David Supple by his tutor Rachel Supple v Bellingen Shire Council
[2016] NSWSC 1882
•16 December 2016
Supreme Court
New South Wales
Medium Neutral Citation: David Supple by his tutor Rachel Supple v Bellingen Shire Council [2016] NSWSC 1882 Hearing dates: 16 December 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Common Law Before: Campbell J Decision: I approve the compromise of the litigation in accordance with s 76(3) of the Civil Procedure Act 2005;
By and with the consent of the parties I order judgment in accordance with term 1 and 2 of the Consent order;
I make orders for payment in and disbursement in accordance with term 3 (a) to (d);
I note the agreement of the parties recorded in terms 4, 5, 6;
Grant liberty to the parties to apply with 7 days’ notice;
I direct the Registrar not to comply with Order 3(b) except upon production of the Trustee’s written consent;
I direct seal of the court be affixed to the consent judgment.Catchwords: TORT – negligence - Council – maintenance of roadways – where cyclist suffered severe head and brain injuries after hitting “shove” in road – highway cases notoriously difficult – confidential advice - best interests of plaintiff - settlement approved by Court Legislation Cited: Civil Liability Act 2002 (NSW) ss 43A, 45 Cases Cited: Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512
North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240Category: Procedural and other rulings Parties: David Supple by his tutor Rachel Louise Supple (Plaintiff)
Bellingen Shire Council (Defendant)Representation: Counsel: I Roberts SC with M Perry (Plaintiff)
C. Coventry (Defendant)
M.G. Fishburn (Plaintiff)
Sparke Helmore Lawyers (Defendant
File Number(s): 2013/364982
ex tempore judgment (rEVISED)
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I am asked to approve settlement of an action on behalf of Mr David Supple by his tutor, his wife, Rachel Louise Supple.
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Mr Supple received catastrophic head and brain injuries on 20 February 2011 when he fell from his bicycle whilst descending the Waterfall Way between Dorrigo and Bellingen. It appears on the whole of the evidence that his bicycle probably came into contact with a deformation of the surface of the carriageway referred to as a “shove”. The shove consisted of, in cross-section, a wave-like defect in the surface of the road with a depression followed immediately by a protrusion. The better view of the expert evidence seems to be that it was the result of wear on the surface of the roadway, probably as a result of use by heavy vehicles.
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Highway cases are notoriously difficult for plaintiffs to win. There are greater complications these days than there were following the decision of the High Court in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512. The complications are created by the requirements of s 45 and s 43A of the Civil Liability Act 2002 (NSW). These matters have been admirably explained and expounded in the joint memorandum of Mr Ian Roberts SC and Mr Perry of counsel, which I have had the advantage of reading for the purpose of considering whether I should approve this settlement.
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The evidence indicates that the defect had been identified by someone on behalf of the council prior to Mr Supple's accident because yellow paint of the type people are familiar with seeing on footpaths and roadways had been put around it prior to the day of the accident. The evidence put together in a very careful manner by Mr Roberts' instructing solicitor, Mr Campbell, demonstrated that funding had probably been requested from Roads and Maritime Services by the council quite some months before Mr Supple's accident. There had also been a prior cycling accident at the same location probably involving the same defect.
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Notwithstanding that evidence which undoubtedly is of assistance in proof of the plaintiff's case, the difficulty remains, in accordance with the decision of the Court of Appeal in North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240, of proving that an officer of the council responsible for expending its sums and, indeed, an officer of the RMS similarly so responsible was actually aware not only of the deformation in the road but also of the particular hazard it presented to cyclists.
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Moreover, the standard of care in cases against public authorities is attenuated by the requirements of s 43A of the Civil Liability Act which are derived, in origin anyway, from the doctrine of manifest unreasonableness known to administrative law. This, I suppose, reduces the bar for public authorities and increases it correspondingly for plaintiffs seeking to prove a case against a public authority.
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The amount proposed, whilst not an inconsiderable sum, is far less than the amount that would have been awarded as compensatory damages had Mr Supple been successful in his case. However, for the reasons explained, I am satisfied that this is a case in which compromise, even considerable compromise, is called for.
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I have had the benefit of the annexures to the affidavits of the plaintiff’s tutor and Mr Campbell which demonstrate that, notwithstanding its comparative modesty in overall terms having regard to the severity of the plaintiff's injuries, Mr Supple can be maintained in an appropriate facility by prudent and judicious management of the fund. Mr Campbell has obtained a proposal and an opinion about that from a reputable organisation known as Catalyst Private Wealth.
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Mr Supple's circumstances until November of this year were that he was being cared for at home by his wife and children, but the evidence satisfies me that the burden of that care has taken a great toll of them over the last five or so years. The complications of Mr Supple's brain damage have led to the traumatic onset of dementia which makes him, to put it in mild terms, it seems to me from reading the material, a very difficult person to live with. The better view of the evidence put together in the case, I think from both sides of the record, was that maintaining him at home was simply unsustainable.
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I am satisfied that he is in an appropriate facility and that the proposed settlement will maintain him in that facility in better circumstances than he would be in were he relying upon Social Security or the family's ordinary assets. For these reasons, I am of the opinion that the proposed settlement is certainly in Mr Supple's best interests and that having regard to its availability, it would be imprudent for those advising him to chance a better result at trial, given the difficulties to which I have referred. In the circumstances, I approve the compromise of the litigation in accordance with the provisions of section 76(3) of the Civil Procedure Act 2005.
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The parties have reduced the terms of the settlement to writing in a document entitled "Consent Judgment" signed by Mr Roberts SC, and Ms Coventry who appears for the defendants today. I will make orders in accordance with that document which I will also sign and date today.
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With the consent of the parties, I order judgment in accordance with term 1 of the consent order. I make an order in accordance with term 2 of the consent order. I make orders for payment in and disbursement in accordance with term 3(a) to (d). I note the agreement of the parties recorded in terms 4, 5 and 6 and I grant liberty to the parties to apply on seven days’ notice in accordance with term 7. I direct the Registrar not to comply with order 3(b) except upon production of the trustee's written consent. I direct that the seal of the Court be affixed to the signed consent judgment and that copies may be returned to the parties.
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Decision last updated: 21 December 2016
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