Cottle v Transport Accident Commission
[2016] VCC 827
•17 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-13-03819
| TONY COTTLE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2016 | |
DATE OF JUDGMENT: | 17 June 2016 | |
CASE MAY BE CITED AS: | Cottle v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 827 | |
REASONS FOR JUDGMENT
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Subject: SETTLEMENT OF PROCEEDING
Catchwords: Trial – Deed of Settlement – whether settlement resolved both pain and suffering and pecuniary loss claims for damages
Legislation Cited: Transport Accident Act 1986
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | - |
| For the Defendant | Mr S Martin | Ms L Dawtney (TAC) |
HIS HONOUR:
1 In this application, the defendant seeks a determination which recognises the validity and enforceability of the Deed of Release executed by the plaintiff on 18 March 2016, and applies for an order that the plaintiff’s proceeding be dismissed.
2 In opposing the defendant’s application, the plaintiff contends that his signature upon the Release was procured by reason of:
(i) Duress on behalf of the defendant;
(ii)The failure by the defendant to provide reasons as to why it accepted an obligation to make a payment of damages to the plaintiff for pain and suffering but refused to recognise the claim made by him for loss of earnings.
3 The plaintiff further asserts:
(i)That it was his intention in signing the Release to reserve his right to maintain the current proceeding against the defendant in the form of a claim in respect of damages for loss of earning capacity; and
(ii)That the wording of the Release should be interpreted such that it applies only to the plaintiff’s claim for damages in respect of pain and suffering and loss of enjoyment of life and not so as to preclude him from maintaining a claim for pecuniary loss damages.
4 Accordingly, it is the plaintiff’s position that the proceedings should not be dismissed but that he should be entitled to maintain the proceedings for the purpose of prosecuting his entitlement to an award of damages in respect of pecuniary loss.
5 In the course of the hearing convened on 14 June 2016:
(i) the plaintiff was given the option of proceeding to a trial in which evidence could be given as to the allegations which he makes in this instance; and
(ii) it was explained to the plaintiff that, in the absence of a trial, the evidence upon which the current issues would be determined would be limited to the content of:
·The plaintiff’s affidavit of 1 May 2016;
·The content of the affidavit of Jacob Anthony Luca, sworn 28 April 2016, together with the exhibits to that affidavit; and
·The various emails passing between the parties and the Court between 18 and 23 March 2016.
6 Having been given the opportunity over the luncheon adjournment to consider his position, the plaintiff elected to have the matter determined on the basis of the evidence contained in the written material to which I have referred above.
7 It is clear that the written material contains no evidence which supports the plaintiff’s allegation of inappropriate behaviour on behalf of the Transport Accident Commission (“TAC”) in this instance.
8 Further, given the reputation and standing of Mr John Noonan QC, who was the mediator in this matter, I find the position put by the plaintiff as to this issue be unlikely in the extreme.
9 In his submission the plaintiff asserts that the TAC, in the course of the mediation, had an obligation under the Transport Accident Act 1986 (“the Act”) to justify to him its decision-making process in the course of the negotiations which took place in this instance. There is no merit in this position. Neither the provisions of the Act nor the common law impose such an obligation upon the TAC.
10 The plaintiff’s argument that the TAC had an obligation to him to account for its refusal to accept his contention that it should pay damages to him in compensation for lost earnings, or loss of earning capacity associated with the transport accident the subject of this proceeding, misconceives:
(i)the obligations of the parties to a damages trial which involves:
· the onus being placed upon the plaintiff to establish each aspect of his case; and
·the defendant (subject to specific exceptions, none of which apply in this instance) having no onus of proof.
(ii)the respective obligations of the parties to the mediation, and in particular the fact that if he was not convinced as to any position taken by the defendant, he had no obligation to continue with the mediation process or agree to any settlement offer put to him.
11 While it is the plaintiff’s position that he signed the Terms of Settlement believing that the defendant would enter into further negotiations with him as to the claim which he made in respect of pecuniary loss damages, I am satisfied that the chain of emails to which I will refer below which passed between:
· the plaintiff and the defendant; and
· the plaintiff and the Court;
provides no support for that position but rather supports a position to the contrary.
12 The relevant evidence in this instance may be summarised as follows:
(i) The parties mediated the matter on 17 March 2016;
(ii) At 5.35am on 18 March 2016, the plaintiff sent an email to Mr Luca, the solicitor for the TAC, in the following terms:
“Hello Jacob, as a result of the mediation hearing yesterday, I have been left pondering on the point of economic loss. So, in order for me to move forward on the settlement offer, I would like a further clarification of your reasoning behind your decision.
In my opinion, there is absolutely no doubt that I have experienced extreme economic loss as a result of becoming physically incapacitated. Yet your client, absolutely refused to offer any compensation or financial consideration for this loss.
I consider this to be offensive and an insult to what I believe is the charter and obligation of the TAC.
Would you please respond by return email as to the reasons that your client has for such refusal to offer any form of compensation for my financial losses, past and future.
I would sincerely like to understand this point, prior to returning the settlement form, so if you could reply asap, I would appreciate it.”
(iii)At 9.51am on 18 March 2016, Mr Luca responded to the plaintiff’s email in the following terms:
“The TAC considers there to be a number of evidentiary issues associated with your claim for economic loss. These were communicated to you at the mediation yesterday.
