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Gray v Richards (No 2)

Gray v Richards (No 2)

Case [2011] NSWSC 1502 8 December 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Gray v Richards (No 2) [2011] NSWSC 1502
Hearing dates: 25 November 20111 December 2011
Decision date: 08 December 2011
Before: McCallum J
Decision:
Plaintiff's application for the future cost of fund management by a private fund manager allowed. Fund management costs allowed on the whole amount of the verdict without deductions.

Catchwords: DAMAGES - motor vehicle accident - plaintiff incapable of managing her affairs as a result of defendant's negligence - future fund management costs - whether plaintiff entitled to such costs at the higher rates charged by a private fund manager - whether any sum should be deducted from the verdict for the purpose of the calculation
Legislation Cited: Corporations Amendment Regulations 2005 (No. 1).
Motor Accidents Compensation Act 1999 NSW Trustee & Guardian Regulation 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Arthur Robinson (Grafton) v Carter (1968) 122 CLR 649
Dasreef Pty Limited v Hawchar [2011] HCA 21
Gray v Richards [2011] NSWSC 877
Government Insurance Office of NSW v Rosniac (1992) 27 NSWLR 665
Griffiths v Kirkemeyer (1977) 139 CLR 161
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mortimer v Burgess (1997) 25 MVR 463;
Nimh Heip Tran by his Tutor Thi Lien Kieu Le v GIO (unreported, NSW Supreme Court, 9 August 1994)
The Nominal Defendant v Martin (1997) 26 MVR 474
Stocovaz v Fung [2007] NSWCA 199
Todorovic v Waller (1981) 150 CLR 402
Tu Tran v Dos Santos (No. 2) [2009] NSWSC 336
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
K James (defendant)
Solicitors
Shine Lawyers (plaintiff)
TL Lawyers (defendant)

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

Judgment

These are proceedings for negligence arising out of a motor vehicle accident in which Rhiannon Gray sustained an extremely severe traumatic brain injury. The defendant's liability is admitted. A hearing to assess damages 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 by the plaintiff except for the future cost of fund management.

On 5 August 2011, Hoeben J approved the settlement, which provided for damages agreed in the sum of $10 million exclusive of fund management costs. After deduction of amounts payable to the Health Insurance Commission, Centrelink and the CTP insurer, the agreed part of the verdict will be $9,934,198.33.

On 16 August 2011, I gave rulings as to the principal issues in dispute concerning the claim for fund management costs: see Gray v Richards [2011] NSWSC 877. At the request of the parties, I reserved two issues for later determination (see [15] of the judgment):

(a) the rate of fees at which the final calculation of future fund management costs should be undertaken;

(b)…

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 (No 2)

Details

AGLC: Gray v Richards (No 2) [2011] NSWSC 1502
Case: [2011] NSWSC 1502
Decision Date: 08 December 2011

CaseChat Overview and Summary

The case of Gray v Richards (No 2) was heard by the Supreme Court of Queensland. The plaintiff, Gray, sought damages for injuries sustained in a motor vehicle accident caused by the defendant, Richards. The plaintiff was left incapable of managing her own affairs as a result of the injuries. One of the issues in the case was whether Gray was entitled to future fund management costs at the higher rates charged by a private fund manager. Another issue was whether any sum should be deducted from the verdict for the purpose of the calculation.

The court had to consider whether the plaintiff's inability to manage her own affairs justified the higher costs of employing a private fund manager, as opposed to the lower costs of a public trustee. The court also had to consider whether the verdict should be adjusted to reflect any potential savings from the use of a public trustee. The court considered the evidence presented by both parties and the relevant legal principles.

The court found that Gray was entitled to the higher rates charged by a private fund manager, as her particular circumstances justified such costs. The court held that Gray's inability to manage her own affairs meant that she required a level of care and expertise that a public trustee could not provide. The court also found that no sum should be deducted from the verdict for the purpose of the calculation, as this would not accurately reflect the true extent of Gray's losses.

The court ordered Richards to pay Gray the full amount of the damages award, including the higher rates charged by a private fund manager. The court held that it was not appropriate to make any deduction from the verdict, as this would not properly account for the plaintiff's need for specialised care and management.

Orders