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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 360
Decision Date: 01 April 2022

CaseChat Overview and Summary

Broome commenced proceedings against Citibuilt Constructions Pty Ltd for personal injuries suffered by Broome, who was under legal capacity at the time of the incident. Citibuilt Constructions sought to settle the claim and applied to the court for approval of the proposed settlement amount. The legal issue before the court was whether the proposed settlement was in the best interests of Broome, given the plaintiff's inability to provide informed consent due to their legal incapacity. The court considered the evidence presented by the parties, including expert opinions on the likely outcome of the litigation and the potential for recovery of damages. It was noted that the proposed settlement amount was reasonable and in the best interests of Broome, taking into account the risks and costs associated with proceeding to trial.

The court found that the proposed settlement was fair, reasonable and in the best interests of Broome. It was noted that the settlement amount was commensurate with the injuries suffered by Broome and took into account the risk of a less favourable outcome if the case proceeded to trial. The court also considered the views of Broome's legal representative and guardian, who supported the proposed settlement. It was held that the proposed settlement was in the best interests of Broome, and the court granted approval for the settlement of the proceedings. The court emphasised the importance of protecting the interests of individuals who are unable to provide informed consent due to their legal incapacity. It was noted that the court must carefully consider the evidence presented and ensure that any proposed settlement is fair and reasonable.

Orders