Abdul Ahmadi v Pamstream Pty Limited
[2013] NSWSC 832
•14 June 2013
Supreme Court
New South Wales
Medium Neutral Citation: Abdul Ahmadi v Pamstream Pty Limited [2013] NSWSC 832 Hearing dates: 14 June 2013 Decision date: 14 June 2013 Jurisdiction: Common Law Before: Slattery J Decision: Tutor for the plaintiff appointed. Proposed settlement approved.
Catchwords: PROCEDURE - claim in negligence resulting from a near drowning incident - plaintiff seeks appointment of a tutor and approval of a settlement of the proceedings - whether medical evidence establishes the plaintiff requires a tutor - whether Uniform Civil Procedure Rules 2005 r 7.15 requirements for appointment satisfied - whether settlement reasonable in light of liability and causation issues in the proceedings. Legislation Cited: Civil Procedure Act 2005 s 76
Guardianship and Administration Act 1986 (Vic)
NSW Trustee and Guardian Act 2009
Uniform Civil Procedure Rules 2005 r 7.15Category: Principal judgment Parties: Plaintiff: Abdul Ahmadi Defendant: Pamstream Pty Limited Representation: Counsel:
Plaintiff: R. Royle
Defendant:
Solicitors:
Plaintiff: Shanahan Tudhope Lawyers
Defendant: Lee and Lyons
File Number(s): 2009/297396
Judgment
Mr Abdul Ahmadi, the plaintiff, nearly drowned at the Ruth Everuss Aquatic Centre at Church Street, Lidcombe, New South Wales on 5 May 2006.
He paid for entry to the centre. But he could not swim. He was later found at the bottom of the deep end of the pool, unconscious. He sued the defendant, Pamstream Pty Limited, the aquatic centre operator, for his claimed injuries, which include the consequences of alleged hypoxia.
The plaintiff's case alleges a duty of care based upon a contract of entry to the aquatic centre and a failure on the part of the defendant to supervise him or have any proper system of supervision for the safety of users of the aquatic centre.
By Motion today the plaintiff seeks appointment of a tutor and approval of a settlement of the proceedings.
As to the appointment of a tutor, I am satisfied on the medical evidence before me that the plaintiff requires appointment of a tutor. He has come under the professional care of Professor Lorraine Dennerstein, a psychiatrist practising in Melbourne, who is of the opinion that he needs a tutor to provide instructions on his behalf in these proceedings. She says of him that:
Neuro psychological tests demonstrate the significant effects on his cognition. In my opinion Mr Ahmadi does not have sufficient capacity to understand advice provided to him in relation to the current Supreme Court proceedings for compensation. His memory and concentration have been significantly impaired, he has little English, and has had very poor education before coming to Australia, and was not literate in his own language. I do not think he has sufficient capacity to understand advice provided to him in relation to the current Supreme Court proceedings.
The person proposed to be his tutor is Mr Richard Phillips of State Trustees Limited, Victoria. Mr Ahmadi, who originally migrated to Australia from Afghanistan in 1999, is now resident in Victoria. That is why Mr Phillips has been proposed as the tutor.
Mr Phillips, the evidence shows, is an officer of State Trustees Limited, Victoria. He has been appointed under the Guardianship and Administration Act 1986 (Vic) to act as administrator of the plaintiff's estate in Victoria. He has not yet received any appointment under the New South Wales legislation. But that does not prevent him being appointed as the plaintiff's tutor.
The requirements for appointment of a tutor in New South Wales under the Uniform Civil Procedure Rules 2005 ("UCPR") r 7.15 are reasonably undemanding. There is no conflict of interest between Mr Phillips and the plaintiff. A consent has been provided. I am satisfied that Mr Phillips is eligible under UCPR 7.15. All the requisite documents required under UCPR 7.15 have been filed. Accordingly I appoint Mr Phillips as the plaintiff's tutor in the proceedings.
I now come to the question of the proposed settlement. As a result of the appointment of a tutor for the plaintiff any settlement of these proceedings requires approval of the Court: Civil Procedure Act 2005 s 76. I have been provided with a consent judgment and consent orders. The consent judgment is said to be confidential, although confidentiality has been waived in respect of the parts of the consent judgment referred to in these reasons. In substance they provide, subject to the usual deductions for repayments to public authorities, for the sum of $425,000 in total to be paid in the plaintiff's interests. $300,000 will be paid on account of a verdict, and $125,000 assessed separately as payable to Shanahan Tudhope Lawyers, on account of the plaintiff's legal costs. The law requires this amount for costs to be separately identified, when the Court is considering approval of a settlement.
I have the medical evidence and a report on liability as to what occurred at the aquatic centre on the day concerned. Most usefully, I have an opinion on the settlement from Mr Royle of counsel, who appears on the plaintiff's behalf today, instructed by Shanahan Tudhope Lawyers.
The balancing factors prompting settlement are sufficiently well summarised in Mr Royle's opinion. They come down to the following major integers. The opinion offers the view, with which the Court does not disagree on the materials available, that a mid-range assessment of the total verdict likely to be received, undiscounted for contributory negligence or other factors associated with the risk of failure in these proceedings, would be a figure of just over $530,000 plus costs, plus compensation for future funds management. That allows for: non-economic loss, future and past out of pocket expenses, past economic loss, future care and future economic loss. The breakdown of this figure does not need to be described in this judgment.
However, there are in play two significant issues that in Mr Royle's opinion suggest that a settlement in that sum agreed of $300,000, plus costs, is reasonable, and should be approved: a liability issue and a causation issue. The liability issue is that given the plaintiff was unable to swim, there would be a potentially significant component of contributory negligence alleged against him in the proceedings. Secondly, the psychiatric evidence and the evidence of the psychologist that I have reviewed makes clear that the residual cognitive impairment that he currently suffers may not be the result of any hypoxic injury he sustained in the incident, but may have predated the incident.
Even in the absence of independent information regarding Mr Ahmadi's background, the expert evidence supports the conclusion that he may have suffered some pre-existing psychiatric illness. The same evidence supports the conclusion that the plaintiff's current impaired concentration memory and practical skills, irritability, anger, lack of interest in external things, an emotional lability, and a pattern of behaviour consistent with depression, may also not be the result, or wholly the result, of this accident. Those two factors, in my view, well justify Mr Royle's view about the appropriateness of this settlement. For that reason, and in all these circumstances, the Court approves the settlement.
In the result the Court will make the following orders:
(1) I appoint Mr Richard Phillips as the plaintiff's tutor.
(2) The settlement between all the parties is approved.
(3) There be judgment for the plaintiff against the defendant in the sum of $300,000 and otherwise in accordance with the confidential Terms of the Consent Judgment executed by all the parties, initialled by me and marked "B".
(4) The Defendant pay costs as agreed in the sum of $125,000.00 to Shanahan Tudhope Lawyers.
(5) That after deduction of the payments referred to in paragraphs 4 and 7 of the Consent Judgment, the balance of the judgment sum be paid into Court pending Mr Richard Phillips, the plaintiff' tutor, applying to be appointed as the person having management of the plaintiff's estate under the NSW Trustee and Guardian Act 2009.
Decision last updated: 25 June 2013
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