The applicant’s parents died in a car crash in December 2012. The applicant was an infant at the time. The terms of the settlement had largely been agreed between the parties. The only outstanding issue on the sanction related to whether the applicant was entitled to receive, as part of any damages award, a component by way of fund management fees.
As the applicant was 5 years old at the time of the settlement, the funds would need to be managed on her behalf and as a consequence, fees would be incurred in the administration of those funds.
Section 64 of the Civil Proceedings Act 2011 (Qld) (the ‘CPA’), provides for “… the damages (the Court) considers to be proportional to the damage to (the applicant) resulting from the death”. The issue was whether the administration fees for the management of the settlement amount properly fell within the damages resulting from the death of the applicant’s parents.
The applicant submitted that the administration fees were plainly foreseeable as a consequence of causing loss resulting from the death of the applicant’s parents. Thus, the fees are an inevitable cost flowing on from the loss of financial support, loss of domestic services and loss of parental assistance.
The respondent submitted that while fund management fees are recoverable in the assessment of damages at common law for negligence, there is not provision in the CPA which allows for recovery of fund management fees as damages. The respondent further submitted the Public Trustee Act 1798 (Qld) (the ‘PTA’) does not support the recovery of fund management fees.
Part 10 of the CPA relates to claims for previously known Lord Campbell’s claims. The Court may only award to the members of a deceased person’s family “the damages it considers to be proportional to the damage to them resulting from the death”.
Boddice J considered the similar case of Fox v The Commissioner for Main Roads (1988) 1 Qd R 120 where fund administration fees were considered in a Lord Campbell’s action. It was held that the fund administration fees were not recoverable against the defendant.
Boddice J also considered that neither funeral costs nor the costs of representation at a inquest were recoverable, despite being clearly foreseeable, in the cases of Rouse v Shepherd (1994) 35 NSWLR 250 and Swan v Williams Demolition Pty Ltd (1987) 9 NSWLR 173. While both of Rouse and Swan were decided before the commencement of the CPA, Boddice J held that none of the explanatory memoranda indicated an intention to change the types of damage properly recoverable in such a cause of action.
Boddice J stated that the damages awarded represent the present pecuniary value of the loss of expectation of benefit on account of the deaths of the applicant’s parents. Boddice J held that the fund management fees sought by the applicant were not recoverable as damages resulting from the death of the applicant’s parents.
Boddice J sanctioned the proposed settlement, less the claimed fund management fees.
David Cormack – Brisbane Barrister & Mediator