Currie v Bunbury Health Service

[2000] WADC 337

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   BUNBURY

CITATION:   CURRIE -v- BUNBURY HEALTH SERVICE & ANOR [2000] WADC 337

CORAM:   WISBEY DCJ

HEARD:   13 DECEMBER 2000

DELIVERED          :   20 DECEMBER 2000

FILE NO/S:   CIV 23 of 97

BETWEEN:   DONNA MARY CURRIE

Plaintiff

AND

BUNBURY HEALTH SERVICE
First Defendant

CATHERINE LEE IRVIN
Second Defendant

Catchwords:

Personal injury - Application for compromise - Application for special costs order

Legislation:

Fatal Accidents Act 1959

Trustees Act 1962, s 59

Result:

Compromise approved.  Special costs order refused

Representation:

Counsel:

Plaintiff:     Mr R V Lonnie

First Defendant             :     Ms L J Pettit

Second Defendant         :     Ms L J Pettit

Solicitors:

Plaintiff:     Slee Anderson Pidgeon

First Defendant             :     State Crown Solicitor

Second Defendant         :     State Crown Solicitor

Case(s) referred to in judgment(s):

Sosa v Carter [1978] WAR 123

Case(s) also cited:

McIntosh v Williams [1976] 2 NSWLR 237

Public Trustee v Zoanetti (1945) 70 CLR 266

Ruby v March (1975) 132 CLR 642

1. WISBEY DCJ:  The plaintiff who is the lawful widow of Michael John Currie deceased brings this action pursuant to the Fatal Accidents Act 1959 for the benefit of herself as the deceased's widow, and the deceased's children Dwayne Michael Currie born 19 January 1984, Graeme Scott Currie born 6 January 1985, Shannon Dorothy Currie born 28 February 1988, and Jack Ryan Currie born 31 August 1992.  The deceased died on 29 June 1996 as a result of the negligence of the defendants, negligence having been admitted on 1 May 2000. 

2. The plaintiff seeks leave to compromise the action for the sum of $195,000, and because of the age of the children, the approval of the Court is required in respect of the amounts allocated to each of the children.

3. The deceased was born on 13 August 1953, and was aged 42 years at the date of death.  The material on file demonstrates that he was in receipt of unemployment benefits in the years ended 30 June 1994, 1995 and 1996, and although he was in well paid employment as a truck driver at the date of his death, he had only been in such employment for a relatively short period of time.  The deceased died as a result of acute coronary artery disease, and although he would have survived had he been appropriately treated, it seems improbable that he would thereafter have been able to return to truck driving, or any vocational activity with a significant physical component.  It may well be therefore that had he survived he would not have been able to obtain remunerative sedentary employment, and may have been the recipient of social security benefits for the balance of his life.  The adverse contingencies in this case are of such magnitude that I am satisfied the proposed compromise is in the interests of the infant children, and in reaching that conclusion I have regard to the remarks made by his Honour the Chief Justice in Sosa v Carter [1978] WAR 123.

4. The plaintiff is therefore granted leave to compromise the action for the sum of $195,000 apportioned as follows:

   (a)Dwayne Michael Currie  $    5,218.00

   (b)Graeme Scott Currie  $    5,218.00

   (c)Shannon Dorothy Currie  $  12,492.00

   (d)Jack Ryan Currie  $  20,176.00

   (e)Donna Mary Currie  $151,896.00

5. In satisfaction of the amount apportioned to each of the children the defendants within seven days of service of the order do pay to the Public Trustee the amount apportioned to the said child, for investment on behalf of the said child until he or she attains the age of 18 years, and that such investment be not restricted to the common fund.

6. The defendants pay the Public Trustee's management fee of $476.

7. The Public Trustee be authorised to advance such amounts of the capital as he shall from time to time decide in his discretion as appropriate for the maintenance, advancement or benefit of the child, without being bound by any limitations under the provisions of s 59 of the Trustee's Act 1962 as amended.

8. There be liberty to apply in respect of the investment moneys.

9. In respect of costs I was urged to make a special order that the limitations imposed by the Supreme Court (Contentious Business) Determination 1999 do not apply on the basis that having regard to the amount of work necessarily undertaken, and the complexity of the issues involved, it was just to do so.  In my view this claim does not raise any matters of complexity, nor should its proper preparation have necessitated an involvement of time and effort that would not be properly recognised under the determination.  I am not therefore prepared to make a special costs order.  There is no dispute, and I do order that there be a certificate for counsel's opinion and for three pre‑trial conferences with counsel's attendance thereat.

10. Upon payment by the defendants of the several sums and costs hereinbefore referred to, the defendants are discharged from public liability in respect of this action.