Cho v State of New South Wales

[2015] NSWSC 882

Supreme Court

New South Wales

Medium Neutral Citation:	Cho v State of New South Wales [2015] NSWSC 882
Hearing dates:	2 July 2015
Decision date:	02 July 2015
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	By consent: 1. Order the plaintiff to pay the sum of $10,000.00 into a Trust account on account of Amanda Cho pending her attaining the age of eighteen (18) years. 2. Judgment for the defendant. 3. Each party to bear his or its own costs of the proceedings. 4. Approve the settlement of the proceedings pursuant to s 77(3) Civil Procedure Act 2005 (NSW), such approval being required as Amanda Cho is a minor.
Catchwords:	INFANT SETTLEMENT – no question of principle – settlement approved
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 76, 77 Compensation to Relatives Act 1897 (NSW) NSW Trustee and Guardianship Act 2009 (NSW)
Category:	Principal judgment
Parties:	Henry Van Tien Cho (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: M Cranitch SC (Plaintiff) C Faunt (Solicitor) (Defendant)     Solicitors: Donald Bedford Courtenay Poulden (Plaintiff) Hicksons Lawyers (Defendant)
File Number(s):	2015/61712

Judgment: Ex tempore

Introduction

1. On 19 May 2011, Raymond Cho (the deceased) died of anaphylactic shock at school as a result of eating a biscuit that contained nuts. The plaintiff, the deceased’s father, brought the present proceedings under the Compensation to Relatives Act 1897 (NSW) on his own behalf and on behalf of his wife, Kuan Lian Cho, and his daughters Fiona Cho and Amanda Cho (the Compensation to Relatives Proceedings).

2. Members of the deceased’s family have also brought separate claims against the defendant for damages for nervous shock (the Nervous Shock Proceedings). Both sets of proceedings allege that the defendant’s negligence caused the deceased’s death. At the time of the deceased’s death, Amanda was five years old.

3. I note that the Nervous Shock Proceedings in respect of the deceased's father, mother and sister, Fiona, have already been resolved by the payment of substantial sums. The Nervous Shock Proceedings in respect of Amanda Cho have not yet resolved as her condition has not yet stabilised.

4. By notice of motion filed on 26 June 2015, the plaintiff, Henry Cho, sought orders that this Court approve a proposed consent order and order that the sum of $10,000 be paid by him into a trust account on account of Amanda Cho, his youngest daughter, pending her attaining the age of 18 years. The proposed consent order is that there be judgment for the defendant and that each party bear his or its own costs of the proceedings. The purpose of these orders is to resolve Amanda Cho’s rights under the Compensation to Relatives Act.

5. This Court’s approval is required as Amanda Cho is still a minor and therefore under a legal incapacity: Civil Procedure Act 2005 (NSW), s 76.

The basis of Amanda’s Cho’s claim under the Compensation to Relatives Act

6. The basis of the claim for damages in the Compensation to Relatives Proceedings was that the deceased would have, once he had finished school, worked in business with his father and would have contributed to the family's finances. Paragraph [8] of the statement of claim alleged:

“As a result of the death of the deceased the persons outlined in paragraph 7 above [including Amanda Cho] have been deprived of maintenance, support and benefit of services which the persons received or would have received from the deceased during his lifetime.”

7. I have been provided with a memorandum of advice from Mr Cranitch of Senior Counsel in which he sets out his opinion as to Amanda Cho's prospects of success in the Compensation to Relatives Proceedings. Mr Cranitch opines that it is extremely unlikely that Amanda Cho and her sister, Fiona, would have been claimants for support upon the deceased. He bases his opinion on the fact that, in the period during which Amanda and Fiona would have been dependent on their parents and on their deceased brother, the deceased would have probably been undertaking a lengthy apprenticeship. Accordingly, it would have been unlikely that he would have earned income such as to contribute to the family income and the support of his sisters. I respectfully accept that the opinion Mr Cranitch has expressed in the memorandum of advice is soundly based.

8. In these circumstances, I am prepared to make the orders sought in the notice of motion, approve the settlement reached and make the consent orders which are contained in a document entitled "Consent Judgment" dated 1 July 2015. The orders that I am asked to make appear to me to be in the interests of Amanda Cho. I note that the plaintiff is to keep the money aside, to be paid to Amanda on her 18th birthday.

9. I note that it is Mr Cho’s wish that the money not be paid under the NSW Trustee and Guardianship Act 2009 (NSW). Given the size of the sum to be set aside for Amanda Cho, were the money to be paid under the NSW Trustee and Guardianship Act, it is likely that fees would deplete, if not exhaust, the fund completely by the time of Amanda’s 18th birthday. I accept the evidence that the Cho family is very close and that Amanda's father, the plaintiff, can be relied upon to keep the money for the benefit of Amanda when she turns 18.

10. Accordingly, I am satisfied that it is appropriate to make an order under s 77(3) of the Civil Procedure Act that the money be paid to the plaintiff to be paid by him into a trust account on account of Amanda Cho pending her attaining the age of 18.

Orders

11. I make the following orders:

By consent:

1. Order the plaintiff to pay the sum of $10,000.00 into a Trust account on account of Amanda Cho pending her attaining the age of eighteen (18) years.

2. Judgment for the defendant.

3. Each party to bear his or its own costs of the proceedings.

4. Approve the settlement of the proceedings pursuant to s 77(3) Civil Procedure Act 2005 (NSW), such approval being required as Amanda Cho is a minor.

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Decision last updated: 06 July 2015