The Queensland Supreme Court finds that fund management fees are not recoverable under a statutory “liability for a death” claim12 April 2016 | Public & Product Liability
The Queensland Supreme Court has found that a child, whose parents were killed in a car accident, was not entitled to recover fund management fees as part of her action for statutory damages under the Civil Proceedings Act 2011 (CPA).
The matter of Maggs v RACQ Insurance Limited  QSC 41 involved an applicant who lost both her parents in a car accident in 2012 when she was just 15 months old. The applicant sought to recover damages from the respondent, pursuant to section 64 of the CPA which provides that:
“…a court may 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.”
Prior to the application, the parties had agreed generally on a settlement sum. However, they remained in dispute as to whether the applicant was entitled to recover damages for fund management fees.
Given the applicant’s age, any settlement sum paid by the respondent was to be placed into trust. The applicant sought additional damages under section 64 of the CPA for the administrative costs associated with managing the settlement sum while in trust. However, the respondent contended that, unlike negligence claims at common law, the applicant was not entitled to such damages under section 64 of the CPA.
In determining the application, Justice Boddice cited the Queensland Supreme Court decision of Fox v The Commissioner for Main Roads as well as the NSW Court of Appeal decision of Rouse v Shepherd. Both of those decisions pre-dated the CPA but similarly related to statutory claims for damages resulting from the death of family members. In both of those decisions, it was found that fund management fees, as costs only incurred after the initial assessment of statutory damages, were not recoverable under the relevant legislation.
Upon review of the CPA explanatory notes and second reading speech, his Honour determined that it was not the intention of the CPA to expand recoverable damages to include losses that did not arise directly from the subject death, such as fund management fees.
On the basis of the above finding, the amount sought by the applicant for fund management fees was deducted from the proposed settlement sum. The balance of the proposed settlement sum was then sanctioned by the court.
The decision confirms the clear distinction between statutory claims made under section 64 of the CPA and the position at common law in respect of the recoverability of fund management fees. For a copy of the full decision, see: http://www.austlii.edu.au/au/cases/qld/QSC/2016/41.html