BY KATRINA KLUSS
Within a period of six months, two single judge decisions of the Supreme Court of Queensland, regarding whether administration costs ought to be payable in infant dependency claims under section 64 of the Civil Proceedings Act 2011 (“CPA”), have been handed down.
The first decision, delivered by Boddice J on 9 March 2016 in the matter of Maggs v RACQ Insurance Limited held that such costs were not payable by the insurer. The second decision, delivered by Henry J on 30 September 2016 in the matter of Case & Anor v Eaton & Anor declined to follow the reasoning in Maggs, and instead ordered that the insurer was liable to pay fund management fees.
These two opposing decisions have left personal injury and insurance practitioners alike to wonder; where to from here?
Maggs v RACQ Insurance Limited  QSC 41
The applicant was aged one when her parents died in a motor vehicle accident in December 2012. The applicant brought a claim for damages, the compromise of which was required to be sanctioned by the court.
Given the applicant’s age, any settlement sum would require management by a trustee on her behalf, which would incur fees in the administration of the funds. The issue for determination at the sanction of the applicant’s settlement, was whether the administration fees for the management of the settlement amount fell within the damages resulting from the death of the applicant’s parents.
It was submitted on behalf of the applicant that such administration fees were plainly foreseeable as one of the consequences of causing loss resulting from the death of the applicant’s parents. Thus, the damages recoverable ought to have included the inevitable costs of fund management.
The respondent accepted that such costs were recoverable in the assessment of damages at common law for a tort of negligence, but submitted that there is no provision in the CPA which allowed for recovery of fund management fees as damages, in a claim brought pursuant to a statutory cause of action. It was further submitted that a consideration of the Public Trustee Act 1978 (PTA), did not support a conclusion that such costs would be recoverable for a claim based on statutory entitlement.
In determining the matter, Boddice J relied on the case of Fox v The Commissioner for Main Roads where fees relating to fund administration in a Lord Campbell’s action were held not to be recoverable against the defendant. His Honour also considered the cases of Rouse v Shepherd and Swan v Williams Demolition Pty Ltd. Although Fox, Rouse and Swan were all decided before the commencement of the CPA, Boddice J found that the relevant explanatory memoranda did not indicate any intention to change the types of damages recoverable in such a statutory cause of action.
Consequently, it was held that the component of fund management fees was not recoverable as damages resulting from the death of the applicant’s parents.
Case & Anor v Eaton & Anor  QSC 239
The deceased was killed when he was hit by a police car on 24 April 2003. Dependency claims were brought on behalf of his widow, and three-month-old daughter. The claims were settled between the parties on 3 August 2016.
As in Maggs, the compromise of the infant’s claim was required to be sanctioned by the court, and thus, the issue between the parties was whether the court should order the insurer pay further damages for management fees in respect of the primary damages. The insurer relied upon the decision in Maggs. The applicant relied upon the reasoning of the High Court in Nominal Defendant v Gardikiotos, which was not considered in Maggs.
The decision of Gardikiotos clarified circumstances in which an injured plaintiff might recover, as a head of damage in a claim for damages for personal injury, the costs of managing a fund where the plaintiff was obliged to rely upon the skills of an external fund manager to invest the funds. Although the applicant in that case was injured in a motor vehicle accident she was not incapacitated by any physical or mental means that prevented her from managing the fund. Thus, the High Court held that the applicant should not be awarded damages for management of settlement funds. However, it was noted that, “[i]t 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.”
His Honour held that, in the matter of Case, the applicant’s age was a pre-existing legal disability, and therefore the insurer must take her as it found her, that is:
“a minor whose need for assistance in managing any fund awarded was foreseeable at the time of her father’s death and occasioned by the same event entitling her to such an award.”
His Honour referred to the fact that such a finding was also consistent with the current state of the law in relation to personal injury, as referred to in Gray v Richards.
Accordingly, while Henry J noted that a single judge decision from the Supreme Court would ordinarily be persuasive, albeit not binding, he declined to apply Boddice J’s reasoning to the matter of Case. His Honour referred to the fact that the decisions of Fox and Rouse, which were relied upon in Maggs, were both decided before the High Court decision of Gardikiotos.
Thus, whilst affording full respect to the reasoning in Maggs, His Honour ultimately held that management fees in the matter of Case were “as much a foreseeable outcome as the loss grounding the award to be managed”, and consequently ordered that the management fees were recoverable as damages.
Where to from here?
It is interesting to note that neither of the unsuccessful parties in Maggs and Case sought to appeal the respective decisions.
The consequence is that there are now two opposing, single judge decisions arising out of the Supreme Court of Queensland, in a matter of months, relating to an issue commonly encountered in personal injury and dependency claims involving minors. It therefore seems likely that the issue of whether fund management costs are payable by an insurer will remain a matter of contention between opposing parties in such cases.
It may be that this issue will only be resolved following an appeal in a similar case in future, or through legislative reform to clarify the meaning of section 64 (3) of the CPA.
  QSC 41
  QSC 239
 (1988) 1 Qd R 120
 (1994) 35 NSWLR 25
 (1987) 9 NSWLR 173
 (1995) 186 CLR 49
 (1995) 186 CLR 49 at 52
  QSC 239 at 
 (2014) 253 CLR 660 at 665-6
  QSC 239 at