a repayment of more than $5,000 because of his receipt of the disability support pension from before the date of the accident until and including today.

I should stress that this is not a case where the lump sum settlement is any attempt to avoid the provisions of the Social Security Act. This is an unfortunate case where the plaintiff has always lacked capacity and that has had an impact on his earning capacity and is the reason for his need for disability support pension and it would not be in his interests to have more than the nominal amount nominated by Mr Grant-Taylor in his sensible memorandum of advice be repayable to the Commonwealth because of his receipt of the disability support pension.

So, I will make the order as per draft except that I will add 'liberty to apply' on two clear days' notice to re-open the matter should the plaintiff be required to pay more than $5,000 to the Commonwealth Government in respect of his receipt of disability support pension.

I note that this approach has been with the consent of all parties to this matter.  That the plaintiff's counsel has sought to protect his interests and the second defendant similarly has not expressed any desire to under compensate the plaintiff for his injuries.

I make the order as per draft which I'll initial and place with the file.

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