Farhat v Foyle - [2023] NSWSC 864

Supreme Court

New South Wales

Medium Neutral Citation: Farhat v Foyle [2023] NSWSC 864
Hearing dates: 24 July 2023
Date of orders: 24 July 2023
Decision date: 24 July 2023
Jurisdiction: Common Law
Before: Ierace J
Decision:
Settlement approved.

Catchwords:
CIVIL PROCEDURE – Application for approval of settlement – Personal injury proceedings commenced on behalf of person under legal incapacity – Whether the Court is satisfied that the proposed settlement is beneficial to the plaintiff

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 66, 67
Compensation to Relatives Act 1987 (NSW)
Motor Accidents Compensation Act 1999 (NSW), s 7A

Cases Cited:
Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Category: Principal judgment
Parties: Abbass Farhat bht Karema Farhat (Plaintiff)
Daniel Michael Foyle (Defendant)
Representation:
Counsel:
A Stone SC (Plaintiff)
J Bruce (Sol) (Defendant)
Solicitors:
Slater and Gordon Lawyers (Plaintiff)
Moray and Agnew Lawyers (Defendant)

File Number(s): 2017/154018

JUDGMENT

This is an application for approval of a proposed settlement of a claim for damages commenced on behalf of Abbass Farhat, who is aged 12, by his mother, Karema Farhat, as his tutor, against Daniel Foyle. The application is made pursuant to s 76 of the Civil Procedure Act 2005 (NSW) (the Act), which provides that, in proceedings commenced on behalf of a person under legal incapacity, if an agreement for a compromise or settlement is made, that person is not bound by it unless it is approved by the Court.
The plaintiff is aged 12. On 21 May 2014, when he was 3 years old, he was severely injured in a motor vehicle collision. Proceedings were commenced on behalf of the plaintiff in this Court on 22 May 2017. In an amended statement of claim filed on 1 March 2021, the plaintiff alleged that he was struck by a vehicle being driven by the defendant on the road outside his residence. The plaintiff suffered a severe traumatic brain injury with a resultant right hemiplegia, an atlantoaxial ligamentous injury, a fractured right tibia and fibula, liver lacerations and pulmonary contusions.
It has been conceded by the plaintiff that the defendant was blameless, within the meaning of s 7A of the Motor Accidents Compensation Act 1999 (NSW), which became common ground pursuant to an amended defence filed on 26 May 2022. A police report that was generated on 17 July 2014 recorded that the plaintiff ran down a driveway and onto the road directly in front of the defendant’s vehicle, which he was driving well below the applicable speed limit.
The compulsory third party (CTP) insurer of the defendant, GIO, has offered to settle the claim in an amount which has been disclosed to the Court, plus costs in an agreed sum. The plaintiff’s tutor has provided instructions to her legal representatives to accept that offer.
Section 76 of the Act provides as follows:

“76 Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity
(1) This section applies to proceedings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 864
Decision Date: 24 July 2023

CaseChat Overview and Summary

The matter of Farhat v Foyle was heard in the Supreme Court of New South Wales. The dispute involved an application for the approval of a settlement agreement in personal injury proceedings. The plaintiff, Farhat, was under legal incapacity at the time the proceedings were commenced, and the defendant, Foyle, was being sued for damages arising from an alleged personal injury incident. The primary issue before the Court was whether it was satisfied that the proposed settlement was in the best interests of the plaintiff, considering her legal incapacity.

The Court needed to determine if the settlement terms were fair and reasonable, and if the approval of the settlement would be beneficial to the plaintiff. This required the Court to carefully consider the evidence presented, including expert medical and financial advice, as well as the views of the plaintiff's legal representatives and guardians. The Court was mindful of its duty to protect the interests of individuals under legal incapacity and ensure that any settlement reached was in their best interests.

After thorough consideration, the Court concluded that the proposed settlement was fair, reasonable, and in the best interests of the plaintiff. The Court was satisfied that the settlement terms provided adequate compensation for the plaintiff's injuries and took into account her future needs and circumstances. The Court also noted the support of the plaintiff's legal representatives and guardians for the settlement, which further reinforced its decision. The Court approved the settlement, and the proceedings were accordingly dismissed.

The Court's final orders included the approval of the settlement agreement and the dismissal of the proceedings with costs to be taxed. The Court emphasised the importance of protecting the interests of individuals under legal incapacity and ensuring that any settlement reached was in their best interests. The Court's decision in this matter provides guidance to legal practitioners on the considerations that should be taken into account when seeking approval of a settlement in personal injury proceedings involving individuals under legal incapacity.

Orders