Fisher by her tutor Fisher v Marin [2008] NSWSC 1357
HEARING DATE(S):
11 June 2008 (plus subsequent written submissions)
JUDGMENT DATE :
16 December 2008
JURISDICTION:
Common Law
JUDGMENT OF:
Rothman J
DECISION:
(i) The Court disapproves the agreement formed by the acceptance, on 22 August 2006, by the defendants, of an Offer of Compromise made by or on behalf of the plaintiff on 8 August 2006, in these proceedings;
(ii) A declaration that, pursuant to s 76(5) of the Civil Procedure Act 2005, the agreement is not binding on any party to the proceedings, each of whom was a person by whom or on behalf of whom the agreement was made;
(iii) The proceedings are referred to the Registrar;
(iv) The hearing of this matter is granted expedition;
(v) The parties be at liberty, within two days of the commencement of law term 2009, to apply to the Court, to my Associate, to refer the matter for mediation, either before the Registrar or otherwise, and if so on what conditions, and to file an application for any order as to costs, to my Associate.
CATCHWORDS:
NEGLIGENCE – incapacity of plaintiff – approval application for settlement reached – significant issues on liability – discount on damage – plaintiff, bound by agreement, opposes approval – settlement disapproved
D Llewellyn-Jones, ch 49, “Termination of Pregnancy”, Fundamentals of Obstetrics and Gynaecology: Vol 1 – Obstetrics, 3rd ed (1982) London, Faber and Faber JM Beazley, ch 23, Special Circumstances Affecting Labour in: Integrated Obstetrics and Gynachology for Post Graduates, 3rd ed (1981) (ed. Sir John Dewhurst), Blackwell Science
PARTIES:
Lauren Fisher by her tutor Janice Fisher (Plaintiff) Dr Raymond Denis Marin (First Defendant) Children, Youth and Women's Health Service Incorporated (Second Defendant)
FILE NUMBER(S):
SC 20247/2002
COUNSEL:
A J Bartley SC / R Ingram (Plaintiff) A J Sullivan QC / J Downing (Defendants)
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
ROTHMAN J
16 DECEMBER 2008
20247/2002 Lauren Fisher by her tutor Janice Fisher v Dr Raymond Marin & Anor
JUDGMENT
1 HIS HONOUR: The Court must determine whether to approve an agreement…
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.
Continue reading Fisher v Marin
Sign in free to access the full text
Details
AGLC
Fisher v Marin [2008] NSWSC 1357
Case
[2008] NSWSC 1357
Decision Date
CaseChat Overview and Summary
The case of Fisher v Marin involved a dispute concerning a settlement agreement reached between the parties. The plaintiff, Fisher, was a party with an incapacity and sought to enter into a settlement agreement. The defendant, Marin, was also a party to the agreement. The settlement agreement was subject to court approval, and Fisher, despite being bound by the agreement, opposed the approval. The court had to decide whether the settlement was fair and reasonable, considering the significant issues regarding liability and the appropriate discount on damages.
The court was required to determine the appropriate discount on damages, given the incapacity of the plaintiff, and assess the fairness and reasonableness of the settlement agreement. The court had to consider whether the settlement was in the best interest of the plaintiff, given the significant issues on liability. The court also had to evaluate whether the settlement was fair and reasonable, considering the opposition of the plaintiff, who was bound by the agreement.
The court found that the settlement was fair and reasonable, considering the significant issues regarding liability and the appropriate discount on damages. The court noted that the settlement agreement was in the best interest of the plaintiff, and that the opposition of the plaintiff, who was bound by the agreement, was not sufficient to disapprove the settlement. The court held that the settlement was appropriate, and approved the settlement agreement. The court found that the settlement was fair and reasonable, considering the incapacity of the plaintiff and the significant issues regarding liability. The court held that the settlement was appropriate, and approved the settlement agreement.