Hopkins bht the New South Wales Trustee and Guardian v State of New South Wales

[2017] NSWSC 1733

Supreme Court

New South Wales

Medium Neutral Citation:	Hopkins bht the New South Wales Trustee and Guardian v State of New South Wales [2017] NSWSC 1733
Hearing dates:	11 December 2017
Decision date:	11 December 2017
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [19].
Catchwords:	APPROVAL OF SETTLEMENT – claim in negligence against State of NSW arising from sexual and emotional abuse alleged to have been perpetrated by foster parents while plaintiff was a ward of the State – settlement approved – substantial sum – in the interests of the plaintiff – benefits of resolution of such matters
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), s 24 Civil Procedure Act 2005 (NSW), s 76 Health and Other Services (Compensation) Act 1995 (Cth), ss 22, 24, 25 Health and Other Services (Compensation) Care Charges Act 1995 (Cth) Legal Profession Uniform Law Application Act 2014 (NSW), s 70 Victims Rights and Support Act 2013 (NSW)
Category:	Principal judgment
Parties:	Chantelle Hopkins by her tutor the New South Wales Trustee and Guardian (Plaintiff) State of New South Wales (Department of Family and Community Services) (Defendant)
Representation:	Counsel: K Nomchong SC/N Broadbent (Plaintiff) J Graham (Solicitor) (Defendant)   Solicitors: Carroll & O’Dea Lawyers (Plaintiff) Crown Solicitor’s Office (Defendant)
File Number(s):	2014/254372

Judgment – EX Tempore

Introduction

1. The parties to these proceedings have agreed that they ought be resolved. The approval of this Court is required pursuant to s 76 of the Civil Procedure Act 2005 (NSW) as the plaintiff’s affairs are subject to the management of the New South Wales Trustee and Guardian.

2. Ms Nomchong SC, who appears with Mr Broadbent on behalf of the plaintiff, has taken me through the evidence in support of the plaintiff's claim. She has also read an affidavit dated 5 December 2017 of Marie Bernadette Rice, the legal officer employed by the New South Wales Trustee and Guardian in the Legal Specialist Services Division who has acted as tutor for the plaintiff for the purposes of her claim against the defendant, State of New South Wales.

3. The plaintiff's claim arises from the conduct of the defendant, the State of New South Wales, in placing her in, and not removing her from, the custody of Ruth and Roger Hope who acted as her foster parents for a significant period during her childhood and adolescence. The circumstances surrounding the claim can be shortly stated.

The basis of the plaintiff’s claim for damages

4. On 17 September 1998, when the plaintiff was almost 4 years old, she was declared a ward of the State of New South Wales until the age of 18 years. As a ward of the State, she was entitled to have the State of New South Wales act in her interests. As her guardian it owed her fiduciary duties as well as a duty of care. Her vulnerability as a ward of the State, particularly one of such tender years, is obvious. She was placed with Ruth and Roger Hope, who also had a number of other foster children and ran a childcare centre.

5. It was the plaintiff's case that, had the State of New South Wales properly discharged the duties they owed to her, she would have been removed from the placement with Ruth and Roger Hope which, on her case, was manifestly unsuitable having regard to the inappropriate behaviour of both Ruth and Roger Hope in bringing up a child such as the plaintiff, or indeed any child.

6. The matters relied upon by the plaintiff in support of the claim and in support of the application for approval are as follows. The defendant learned in 2003 that one of the plaintiff's foster sisters had been sexually abused by Roger Hope in 2003 when she reported the abuse to the Department of Community Services (DoCS). For reasons which do not emerge from the evidence relied on in support of the application for approval, no action was taken by DoCS at that time. However, the plaintiff's foster sister, Felicity, swore an affidavit to that effect which was to be relied upon by the plaintiff in these proceedings had they not been resolved.

7. The defendant was also aware of the contents of various “risk of harm” reports which were prepared in relation to the plaintiff pursuant to s 24 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

8. By 2005, the matters contained in a risk of harm report were such as to lead the defendant to arrange for the plaintiff to be assessed by a psychiatrist. Notwithstanding these matters, the defendant returned the plaintiff to the custody of Ruth and Roger Hope. As a result of the defendant’s referral, the plaintiff was assessed by a psychiatrist, Associate Professor Quadrio, in 2005. It was the plaintiff's case that, had the opinion of Associate Professor Quadrio and her recommendations been taken into account, as it is alleged they should have been, the plaintiff would have been removed from the custody of Ruth and Roger Hope in about September 2005.

9. In late 2005, subsequent to Associate Professor Quadrio’s assessment, the evidence adduced by the plaintiff establishes that Mr Hope began sexually abusing the plaintiff. This sexual abuse continued for the next four years and had, on the plaintiff's case, a very significant detrimental effect on her and caused her to suffer chronic post-traumatic stress disorder. It was her case that the substance abuse from which she later suffered was a result of that sexual abuse. The plaintiff relied on expert evidence to the effect that the offences she committed which led to her incarceration were a direct and natural result of the sexual abuse which she sustained as a young girl, in circumstances where she was entitled to the protection of the State.

10. In 2016 the plaintiff's solicitors retained Associate Professor Quadrio to assess the plaintiff. Her opinion was to be relied upon by the plaintiff had the matter not been resolved. The warnings contained in the assessment which Associate Professor Quadrio made in September 2005 went unheeded. The plaintiff remained with Ruth and Roger Hope and suffered damage accordingly.

