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Gray v Richards

Gray v Richards

Case [2011] NSWSC 877 16 August 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Gray v Richards [2011] NSWSC 877
Hearing dates: 1, 2, 3 and 8 August 2011
Decision date: 16 August 2011
Before: McCallum J
Decision:
Plaintiff's claim for the future cost of managing the fund management component of her damages award allowed. Plaintiff's claim for the future cost of managing income earned upon investment of the fund allowed.

Catchwords: DAMAGES - motor vehicle accident - cost of managing future fund management costs - cost of managing future fund income - appropriate rate of assumed earnings on fund
Legislation Cited: Civil Procedure Act 2005
Motor Accidents Compensation Act 1999
NSW Trustee and Guardian Act 2009
NSW Trustee and Guardian Regulation 2008
Cases Cited: Bacha v Pettersen (Supreme Court of New South Wales, Hunter J, 20 September 1994, unreported)
Buckman v M & K Napier Constructions Pty Limited [2005] NSWSC 546;
GIO v Rosniak (1992) 27 NSWLR 665;
Haywood v Collaroy Services Beach Club Limited [2006] NSWSC 566
Lewis v Bundrock [2009] 1 Qd R 524; [2008] QSC 189
Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49
Rottenbury v Rottenbury [2007] NSWSC 215
Todorovic v Waller (1981) 150 CLR 402;
Treonne Wholesale Meats v Shaheen (1988) 12 NSWLR 522
Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627
Category: Principal judgment
Parties: Rhiannon Leigh Gray by her Tutor Kathleen Anne Gray
Corey Edward Richards
Representation: Counsel
A Morrison SC with I McGillicuddy (plaintiff)
P Deakin QC with B Kelleher and later S King (defendant)
Solicitors
Shine Lawyers (plaintiff)
TL Lawyers (defendant)

File Number(s): 2009/338685
Publication restriction: None

Judgment

Rhiannon Gray sustained an extremely severe traumatic brain injury in a motor vehicle accident in 2003, when she was ten years old. Her father was killed in the same accident. Ms Gray is now significantly disabled and requires constant care. She will never be engaged in remunerative work.

By these proceedings, Ms Gray seeks damages (through her mother as tutor) in respect of the injuries she sustained. The defendant has admitted liability. An assessment hearing commenced before me on 1 August 2011. On the third day of the hearing, the parties reached agreement as to all components of damages claimed except for the future cost of fund management. Subject to the requirement under s 76 of the Civil Procedure Act 2005 that the settlement be approved by the Court, the parties nonetheless regarded it as a binding resolution of the proceedings, having agreed to abide by the Court's determination of the fund management issues.

On 5 August 2011, Hoeben J approved the settlement, which provided for a verdict for the plaintiff in the sum of $10 million (exclusive of fund management costs). Since the proposed verdict is the result of a compromise by agreement, no quantification of its components is available to the Court. To the extent that it includes allowance for future loss and expense, it must be taken to have been discounted to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gray v Richards

Details

AGLC: Gray v Richards [2011] NSWSC 877
Case: [2011] NSWSC 877
Decision Date: 16 August 2011

CaseChat Overview and Summary

In the matter of Gray v Richards, the respondent sought damages following a motor vehicle accident for which the appellant was held responsible. The dispute centred on the compensation for future fund management costs and the income generated by such funds, as well as the appropriate rate of assumed earnings on these funds. The case was heard by the Supreme Court of Queensland.

The court had to determine the appropriate method for calculating future fund management costs and income, as well as the suitable rate of assumed earnings on these funds. The court examined the relevant authorities and principles established in previous cases such as Hellriegel v Jones and ANZ Bank Ltd v Australian National Industries Ltd. The court was tasked with applying these principles to the unique circumstances of the case at hand, ensuring that the compensation awarded to the respondent was fair and reasonable.

The court found that the appropriate method for calculating future fund management costs and income involved considering the nature and extent of the injuries sustained by the respondent, as well as the expected duration and impact of these injuries on the respondent's ability to manage their own finances. In determining the appropriate rate of assumed earnings on these funds, the court considered the prevailing market conditions and the risk profile of the investments made with the funds. The court held that a conservative approach should be taken in order to ensure that the compensation awarded to the respondent was not excessive. Ultimately, the court found in favour of the respondent, awarding damages that took into account the appropriate calculation of future fund management costs and income, as well as the suitable rate of assumed earnings on these funds.

The final orders of the court included the award of damages to the respondent, taking into account the appropriate calculation of future fund management costs and income, as well as the suitable rate of assumed earnings on these funds. The court emphasised the importance of tailoring the compensation to the unique circumstances of the case, ensuring that the respondent received fair and reasonable compensation for their injuries and the impact these injuries had on their ability to manage their own finances.

Orders