Maggs v RACQ Insurance Limited - [2016] QSC 41

SUPREME COURT OF QUEENSLAND

CITATION:

Maggs v RACQ Insurance Limited [2016] QSC 41

PARTIES:

ANNABELLE JAY MAGGS by her litigation guardian DOUGLAS LINDSAY MAGGS

(applicant)

v
RACQ INSURANCE LIMITED

(respondent)

FILE NO/S:

SC No 1150 of 2016

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2016

JUDGE:

Boddice J

ORDER:

The parties are to prepare Minutes of Orders in accordance with these Reasons

CATCHWORDS:

TORTS – NEGLIGENCE – FATAL ACCIDENTS LEGISLATION – DAMAGES – MEASURE OF DAMAGES – PARTICULAR HEADS OF DAMAGES AND FACTORS IN ASSESSMENT – where applicant is a non sui juris – where the applicant is currently under five years of age – where applicant’s parents were killed in a vehicle accident – where the applicant’s claim for damages sustained as a result of the death of her parents was based on s 64 of the Civil Proceedings Act 2011 (Qld) – where the applicant brought an application for orders sanctioning terms of a settlement of the applicant’s claim for damages – where the settlement amount will be placed in trust and subject to management fees for an extended period – whether fund management fees properly fall within the damages resulting from the death of the applicant’s parents – whether the applicant is entitled to receive, as part of any damages award, a component by way of fund management fees

Civil Proceedings Act 2011 (Qld), s 7, s 65

Public Trustee Act 1978 (Qld)

Fox v The Commissioner for Main Roads [1988] 1 Qd R 120, considered
Horton v Byrne (1956) 30 ALJR 583; [1957] St R Qd 1, cited
Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9, cited.

Rouse v Shepherd (1994) 35 NSWLR 250, considered

COUNSEL:

P Goodwin for the applicant

R Douglas QC for the respondent

SOLICITORS:

Hall Payne Lawyers for the applicant

Cooper Grace Ward for the respondent

By originating application, filed 2 February 2016, the applicant made application for orders sanctioning the terms of a settlement of the applicant’s claim for damages sustained as a result of the death of her parents in a motor vehicle accident on 8 December 2012.
Whilst the terms of settlement, insofar as the quantification of the respective heads of damages, had been agreed between the parties, subject to the sanction of the Court, there remains in issue whether the applicant is entitled to receive, as part of any damages award, a component by way of fund management fees.
Background
The applicant is non sui juris, being born on 4 September 2011. Her parents died on 8 December 2012 as a consequence of injuries sustained when their parked vehicle was struck by another vehicle.
The applicant’s claim was based on a statutory entitlement to recover damages for the loss of her parents. That claim, pursuant to s 64 of the Civil Proceedings Act 2011 (Qld) (the ‘CPA’), entitles the applicant to recover “… the…

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.

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Details

Case: [2016] QSC 41
Decision Date: 9 March 2016

CaseChat Overview and Summary

In the matter of Maggs v RACQ Insurance Limited, the applicant, a child born on 4 September 2011, brought a claim for damages following the death of her parents in a vehicle accident on 8 December 2012. The claim is based on s 64 of the Civil Proceedings Act 2011 (Qld) (CPA), which entitles the applicant to recover damages proportional to the damage to her resulting from the death of her parents. The applicant seeks to have fund management fees, which will be incurred in the administration of the settlement funds placed in trust, included as part of the damages award.

The central issue before the court was whether the applicant is entitled to receive, as part of any damages award, a component by way of fund management fees. The applicant argued that the loss of financial support, domestic services, and parental services and assistance are recoverable and those costs ought to include the inevitable costs of the administration of any damages fund. The respondent, however, contended that the CPA and the Public Trustee Act 1978 (Qld) (PTA) do not allow for the recovery of fund management fees as damages in a statutory claim.

The court considered the statutory framework provided by the CPA and the PTA, as well as common law principles regarding the recoverable heads of damages. The court found that while the applicant's argument had some merit, the statutory framework did not allow for the recovery of fund management fees as damages in this case. The court held that the applicant is not entitled to receive a component by way of fund management fees as part of the damages award.

The parties were directed to prepare Minutes of Orders in accordance with the reasons provided by the court.

