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Maggs v RACQ Insurance Limited


[2016] QSC 41

Reported at [2017] 1 Qd R 69





Maggs v RACQ Insurance Limited [2016] QSC 41








SC No 1150 of 2016


Trial Division


Originating application


Supreme Court at Brisbane


9 March 2016




26 February 2016


Boddice J


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


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


P Goodwin for the applicant

R Douglas QC for the respondent


Hall Payne Lawyers for the applicant

Cooper Grace Ward for the respondent

[1] 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. 

[2] 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. 


[3] 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.

[4] 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”. 

[5] 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. 

[6] At issue is whether those fees properly fall within the damages resulting from the death of the applicant’s parents. 


[7] 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. 

[8] 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. 


[9] 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.”

[10] Part 10 of the CPA relates to claims for what was previously known as claims for damages under the Lord Campbell’s Act.  Section 64 of the CPA enshrines the principle that a person who causes the death of another by a wrongful act or omission, which would, if death had not resulted, have entitled the deceased person to recover damages in a proceeding for personal injuries, is liable for damages despite the death. 

[11] However, the Court may only award to the members of the deceased person’s family, “the damages it considers to be proportional to the damage to them resulting from the death”.  That terminology reflects the pre-existing basis for claims for damages under Lord Campbell’s Act.

[12] The measure of damages in a claim brought under a “Lord Campbell’s Act” statute was explained in Horton v Byrne:[1]

“It is compensation for material loss.  The compensation should represent the balance of the loss, reduced to terms of money, which the deceased’s relatives incur in consequence of his death after deducting the pecuniary gains which on the other hand accrue to them from that event.  The loss is usually a prospective one and all reasonable expectations of material advantage are to be taken into account.  The words of the statute are such damages as they (the jury) think proportioned to the injury resulting from such death to the parties respectively from whom and for whose benefit such action shall be brought.”

Greer J, in Baker v Dalglish Steam Shopping Co Ltd, after quoting these words, said:

“It is well settled that the damages are confined to compensation for the loss of material benefits or of the reasonable prospect of such benefits occasioned by the death.  If by reason of the death the person for whom the action is brought are as well or better off than they were before there is no cause of action.”

(Citations omitted)

[13] The recoverable damages include both pecuniary loss of dependency, referable to the deceased’s notional income, and non-pecuniary loss of dependency, on account of loss of the deceased’s services.[2]  The damages awarded represent the present pecuniary value of the loss of expectation of benefit on account of the deaths of the deceased. 

[14] In Fox v The Commissioner for Main Roads,[3] Thomas J held, in reference to a claim for fund management fees in a Lord Campbell’s action:

“With respect it seems to me that the task of the Court in awarding damages in a Lord Campbell’s action is to assess ‘the reasonable expectation of material benefit’ which the plaintiff has lost, at the same time bringing into the balance any pecuniary advantages resulting from the death.  The fact that such a fund will, by reason of the Court’s protection of infants, and in particular their desire to ensure that the fund is not improperly dissipated, be administered by a trustee (be he Public Trustee or not) does not in my view affect the question of the assessment of the damages for which the defendant is liable.  It is a post-decree matter.

It is true that there is no particular difficulty in determining an amount that would give the plaintiff the benefit of the fund free of such charges.  In that sense it may differ from the well known refusal of courts to make allowances for future inflation where the perceived impossibility of fair prediction as to such a matter prevents it being taken into account.  However, in the present context, I am concerned with the administration of money which already represents the sum which the court considers to be the plaintiff’s true pecuniary loss.  The monies pass out of the defendant’s control into the control of the plaintiff’s trustee.  Costs associated with the administration of the funds thereafter are not properly chargeable against the defendant.”

[15] A similar conclusion was reached in Rouse v Shepherd,[4] where Badgery-Parker J observed, in relation to a statutory dependency claim:[5]

“These are not claims for damages at common law.  They are statutory claims and what is recoverable is compensation for the loss of the chance that the particular claimant would have derived some financial benefit from the deceased had the latter lived.  Other losses are not recoverable.  The principle is stated in Luntz, Assessment of Damages (3rd ed) in para. 9.2.10:

‘Apart from the loss of a reasonable expectation of benefit if the deceased had lived, losses resulting from the death, even though pecuniary, are not recoverable.  Thus funeral expenses are not recoverable under the ordinary Lord Campbell’s Act legislation, though this has been amended to allow some recovery in some jurisdictions …  Nor are the costs of representation at an inquest (Swan v Williams Demolition Pty Ltd (1987) 9 NSWLR 173 at 188).’

Clearly, the incurring by the dependants of the cost of the funeral of a deceased person is ‘a necessary reasonable and foreseeable result of the negligence’ which led to his death and hence to the verdict; but it is not recoverable cause it is not within the concept of the kind of losses to which the Compensation to Relatives Act 1897 is directed.  It seems to me that the same must be true of the cost of fund management.”

[16] Whilst Fox and Rouse both were decided before the commencement of the CPA, a consideration of the provisions of that Act and of the explanatory notes and second reading speech does not reveal any intention to change the types of damage properly recoverable in such a cause of action. 

[17] The observations of Thomas J in Fox, and Badgery-Parker J in Rouse, as to the category of recoverable damages in causes of action based on Lord Campbell’s Act legislation, are applicable to similar claims for damages pursuant to the CPA.

[18] The CPA creates a statutory entitlement to damages in relation to losses suffered by a dependent child as a consequence of the wrongful death of a parent.  That statutory entitlement limits the damages that are recoverable.  There is no basis to extend the recoverable damages to include damage not resulting from the death that arise post the assessment of those damages. 

[19] The component of fund management fees sought by the applicant is not recoverable as damages resulting from the death of the applicant’s parents. 


[20] I am satisfied the proposed settlement, less the fund management fees, is in the best interests of the applicant. 

[21] I sanction that settlement.


[22] The parties are to prepare Minutes of Orders in accordance with these reasons.


[1] (1956) 30 ALJ 583 at 585; [1957] St R Qd 1 at 8-9.

[2] Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9.

[3] (1988) 1 Qd R 120 at 122-123.

[4] (1994) 35 NSWLR 250.

[5] Rouse v Shepherd (1994) 35 NSWLR 250 at 267-268.


Editorial Notes

  • Published Case Name:

    Maggs v RACQ Insurance Limited

  • Shortened Case Name:

    Maggs v RACQ Insurance Limited

  • Reported Citation:

    [2017] 1 Qd R 69

  • MNC:

    [2016] QSC 41

  • Court:


  • Judge(s):

    Boddice J

  • Date:

    09 Mar 2016

Litigation History

No Litigation History

Appeal Status

No Status