Willett v Futcher - [2004] QCA 30

SUPREME COURT OF QUEENSLAND

CITATION:

Willett & Anor v Futcher [2004] QCA 30

PARTIES:

DEBORAH ANN WILLETT
(first plaintiff)
BELINDA ANN WILLETT (an infant by her litigation guardians DEBORAH ANN WILLETT and PATRICK WILLETT)
(second plaintiff/appellant)
v
DUDLEY D FUTCHER
(defendant/respondent)

FILE NO/S:

Appeal No 2709 of 2003
SC No 4579 of 1980

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury - Quantum Only

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2003

JUDGES:

Davies JA, Jones and Holmes JJ
Judgment of the Court

ORDER:

Appeal dismissed

CATCHWORDS:

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTION FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT - OTHER MATTERS - where the appellant suffered brain damage as a result of the defendant's negligence - where the appellant was awarded damages - where a determination of the scope of fund management fees recoverable by way of damages was required - where the appellant's need for fund management was created as a direct consequence of the defendant's negligence - whether the fees sought are recoverable as damages

Guardianship and Administration Act 2000 (Qld), s 12, s 245

Trusts Act 1973 (Qld), s 22, s 23, s 24

Nominal Defendant v Gardikiotis (1996) 186 CLR 49, applied

Todorovic v Waller (1981) 150 CLR 402, cited

Wills v Bell [2002] QCA 419; CA No 82 of 2002, 11 October 2002, cited

COUNSEL:

T Matthews for the appellant
D B Fraser QC, with M P Kent, for the respondent
D C Rangiah for the Public Advocate

SOLICITORS:

Quinlan Miller & Treston for the appellant
McInnes Wilson for the respondent

[1] THE COURT: The appellant (plaintiff) suffered severe brain damage and other injuries in a motor vehicle accident when she was nine weeks old. In December 2000 when she was 23 years old the compromise of her claim for damages was sanctioned in the sum of $3,850,000, together with a sum by way of damages in respect of reasonable management fees payable to an administrator pursuant to an Administration Order made by the Court. The learned hearing judge in that instance appointed Perpetual Trustees Queensland Limited ("Perpetual") as the administrator in relation to all financial matters concerning the amount of the compromise pursuant to s 12 and s 245 of Guardianship and Administration Act 2000.

[2] After certain authorised deductions from the compromise sum, the sum of $3,250,000 ("the fund") was the amount that had to be managed by the administrator (hereinafter "the fund manager"). The quantum of the "reasonable management fees" for the administration of the trust fund could not be agreed upon between the parties and the issue was referred to the Court for determination.

[3] The appellant claimed a sum of $713,052 for damages for fund management. Such a sum would approximate 20 per cent of the total fund and significantly exceeds the amounts allowed in cases where the need for fund management was similar.…

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.

Keep reading for free

Create a free CaseChat account to read Willett v Futcher and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] QCA 30
Decision Date: 20 February 2004

CaseChat Overview and Summary

In the case of Willett v Futcher, the appellant, Willett, suffered significant brain damage due to the negligence of the respondent, Futcher. The appellant sought compensation for the damages incurred as a result of the brain injury, including fund management fees required due to the inability to manage personal affairs following the injury. The Queensland Court of Appeal was tasked with determining the scope of fund management fees that could be recovered by way of damages. The central legal issue was whether the fund management fees, necessitated by the appellant’s inability to manage their own affairs as a direct consequence of the brain injury, were recoverable as part of the damages.

The Court of Appeal considered the principles established in relevant authorities such as Nominal Defendant v Gardikiotis and Todorovic v Waller, which outline the criteria for determining recoverable damages in tort actions. The court also referenced Wills v Bell for guidance on the assessment of damages for personal injuries. In applying these authorities, the court found that the need for fund management arose directly from the appellant’s inability to manage personal affairs, which was a direct consequence of the brain injury caused by the respondent’s negligence. Consequently, the court held that the fund management fees were recoverable as part of the damages.

The Court of Appeal dismissed the appeal, affirming that the fund management fees were appropriately included in the damages awarded to the appellant. The court’s decision underscored the importance of considering the totality of damages directly resulting from the tortfeasor’s negligence, including those necessary to address the incapacitated party’s inability to manage their own affairs. The appeal was thus dismissed, leaving the original damages award intact.

Orders

Orders of the court

Appeal dismissed

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Willett & Anor v Futcher [2004] QCA 30
PARTIES:	DEBORAH ANN WILLETT (first plaintiff) BELINDA ANN WILLETT (an infant by her litigation guardians DEBORAH ANN WILLETT and PATRICK WILLETT) (second plaintiff/appellant) v DUDLEY D FUTCHER (defendant/respondent)
FILE NO/S:	Appeal No 2709 of 2003 SC No 4579 of 1980
DIVISION:	Court of Appeal
PROCEEDING:	Personal Injury - Quantum Only
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	7 October 2003
JUDGES:	Davies JA, Jones and Holmes JJ Judgment of the Court
ORDER:	Appeal dismissed
CATCHWORDS:	DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTION FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT - OTHER MATTERS - where the appellant suffered brain damage as a result of the defendant's negligence - where the appellant was awarded damages - where a determination of the scope of fund management fees recoverable by way of damages was required - where the appellant's need for fund management was created as a direct consequence of the defendant's negligence - whether the fees sought are recoverable as damages Guardianship and Administration Act 2000 (Qld), s 12, s 245 Trusts Act 1973 (Qld), s 22, s 23, s 24 Nominal Defendant v Gardikiotis (1996) 186 CLR 49, applied Todorovic v Waller (1981) 150 CLR 402, cited Wills v Bell [2002] QCA 419; CA No 82 of 2002, 11 October 2002, cited
COUNSEL:	T Matthews for the appellant D B Fraser QC, with M P Kent, for the respondent D C Rangiah for the Public Advocate
SOLICITORS:	Quinlan Miller & Treston for the appellant McInnes Wilson for the respondent