DM v Life Without Barriers
[2016] NSWSC 1536
•1 November 2016
|
New South Wales |
Case Name: | DM v Life Without Barriers |
Medium Neutral Citation: | [2016] NSWSC 1536 |
Hearing Date(s): | 27 October 2016 |
Date of Orders: | 1 November 2016 |
Decision Date: | 1 November 2016 |
Jurisdiction: | Common Law |
Before: | Schmidt J |
Decision: | Consent orders made. |
Catchwords: | PROCEDURE – settlement approval – consent orders made |
Legislation Cited: | Children (Criminal Proceedings) Act 1987 (NSW) |
Cases Cited: | Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357 |
Category: | Principal judgment |
Parties: | DM (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2015/330066 |
Publication Restriction: | None |
Judgment
The Court’s approval of a settlement reached by the parties is sought, s 76 of the Civil Procedure Act2005 (NSW), empowering the Court to give such approval, in cases where a person is under legal incapacity.
There is no question as to the plaintiff’s incapacity, as he is aged under 18 years (see the definition of “person under legal incapacity” in s 3). The application is supported by affidavits sworn by his mother and his solicitor, Mr Marocchi, as well as advice given by his counsel, Mr Woodbury.
The proceedings concern a sexual assault by another minor, which the defendant, a designated agency within the meaning of the Children and Young Persons (Care and Protection) Act 1998 (NSW), admits occurred. Other relevant circumstances admitted include that the plaintiff’s assailant was in his mother’s care for respite, she being an authorised carer under that Act. The defendant does not, however, admit the negligence alleged against it. Its liability for the assault is thus in issue.
In the circumstances the parties agreed that an order should be made, prohibiting the disclosure of the identity of the plaintiff, given the provision made in s 15A of the Children (Criminal Proceedings) Act1987 (NSW) as to the publication or broadcast of names in a way that connects the person with criminal proceedings in circumstances there specified.
A similar question arose in Plaintiff A v Bird; Plaintiff C v Bird [2015] NSWSC 570, where McCallum J concluded that powers given the Court by the Court Suppression and Non-Publication Orders Act 2010 (NSW) should be exercised, restricting disclosure of the identity of children involved in those proceedings, in order to give “coherence to provisions of the Children (Criminal Proceedings) Act” (see at [16]). Her Honour reached that conclusion having in mind the intention evinced by the Children (Criminal Proceedings) Act that the identity of a child who is a victim of a sexual assault should be protected and that the publication of his or her identity should be prohibited, as well as the identity of the mother of such a child, if its publication might lead to the identification of the child.
The evidence to which I will now turn, also satisfies me that an order should be made in this case under the Court Suppression and Non-Publication Orders Act, to ensure that the identity of the plaintiff is not inadvertently disclosed, contrary to what is intended by the Children (Criminal Proceedings) Act.
In evidence is a report of the psychiatrist Dr Akkerman, who diagnosed the plaintiff to be suffering major depression and considered that he had a guarded prognosis and would benefit from treatment by a psychiatrist. There is also a December 2011 expert certificate as to the results of his examination soon after the assault, in evidence.
In her affidavit the plaintiff’s mother deposed to the circumstances in which the assault came to light and its consequences for the plaintiff; the terms of the settlement arrived at; the advice received about the settlement, namely that it was reasonable in the circumstances given the risks of the litigation; her own views and those of the plaintiff about the settlement, which were satisfaction with its terms and a preference for a settlement over what would be involved in a trial; her understanding of the consequences of its acceptance, including as to the possibility of pursuit of further claims against the defendant, deductions which must be made from the settlement sum; and the position as to legal costs.
As to costs it was confirmed at the hearing that the plaintiff would not have to bear costs additional to those revered from the defendant.
It is proposed that the settlement moneys be invested with the NSW Trustee and Guardian until the plaintiff’s 18th birthday. Section 77(3) of the Civil Procedure Act 2005 (NSW) permits the making of such an order.
In his confidential advice the plaintiff’s counsel explained the basis for his advice that the settlement arrived at was a reasonable one. I consider that advice to have a proper basis, in all of the circumstances there discussed.
As explained by Rothman J in Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357 at [32], the Court’s jurisdiction to approve a settlement is protective and “the overriding principle is that the Court will base the approval or disapproval upon the formation of an opinion that the agreement is or is not beneficial to the interests of the person under the incapacity”. That is a matter for the Court to determine.
Having considered all that I have discussed, I am satisfied that the Court’s approval of the settlement should be given. There is here a significant risk that the plaintiff will not succeed at trial. When that is considered together with what such a trial would involve, when compared to the obvious benefits which will flow to the plaintiff from the proceeds of the settlement, the conclusions that the settlement is beneficial to the plaintiff and so should be approved by the Court, are inescapable.
Orders
For those reasons, I order that:
By consent, and without admission of liability:
1. The proceedings be dismissed.
2. The defendant pay the plaintiffs costs of the proceedings, as agreed or assessed.
The Court further notes the parties' agreement that:
3. The defendant will pay to the plaintiff the sum of $327,500.00 in full and final settlement of the claim ('the settlement sum').
4 The defendant and/or its insurer are authorised to pay from the settlement sum any money repayable by the plaintiff to any person or body in respect of health insurance, workers compensation, victims compensation, social services, sick leave payments, make up pay, accident pay, or otherwise and whether in respect of any statute, regulation, award or agreement or otherwise if a demand or notice is served on or given to the defendant, its solicitors or insurer at any time.
5. The plaintiff undertakes to pay out of the settlement sum any money repayable by the plaintiff to any person or body in respect of workers compensation, victims compensation, social services, sick leave payments, make up pay, accident pay, or otherwise which may not have been deducted by the defendant or its insurer under paragraph 4 and pay the parties entitled all outstanding medical, hospital, ambulance and other out of pocket expenses.
6. The defendant may deduct and pay any money payable by the plaintiff to:
(a) the Department of Social Services;
(b) the Commonwealth under the Health and Other Services (Compensation) Act 1995 ("the Act") or the Health and Other Services Compensation Care Charges Act 1995 ("the Compensation Care Act");
(c) Victims Compensation NSW.
and the plaintiff undertakes to sign any documents that are required to give effect to the above.
7. The plaintiff acknowledges that before agreeing to this settlement, the defendant informed the plaintiff that the plaintiff may be liable to pay out of the settlement sum amounts under the Act and the Compensation Care Act.
8. The defendant will deduct from the settlement sum and forward that amount to Medicare Australia, being the amount pursuant to the current Notice of Past Benefits (Notice of Charge) under section 23 and 24 of the Act or a 10% advance payment.
9. Where any payments under paragraphs 4, 6 or 8 is made, no interest is payable in respect of the balance of the settlement sum if the balance of the settlement is paid within 28 days from:
(a) the date of this judgment; or
(b) within 28 days after the defendant receives a satisfactory authority to receive; or
(c) within 28 days after the defendant receives notice of the amount owing under any recovery legislation,
whichever is the latest.
10. The plaintiff cannot recover interest on any amount deducted from the settlement sum under paragraphs 4, 6 or 8.
11. Enforcement of this agreement or judgment is stayed until 28 days after the first day on which the defendant could pay the amount under paragraph 2 without committing an offence under section 32 of the Act.
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