You will recall that the TAC’s initial position with respect to your claim was that there was no entitlement to damages at common law, as negligence will not be established and/or the TAC’s Section 96 defence will be successful. The TAC subsequently compromised its position at the mediation and submitted an offer of $250,000 (inclusive of legal costs). I am instructed that the TAC is not prepared to compromise its position any further.
I confirm that at the conclusion of the mediation, you indicated that you accepted the TAC’s settlement offer of $250,000 (inclusive of legal costs) subject to the signing of a release. On this basis, the TAC considers the proceeding to have resolved.
Please provide me with a copy of the signed release as soon as possible together with your bank details in order that payment of the settlement amount can be facilitated.”
13 In my opinion, while the email authored by the plaintiff, to which I have referred above, is consistent with the plaintiff’s position that he sought to engage in further discussions with the TAC as to his claim for pecuniary loss damages, the response on behalf of the TAC is unequivocal in its statement that the TAC was not prepared to engage in further discussion.
14 In response to the email by Mr Luca, to which I have referred above, the plaintiff queried whether any deductions were to be made from the settlement sum of $250,000, but did not query the position taken by the TAC that there would be no further negotiations in the matter.
15 Subsequently, the plaintiff signed the Release, had his signature witnessed and returned the Release to the TAC on 21 March 2016.
16 By email dated 23 March 2016, the plaintiff made the following statement to the Court:
“Given that I have accepted a settlement, and that the matter is not proceeding to trial, is there a need to have a further directions hearing?”
17 In response to an enquiry emailed by the Court on 23 March 2016 as to whether the parties to the proceeding consented to the making of an order dismissing the proceeding, the plaintiff replied by email in the following terms:
“Hello Jason, there was an understanding that a payment of $250,000.00 would be paid as a pain and suffering payment, within ‘a couple of days’ as was stated to and confirmed by Mr Noonan, the Mediator.
As yet Payment has not been received, so it appears that orders to dismiss, may be a bit premature.
Can you please ask Judge Saccardo to hold off on the final orders of dismissal until TAC honours their payment commitment?”
18 On the same date, the plaintiff sent a further email to the Court which, omitting irrelevant parts, contained the following statement:
“I have signed the release, because I am sick of fighting for what’s right.
My health is suffering and I must move on from this situation to focus on my health. I realised from the mediation that I am not mentally and physically well enough to cope with, handle and do justice to my case if it goes to a ten day trial, and I do not have funds to pay for all of the witnesses that I would need to attend my case. Judge Saccardo tried to warn me of the difficulties of being self-represented … .”
19 On 24 March 2016, the sum of $250,000 was transferred by the TAC into the plaintiff’s bank account.
20 It is clear that in the course of his communications with the Court following his return of the Release to the TAC in this instance:
· the plaintiff asserted his position that his action had been settled and that it was not proceeding to trial; and
· the position maintained by the plaintiff was that the making of an order dismissing the proceedings was acceptable to him subject to the timing of that order being delayed so that it was not made until he had received the settlement money.
21 In the context of the contemporaneous statements made by the plaintiff in the course of his emails to which I have referred above, I do not accept the plaintiff’s position that at the time at which he returned the Release in this instance he did so believing that the effect of the agreement which he had entered with the TAC was one which:
· allowed him to maintain the proceeding insofar as it related to his loss of income and earning capacity; and
· was not such that it would involve an order that the proceeding be dismissed upon the receipt by him of the proceeds of the settlement.
22 Rather I am satisfied that the plaintiff, when returning the Release, did so on the basis that all aspects of the proceeding had been resolved and that the proceeding would be discontinued once he had received the settlement sum from the TAC.
23 As to the terms of the Settlement Agreement:
(i) It is clear that the TAC, in resolving the case, did so by the payment of a sum characterised as being limited to pain and suffering damages;[1]
[1]See paragraph 5 of the Deed
(ii) Paragraphs 6 and 9 of the Deed, however, contain the following terms:
“(6) In consideration of the agreement by the Commission to pay the settlement amount, the releasor HEREBY RELEASES AND FOREVER DISCHARGES the driver of the unidentified vehicle and the Commission from all proceedings, suits, claims, demands and costs whatsoever for damages at common law which he now has or at any time hereafter may have had against the driver of the unidentified vehicle and/or the Commission arising out of or in any way connected with the accident.
…
(9)The proceeding shall be wholly stayed and discontinued, and this deed may be pleaded or tendered by the Commission as an absolute bar to any legal proceedings pursuant to the release contained in this deed and all claims or causes of action brought or made in breach of the terms of this deed.
(10)The releasor agrees to do all acts and things to execute all documents necessary to discontinue the proceeding.”
24 There can be no issue, in my opinion, that these terms make it clear that by executing the Release, the plaintiff was agreeing to resolve all aspects of the claims for damages the subject of the proceeding once and for all and to an order by which the proceedings would be discontinued.
25 Given:
(i) the content of the Release; and
(ii) my satisfaction, for the reasons to which I previously referred, that the plaintiff understood and accepted the fact that as a result of the terms of the Release and the payment of the settlement sum the subject of the Release, that his proceeding against the defendant would be dismissed
I will make an order in this instance that the proceedings be dismissed.
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