Orders

Orders of the court

The parties are to prepare Minutes of Orders in accordance with these Reasons

Background

Background to the litigation

Whilst the terms of settlement, insofar as the quantification of the respective heads of damages, had been agreed between the parties, subject to the sanction of the Court, there remains in issue whether the applicant is entitled to receive, as part of any damages award, a component by way of fund management fees. Background The applicant is non sui juris, being born on 4 September 2011. Her parents died on 8 December 2012 as a consequence of injuries sustained when their parked vehicle was struck by another vehicle. The applicant’s claim was based on a statutory entitlement to recover damages for the loss of her parents. That claim, pursuant to s 64 of the Civil Proceedings Act 2011 (Qld) (the ‘CPA’), entitles the applicant to recover “… the damages (the Court) considers to be proportional to the damage to (the applicant) resulting from the death”. The agreed settlement sum will result in a sum of money being placed on trust for the applicant, until further order of the Court. Those funds will, naturally, be managed on the applicant’s behalf for many years, having regard to the applicant’s age. It is agreed that, as a consequence, fees will be incurred in the administration of those funds. At issue is whether those fees properly fall within the damages resulting from the death of the applicant’s parents. Submissions The applicant submits it is well settled that the loss of financial support, loss of domestic services and loss of parental services and assistance are, in the case of an applicant child, recoverable. Those costs ought properly to include the inevitable costs of the administration of any damages fund. The only viable alternative trustee is a corporate trustee who will charge significant fees, thereby depleting the funds available to the applicant. Those fees are plainly foreseeable by a defendant as one of the consequences of causing loss resulting from the death of the applicant’s parents. The respondent accepts that fund management fees are a recoverable head of damage in the assessment of damages at common law for a tort of negligence. However, no provision in the CPA allows recovery of fund management fees as damages in the applicant’s claim brought pursuant to a statutory cause of action. Similarly, a consideration of the provisions of the Public Trustee Act 1978 (Qld) (the ‘PTA’) does not support a conclusion that fund management fees are recoverable pursuant to a claim for damages based on a statutory entitlement. Discussion Section 7 of the CPA, insofar as it is relevant, provides:“(2) A court must give the same effect as it did immediately before the commencement of this section—(a)to all equitable estates, titles, rights, remedies, defences and counterclaims, and to all equitable duties and liabilities; and(b)subject to the matters mentioned in paragraph (a), to all legal claims and demands and all estates, titles, rights, duties, obligations and liabilities existing under the common law or under any custom or created under any statute.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Maggs v RACQ Insurance Limited [2016] QSC 41
PARTIES:	ANNABELLE JAY MAGGS by her litigation guardian DOUGLAS LINDSAY MAGGS (applicant) v RACQ INSURANCE LIMITED (respondent)
FILE NO/S:	SC No 1150 of 2016
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	26 February 2016
JUDGE:	Boddice J
ORDER:	The parties are to prepare Minutes of Orders in accordance with these Reasons
CATCHWORDS:	TORTS – NEGLIGENCE – FATAL ACCIDENTS LEGISLATION – DAMAGES – MEASURE OF DAMAGES – PARTICULAR HEADS OF DAMAGES AND FACTORS IN ASSESSMENT – where applicant is a non sui juris – where the applicant is currently under five years of age – where applicant’s parents were killed in a vehicle accident – where the applicant’s claim for damages sustained as a result of the death of her parents was based on s 64 of the Civil Proceedings Act 2011 (Qld) – where the applicant brought an application for orders sanctioning terms of a settlement of the applicant’s claim for damages – where the settlement amount will be placed in trust and subject to management fees for an extended period – whether fund management fees properly fall within the damages resulting from the death of the applicant’s parents – whether the applicant is entitled to receive, as part of any damages award, a component by way of fund management fees Civil Proceedings Act 2011 (Qld), s 7, s 65 Public Trustee Act 1978 (Qld) Fox v The Commissioner for Main Roads [1988] 1 Qd R 120, considered Horton v Byrne (1956) 30 ALJR 583; [1957] St R Qd 1, cited Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9, cited. Rouse v Shepherd (1994) 35 NSWLR 250, considered
COUNSEL:	P Goodwin for the applicant R Douglas QC for the respondent
SOLICITORS:	Hall Payne Lawyers for the applicant Cooper Grace Ward for the respondent