Broome v Citibuilt Constructions Pty Ltd

[2022] NSWSC 360

Supreme Court

New South Wales

Medium Neutral Citation:	Broome v Citibuilt Constructions Pty Ltd [2022] NSWSC 360
Hearing dates:	29 March 2022
Date of orders:	29 March 2022
Decision date:	01 April 2022
Jurisdiction:	Common Law
Before:	Ierace J
Decision:	Orders made by consent.
Catchwords:	CIVIL PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal capacity – whether proposed settlement is in the interests of the plaintiff
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 76
Cases Cited:	Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336
Category:	Principal judgment
Parties:	David Broome (Plaintiff) Citibuilt Constructions Pty Ltd (First Defendant) Insurance Australia Limited t/as Lumley Insurance as insurers for Miltipower Fabrications Pty Ltd as Trustee for the Issa Family Trust (Second Defendant) Gordian Runoff Limited (Third Defendant)
Representation:	Counsel: P J Mooney SC and J Thompson (Plaintiff) D Stretton (Second Defendant) D Talintyre (Third Defendant) Solicitors: Chadwick Lawyers (Plaintiff) McCabes (Second Defendant) Lander & Rogers (Third Defendant)
File Number(s):	2015/245475

Judgment

1. This is an application for approval of a proposed settlement of a claim for damages commenced on behalf of David Broome, the plaintiff, by his tutor Dr Graham Marning, who I understand to be a medical practitioner, against the defendants. The application is made pursuant to s 76 of the Civil Procedure Act 2005 (NSW) (“the Act”), which provides that, in proceedings commenced on behalf of a person under legal incapacity, if an agreement for a compromise or settlement is made, that person is not bound by it unless it is approved by the Court.

2. The plaintiff claims to have suffered certain injuries consequent to an accident on 6 December 2012. While inspecting a recently built apartment that he had purchased (“the premises”), he fell approximately 2.5m from an unguarded elevated driveway ledge. He was taken by ambulance to Westmead Hospital for treatment. The plaintiff, in his second further amended statement of claim which was filed on 31 March 2021, alleges that the first defendant, a construction company, was the head contractor and occupier of the premises at that time. The first defendant, which was covered by an insurance contract with the third defendant, was subsequently deregistered. The second defendant was to install a permanent handrail along the driveway ledge, and for that reason the first defendant had removed a temporary handrail protection.

3. In his amended statement of claim, the plaintiff alleges the following injuries:

“(a)   Bilateral distal radius fractures;

(b)   Comminuted fractures of bilateral pterygoid plate;

(c)   Comminuted nasal fracture;

(d)   Bilateral zygomatic arches fractures;

(e)   Hard palate fracture;

(f)   Right superior, inferior and lateral orbital rims fractures;

(g)   Bilateral fractures of anterior, posterior and medial wall maxillary sinus;

(h)   Lacerations to the right eyebrow and lips;

(i)   Injury to the tempomandibular joint;

(j)   Multiple undisplaced fractures of the upper facial bones;

(k)   Very large facial swelling due to facial fractures;

(l)   A fracture through the left transverse process of L1;

(m)   Rupture of the disc in the cervical spine at C5-6;

(n)   Significant closed head injury;

(o)   Severe psychological injury;

(p)   Shock and sequelae.”

4. The second and third defendants each filed a defence disputing liability and a further amended cross-claim. The matter was set down for hearing before his Honour Rothman J, to commence on 28 March 2022. On that morning, the plaintiff, through his tutor, accepted a final offer of settlement, subject to the Court’s approval. In furtherance of that application, the matter has come before me sitting as the Duty Judge (“the application for approval”). The proposed settlement is a payment to the plaintiff, to be contributed equally by the second and third defendants, plus costs as agreed or assessed. A consent judgment sets out an agreed workers compensation payback which is to be satisfied by the judgment in related proceedings and which “fully and finally satisfied” the obligations of the plaintiff and the second and third defendants to refund that amount.

5. I note that, at the time of the alleged incident, the plaintiff was aged 44 and in full-time employment in the New South Wales Police Force. He was married with two children, who are presently aged 14 and 17. The plaintiff and his wife separated in 2020.

6. The application for approval is accompanied by an affidavit of the plaintiff’s tutor, Dr Marning, who stated that the plaintiff continues to suffer from a traumatic brain injury and a significant psychiatric condition. Dr Marning has been advised that the plaintiff is totally and permanently incapacitated for employment. Dr Marning supports the proposed settlement.

7. An affidavit of the plaintiff’s solicitor, Simon Chadwick, has annexed to it certain medical reports which attest to the extent of the brain injury and the applicant’s mental condition, as well as a report by an occupational physician. In a report dated 25 May 2020, Dr Lana Kossoff, consultant psychiatrist, stated that she considered whether the plaintiff was capable of managing his financial affairs. Dr Kossoff noted that the plaintiff had received a sum of money from his superannuation finalisation, which is managed in conjunction with his financial adviser at State First. The plaintiff described his financial adviser to Dr Kossoff as “very sensible and excellent”, and Dr Kossoff noted that the plaintiff’s (then) wife stated that she trusts the financial adviser, who had provided financial advice to the family for a “number of years”. Some detail of the plaintiff’s expenditures from the superannuation finalisation were provided to Dr Kossoff, who concluded that, in her opinion, the plaintiff has the capacity to manage his financial affairs and does not need an external financial manager to be appointed.

8. I have had the benefit of reading a confidential joint memorandum of advice as to the merits of the proposed settlement, prepared by Mr Mooney SC and his junior, Mr Thompson.

9. The Court’s function in a hearing pursuant to s 76 of the Act is protective in nature. In Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336, Hammerschlag J, referring to this provision, observed, at [29]:

“The principle is that for the Court to grant approval for a compromise to be entered into by the disable[d] person it must form the view that it is beneficial to his or her interests. The compromise should be assented to by the tutor and there should be opinions from his or her legal advisers that they consider it to be so: Re Birchall. The Court will consider for itself whether the compromise will be beneficial to the disable[d] person: Somerset v Ley [1964] 1 WLR 640 …”

10. One of the matters that the Court must take into account is the possibility that an award of damages at the conclusion of a full hearing may deliver a greater quantum of damages than that which is the proposed settlement amount. I have been particularly assisted in that regard by the confidential joint memorandum of advice. Taking into account all of the material, I am satisfied that the proposed settlement is in the best interests of the plaintiff.

Orders

11. Accordingly, I make orders in terms of the draft consent orders (1) to (4) inclusive.

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Decision last updated: 01 April 2022