Cunningham & Ors v FAI

In the Supreme Court of Queensland, the case of Cunningham & Ors v FAI General Insurance Company Limited revolves around a claim for compensation following a severe motor vehicle accident. The plaintiff, who suffered extensive brain damage and other injuries at the age of 18 months, was rendered permanently disabled and in need of total care. The dispute centres on the approval of a settlement amounting to $1,150,000.00 and the allocation of 25% of this sum directly to the plaintiff's next friend, his father, for past care expenses. The court was required to decide whether the settlement was reasonable and in the best interest of the plaintiff, and if it should be sanctioned under the provisions of the Public Trustee Act 1978.

The court's reasoning highlighted the importance of strict compliance with legal procedures when sanctioning a settlement for a person under a legal disability. It emphasised that such applications are not mere formalities but require detailed examination of the presented material and lengthy consideration. The court noted that the initial material provided was inadequate and did not fully reflect the complexities involved in such cases. It underscored the necessity for the court to exercise an independent protective jurisdiction, ensuring that the settlement genuinely benefits the person under the disability.

Furthermore, the court addressed the significant claim made by the next friend for past care expenses, noting discrepancies in the various sources of information provided. It highlighted the need for careful consideration of the basis for such claims, taking into account the contributions of all parties involved in the plaintiff's care. The court also discussed the appropriate manner of determining costs, distinguishing between solicitor and own client costs and party and party costs, and the implications of the Public Trustee Act 1978 and the Civil Justice Reform Act 1998 on these matters.

Ultimately, the court decided not to sanction the proposed settlement at that time, citing the need for further information and negotiation between the parties. It also noted the importance of ensuring that the settlement truly reflects the best interests of the plaintiff. The court adjourned the application, including the application for a protection order, to allow the parties to take further action as they deemed appropriate. The costs of the application were reserved for further consideration.