Daher v NSW Land and Housing Corporation
[2015] NSWSC 649
•26 May 2015
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Daher v NSW Land and Housing Corporation [2015] NSWSC 649 Hearing dates: 26 May 2015 Date of orders: 26 May 2015 Decision date: 26 May 2015 Jurisdiction: Common Law Before: Hamill J Decision: Orders in accordance with the consent judgment filed 26.5.15.
Catchwords: CIVIL LAW - approval of settlement or compromise - serious injuries - difficulties in establishing liability - settlement approved Legislation Cited: s 76 of the Uniform Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Mohammed (Hamoudi) Daher by his tutor Alissa Daher (Plaintiff)
NSW Land & Housing Corporation (Defendant)Representation: Counsel:
Solicitors:
R Royle (P)
R.W. Seton SC (1D)
E Sheehan (2D)
Stacks Goudkamp (P)
Leighton Hawkes McCabes (1D)
Curwood Lawyers (2D)
File Number(s): 2010/354722
EX TEMPORE Judgment
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HIS HONOUR: The plaintiff has brought an action for damages against the second and third defendants. It is unnecessary to go into the detail but a tragedy befell his family when he fell from the window of his home when he was an eighteen month old child. He is now nine.
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The action was one in negligence against the provider of the housing or assisted housing and a building company, they being the first and second defendants. The plaintiff suffered grave injuries. Those injuries continue to cause him extensive disability and his parents are encumbered with looking after him and, from my reading of the documents, do so with great courage and perseverance.
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The claim has reached the stage where there have been a number of mediations. Two of those were unsuccessful but on the third attempt the parties reached an in principle agreement. That in principle agreement has been fine tuned by reference to an assessment as to legal costs and an understanding on the part of the tutor as to the amount that will be received in the hand, as it were. Because the plaintiff is unquestionably under a legal incapacity any settlement or compromise of the proceedings must be approved by the Court pursuant to s 76 of the Uniform Civil Procedure Act 2005.
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The parties are before me today asking me to grant such an approval. The nature of the jurisdiction that I am here exercising is a protective one and I am required to come to the conclusion that the settlement is in the best interests of the incapacitated plaintiff.
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To reach that conclusion, I have been provided with an affidavit of Alissa Daher, she being the mother and tutor of the plaintiff. Her affidavit sets out the fact that she is satisfied that the settlement or compromise is in the best interests of the plaintiff.
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I also have an affidavit of Tatania White, who is the solicitor for the plaintiff, and she also sets out the fact that she, her counsel and the tutor have reached the conclusion that the nature of the settlement or compromise is in the best interests of the plaintiff.
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The parties now provide me with a consent judgment and when one sees the figures in that consent judgment and then has some understanding of the nature of the injuries that the plaintiff sustained as well as his ongoing disabilities, the numbers seem at first blush to be very low indeed. It would seem that he will require constant care for much of his life so that the numbers in the settlement appear to be quite low.
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However, I have been provided with a comprehensive advice by counsel for the plaintiff, who has considerable experience in the area, and that advice was annexed to the affidavit of Ms White and sets out the method of calculating the damages which in total would come to considerably more than the settlement figure. However, the advice also sets out the difficulties that the plaintiff may encounter if the matter were to be litigated.
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It is unnecessary for me to go into the legal reasons for this but what is clear is, that if liability is disputed, there is a real possibility that the plaintiff would fail in establishing liability on the part of either the first and second defendants. There are evidentiary issues raised based on the word of a witness and I do not detail those. There are questions as to whether or not a breach of duty could be established and, perhaps most potently, there is a difficulty over the question of causation.
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For those reasons, it seems inevitable that the plaintiff and his tutor and his legal representatives have to face the reality that they may end up with nothing if they litigate the case.
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Under the terms of settlement they receive ultimately around $1.15 million inclusive of fund management and that is after the deductions come out and that includes legal costs.
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In all of those circumstances, I am positively satisfied that the settlement proposed is in the best interests of the plaintiff. What I propose to do, given that we are in a busy duty list, which seems to be brimming, is simply to make orders in accordance with the consent judgment filed in court this morning. I will have that sealed, one kept on the court file and the balance to be returned to the parties.
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I congratulate the legal representatives on reaching the settlement.
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I wish Mrs Daher and her family well.
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Amendments
12 June 2015 - Amended D1 Counsel Name
02 June 2015 - Typographical errors amended.
Decision last updated: 12 June 2015
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