Buerckner v Essential Energy

[2013] NSWSC 640

Supreme Court

New South Wales

Medium Neutral Citation:

Buerckner v Essential Energy [2013] NSWSC 640

Hearing dates:

24 May 2013

Decision date:

24 May 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. In proceedings number 2009/339468 leave is given to discontinue the proceedings with no order as to costs.

2. In proceedings number 2009/339467 leave is given to the Plaintiff to discontinue the proceedings with no order as to costs.

Catchwords:

DAMAGES - Compensation to Relatives proceedings - dependent child -discontinuance of proceedings as a result of settlement - no question of principle

Legislation Cited:

Compensation to Relatives Act 1897
Workers Compensation Act 1987

Category:

Interlocutory applications

Parties:

Debbra Nichelle Buerckner (Plaintiff)
Essential Energy (Defendant)

Representation:

Counsel:
N Carney (Plaintiff)
Solicitors:
Matthews Williams (Plaintiff)
L Houghton, Norton Rose (Defendant)

File Number(s):

2009/339467 & 2009/339468

Judgment

1. The Plaintiff has commenced two sets of proceedings in respect of the death of her husband in a helicopter accident on 30 February 2006. One of those proceedings is for a claim for nervous shock for her. The other is a claim under the Compensation to Relatives Act 1897 on behalf of herself and her son, Jack, who was born on 30 May 1996. He is therefore about to turn 17 years.

1. By reason of the claims and cross-claims involving the workers compensation insurer which has been paying death benefits under the Workers Compensation Act 1987 it was thought appropriate that the Plaintiff should not continue with those proceedings. The detail of the amounts involved do not need to be set out.

1. The settlement has been achieved by a deed and the proposal is that the present Compensation to Relatives proceedings should simply be discontinued. It is probably not strictly necessary to seek approval for the discontinuance of the proceedings but I consider it was entirely appropriate for those acting for Mrs Buerckner to request the Court's approval because of the position of her son who is still a minor.

1. I am satisfied from the evidence contained in Mrs Buerckner's affidavit of 21 May 2013 that the proposed arrangement for settlement and discontinuance of these proceedings is appropriate.

1. In the light of the moneys which have already been received and those that were likely to have been obtained had any proceedings been continued and the continuing payment of $6400 per annum for the son Jack, I am satisfied that the proposed settlement of the proceedings is an appropriate one bearing in mind Jack's position.

1. I note further that Mrs Buerckner says in her affidavit that out of the settlement moneys she intends to put $50,000 into trust for her son but of course that is really the icing on the cake. The Court is more concerned with whether appropriate amounts have been obtained and will continue to be obtained for the support of Jack. The evidence in Mrs Buerckner's affidavit satisfies me that that is so.

1. If approval is needed, it is given for leave to discontinue the Compensation to Relatives proceedings.

1. In proceedings number 2009/339468, leave is given to discontinue the proceedings with no order as to costs.

1. In proceedings number 2009/339467, leave is given to the Plaintiff to discontinue the proceedings with no order as to costs.

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Decision last updated: 29 May 2013