GLEESON CJ, McHUGH, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ
BELINDA ANN WILLETT (BY HER LITIGATION GUARDIANS DEBORAH ANN WILLETT AND PATRICK WILLETT) APPELLANT
AND
DUDLEY D FUTCHER RESPONDENT
Willett v Futcher
[2005] HCA 47
7 September 2005
B78/2004
ORDER
1. Appeal allowed with costs.
2.Set aside order of the Court of Appeal of the Supreme Court of Queensland made on 20 February 2004 and in its place order that the appeal to that Court is allowed with costs.
3.Remit matter to the Court of Appeal of the Supreme Court of Queensland for the assessment of the damages to be allowed.
4.Amend title to the proceeding in this Court by deleting the words "aninfant".
On appeal from the Supreme Court of Queensland
Representation:
D F Jackson QC with T Matthews for the appellant (instructed by Quinlan Miller & Treston)
D B Fraser QC with M P Kent for the respondent (instructed by McInnes Wilson)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Willett v Futcher
Damages – Measure of damages in actions for tort – Appellant suffered brain damage as a result of respondent's negligence – Application for approval of terms of compromise – Appellant unable to manage financial affairs – Administrator appointed to manage appellant's financial affairs – Where determination necessary to calculate "sum by way of damages in respect of reasonable management fees of the administrator" – Where requirement for management of funds arose as a direct result of respondent's negligence – Whether only certain kinds of costs of managing funds should be allowed in assessing damages – Whether damages to be assessed according to the position of an appellant not awarded a lump sum of damages, or according to the position of an appellant with a lump sum to invest but no disabling injury.
Words and phrases – "damages", "compromise order", "reasonable management fees", "trustee".
GLEESON CJ, McHUGH, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ. In July 1979, when she was about nine weeks old, the appellant, Belinda Ann Willett, suffered severe brain and other physical injuries as a result of a motor vehicle collision. In 1980 an action was commenced in the Supreme Court of Queensland on Ms Willett's behalf claiming damages from the present respondent. Many years later, when Ms Willett was aged 23, that action went to mediation. Liability was admitted. The solicitor for Ms Willett was later to swear that at that mediation "the matter resolved on the basis that the [respondent] pay to [Ms Willett] the sum of $3,850,000.00 (inclusive of statutory refunds) plus costs plus trustee Administration and Management Charges". On the day the mediation ended, counsel for the parties executed Terms of Settlement to record 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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AGLC
Willett v Futcher [2005] HCA 47
Case
[2005] HCA 47
Decision Date
CaseChat Overview and Summary
The appellant, Willett, brought proceedings against the respondent, Futcher, alleging negligence that resulted in brain damage. Due to this injury, the appellant was unable to manage her financial affairs, and an administrator was appointed. The dispute before the High Court of Australia concerned the assessment of damages, specifically the inclusion of reasonable management fees for the administrator.
The central legal issue was how to calculate the "sum by way of damages in respect of reasonable management fees of the administrator." This required the court to determine whether the need for fund management arose directly from the respondent's negligence and, if so, what kinds of costs associated with managing the funds should be allowed in the assessment of damages. The court also had to consider whether the damages should be assessed based on the position of an appellant who had not been awarded a lump sum, or on the position of an appellant who had a lump sum to invest but suffered a disabling injury.
The High Court allowed the appeal, setting aside the orders of the Court of Appeal of Queensland. The Court found it unnecessary to definitively rule on the appellant's argument regarding double counting in the Court of Appeal's assessment. Instead, it remitted the matter back to the Court of Appeal for a fresh assessment of damages. The parties were granted liberty to argue the double counting issue before the Court of Appeal, which was to reconsider the matter unconstrained by its previous findings. The title of the proceeding was also amended to remove the designation "an infant."
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside order of the Court of Appeal of the Supreme Court of Queensland made on 20 February 2004 and in its place order that the appeal to that Court is allowed with costs.
3. Remit matter to the Court of Appeal of the Supreme Court of Queensland for the assessment of the damages to be allowed.
4. Amend title to the proceeding in this Court by deleting the words "an infant".
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ
In this Court it was argued for the appellant that the Court of Appeal's conclusion as to the correctness of the figure of $180,000 rested on the erroneous view that some of her claims involved double counting. In the circumstances it is not necessary to decide whether that argument is correct. However, the appellant is at liberty to contend to the Court of Appeal hearing the matter remitted that there is no double counting, the respondent is at liberty to contend the contrary, and the Court of Appeal is at liberty to reconsider the matter unconstrained by what the Court of Appeal has already said on that subject in support of the orders appealed from[49].[49]Willett v Futcher [2004] QCA 30 at [26]-[32].Conclusion and Orders The appeal to this Court should be allowed with costs. The title to the proceeding in this Court should be amended by deleting the words "an infant". The orders of the Court of Appeal of Queensland should be set aside. In their place there should be orders that the appeal to that Court is allowed with costs. The matter should be remitted to the Court of Appeal for the assessment of the damages to be allowed.
Ratio Decidendi
Legal Principle Established
Established by:
HUGH, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