Case & Anor v Eaton & Anor [2016] QSC 239

The decision is of interest because in similar factual circumstances, his Honour Henry J declined to follow his Honour Boddice J in Maggs v RACQ Insurance Limited [2016] QSC 41

In issue was whether fund management fees could be recovered for an infant whose claim had been compromised for loss of dependency.

In declining to follow the decision in Maggs, his Honour relied on the authority of Nominal Defendant v Gardikiotos [1996] HCA 53(1995) 186 CLR 49 and in particular the majority decision at p.52:

“We agree with his Honour, substantially for the reasons he gives, that the respondent should not have been awarded damages for management of the funds constituted by the verdict which she obtained. We note that no claim was made that, as a result of her physical disabilities, the respondent will incur additional expense in managing her financial affairs. And as at present advised, we are of the view that any difficulties the respondent will experience in that regard are compensated for by the award of general damages.

As with the question whether an accident was the result of a defendant’s negligence, the question whether a need results from an accident is essentially a question of common sense: it is not a question to be answered by application of the “but for” test. True it is that, but for the accident, the respondent would not have a verdict to invest and, thus, would not need assistance in its management. But it is contrary to common sense to speak of the action causing a need for assistance in managing the fund constituted by her verdict monies in circumstances where her intellectual abilities are not in any way impaired. It would be otherwise in the case of a plaintiff who was intellectually impaired as a result of the defendant’s negligence or by reason of some pre-existing disability.” (citation omitted, emphasis added by Henry J)

Henry J:

[11] This reasoning is also consistent with the current state of the law in relation to personal injury, summarised in the reasons of the High Court in Gray v Richards [2014] HCA 40(2014) 253 CLR 660 at 665-666:

“In Todorovic v Waller, Gibbs CJ and Wilson J summarised the principles which regulate the assessment of damages for personal injuries as follows:

“In the first place, a plaintiff who has been injured by the negligence of a defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained his injuries. Secondly, damages for one cause of action must be recovered once and for ever, and (in the absence of any statutory exception) must be awarded as a lump sum; the Court cannot order a defendant to make periodic payments to the plaintiff. Thirdly, the Court has no concern with the manner in which the plaintiff uses the sum awarded to him; the plaintiff is free to do what he likes with it. Fourthly, the burden lies on the plaintiff to prove the injury or loss for which he seeks damages.” …

The decisions of this Court, in Nominal Defendant v Gardikiotis and Willett v Futcher, refined this aspect of the operation of the third principle in Todorovic v Waller so that, in a case where a defendant’s negligence has so impaired the plaintiff’s intellectual capacity as to put the plaintiff in need of assistance in managing the lump sum awarded as damages, expense associated with obtaining that assistance is a compensable consequence of the plaintiff’s injury. In such a case, “the liability for the [management expenses] is a loss flowing directly from the wrong, and is recoverable as damages caused by the wrong”; and, in accordance with the first and second of the principles stated in Todorovic v Waller, the inclusion of such a component in the lump sum award ensures that the plaintiff receives full restitution for the harm he or she has sustained.” (citation omitted)

His Honour was not persuaded by the remainder of the authorities referred to in Maggs. His Honour found by necessity the infant was under a pre-existing disability.

David Cormack – Brisbane Barrister & Mediator

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