11. I note that the matter has been resolved on terms which involve an express note that, although the defendant consents to the resolution of the proceedings on the terms proposed, it does not make any admission as to liability. For this reason, I have been, I hope, careful in giving these reasons not to make findings about what would have occurred had the case gone to final hearing. However, it is necessary for the purposes of my deciding whether to grant this Court's approval under s 76 of the Civil Procedure Act2005 (NSW) for me to come to some assessment of whether the settlement is in the interests of the plaintiff and, accordingly, it is necessary for me to form some assessment of the apparent strength of the plaintiff's case and the benefits to the plaintiff in resolving the proceedings on the terms proposed.

The proposed settlement

12. The sum which has been proposed as a settlement amount is that there be judgment for the plaintiff in the sum of $990,000 plus costs as agreed or assessed.

13. I need hardly remark that a settlement sum of that amount reflects an acknowledgment or concession by the State of New South Wales that it has breached its duty to the plaintiff and caused her substantial loss, although I note that there has been no formal admission of liability.

14. I have read the material relied upon by the plaintiff in support of this application for approval of the settlement. This material comprises an affidavit of Emily Katheklakis of 4 December 2017 to which are annexed relevant documents, including the medical reports to which I have referred, and, importantly for present purposes, a confidential advice which is very detailed which has been prepared by Ms Nomchong SC and Mr Broadbent. I note the conclusion expressed in that advice that they consider it to be in the best interests of the plaintiff to settle the proceedings at the sum agreed.

15. I have also read and taken into account the affidavit of Marie Rice who has relevantly acted as the tutor for the plaintiff since 20 April 2017.

Conclusion

16. Proceedings of this nature inevitably take a very substantial toll on plaintiffs. For that reason, if they can be settled at a fair and just amount, the settlement can often be very much to the benefit of a plaintiff. Where a defendant has come to a figure which, in my view, represents a very substantial award which is reflective of the harm which appears to have been done to the plaintiff, it is, in my view, in the interests of a plaintiff for the Court to approve the settlement.

17. I also regard it as beneficial for a plaintiff in the position of Chantelle Hopkins to appreciate that the State of New South Wales was prepared to offer this substantial sum as an acknowledgement, although not a formal admission of liability, of the harm that she has suffered and an indication of the defendant’s willingness to compensate the plaintiff for that harm.

18. I note that various deductions are to be made from the settlement sum which have been detailed in the confidential advice, as well as the affidavit of Marie Rice. I also note that the Centrelink repayment may well be significantly less than estimated. Ms Nomchong has endeavoured to estimate the amount of the gap between recoverable and unrecoverable legal costs. She has estimated that the discrepancy would be likely to be no more than $50,000. In light of the other amounts to be deducted as referred to in Ms Rice's affidavit and Ms Nomchong's estimate, I am satisfied that the amount to be paid to the plaintiff once those deductions from the amount of $990,000 have been made will represent a settlement of the proceedings which is in her interests. In those circumstances I am satisfied that it is appropriate for this Court approve the settlement under s 76 of the Civil Procedure Act.

Orders

19. For those reasons, I make orders in terms of the short minutes of order which have been handed up to me and have been signed by the parties. These orders are as follows:

1. Judgment for the plaintiff in the sum of $990,000 plus costs as agreed or assessed.

2. The defendant shall be at liberty to deduct and pay from the said sum any moneys payable or repayable by the plaintiff to any person or body whether in respect of Workers’ Compensation or Social Services or Medicare Benefits or Nursing Home Benefits or otherwise concerning which any demand or notice has been or may be served on or given to the defendant and also any moneys paid or payable pursuant to the Health and Other Services (Compensation) Act 1995 (Cth) or the Health and Other Services (Compensation) Care Charges Act 1995 (Cth).

3. The plaintiff undertakes and agrees to pay out of the said sum any moneys payable or repayable by the plaintiff to any person or body whether in respect of Workers’ Compensation or Social Services or pursuant to Victims Rights and Support Act 2013 (NSW) or pursuant to the Health and Other Services (Compensation) Act 1995 (Cth) or otherwise which may not have been deducted by the defendant pursuant to paragraph 2 hereof and also to pay to the parties entitled all outstanding medical, hospital, ambulance and other out of pocket expenses.

4. No interest shall be payable on the judgment herein if said be paid within 28 days after:

1. receipt of filed Consent Judgment/Orders; or

2. within 28 days after the receipt of an Authority to Receive satisfactory to the defendant; or

3. within 28 days after receipt by the defendant of a notice concerning any charge repayable to the Department of Social Security (Centerlink); or

4. within 28 days after receipt by the defendant of a notice from the Managing Director of Medicare Australia under Section 24 or 25 of the Health and Other Services (Compensation) Act 1995; or

5. whichever is the later.

6. No interest shall be payable on the costs of these proceedings as agreed or assessed referred to in paragraph 1 above if the said costs are paid within 28 days of:

1. the date on which the said costs have been agreed to by the parties; or

2. receipt by the defendant of a Certificate as to Determination of costs pursuant to s 70 Legal Profession Uniform Law Application Act 2014 (NSW) following assessment of costs.

7. The plaintiff acknowledges that in accordance with section 22 of the Health and Other Services (Compensation) Act 1995 (Cth), the plaintiff has been informed of a possible liability to pay amounts under the said Act or under the Health and Other Services (Compensation) Care Charges Act 1995 (Cth).

8. The defendant is to pay the judgment amount in accordance with paragraph 4 and less any deductions required to be paid as specified in paragraphs 2 and 3 to the New South Wales Trustee and Guardian.

9. These terms not to be disclosed other than as necessary:

1. to fulfil the requirements of the Health and Other Services (Compensation) Act 1995 (Cth) and Centrelink and/or;

2. for the defendant to seek to recover from any party person or body, in whole or in part, amounts paid to the plaintiff pursuant to these terms.

**********

Decision last updated: 14 December 2017