Horton v Kennedy

[2016] ACTSC 123

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Horton v Kennedy

Citation:

[2016] ACTSC 123

Hearing Dates:

6, 8 & 9 June 2016

DecisionDate:

9 June 2016

Before:

Mossop AsJ

Decision:

See [29]

Catchwords:

TRUSTS AND TRUSTEES – Application for the approval of a compromise of proceedings – Matter involving claim for compensation to relative under Ch 3 of the Civil Law (Wrongs) Act 2002 – Infant plaintiffs – Risk of the plaintiffs failing on liability if matter proceeded to a contested hearing – Difficulties involved in assessing quantum – Proposed compromise found to be reasonable – Appointment of trustee company rather than the Public Trustee and Guardian – Form of trust deed

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT), ss 25, 27

Public Trustee and Guardian Act 1985 (ACT), ss 25, 25A

Cases Cited:

Hulanicki v Walton [2014] ACTSC 17

Narayan bhnf Wignall v Morphett [2010] ACTSC 9

Singh v Calvary Hospital ACT Inc (No 2) (2009) 3 ACTLR 247

Texts Cited:

Harold Luntz, Assessment of damages for personal injury and death (LexisNexis Butterworths, 4^th ed, 2001)

Parties:

Tanya Horton (First Plaintiff)

Jake Horton bhlg Tanya Horton (Second Plaintiff)

Jamei Horton bhlg Tanya Horton (Third Plaintiff)

Ebony Horton bhlg Tanya Horton (Fourth Plaintiff)

Glenn Nicholas Kennedy (First Defendant)

Bevan Smart (Second Defendant)

Representation:

Counsel

Mr I Bradfield (Plaintiffs)

Ms V Wilkinson (Defendants)

Solicitors

Maurice Blackburn Lawyers (Plaintiffs)

Sparke Helmore (Defendants)

File Number:

SC 449 of 2012

MOSSOP AsJ:

1. This is an application for the approval of a compromise of proceedings brought by four members of the same family against two defendants. The first plaintiff is Tanya Horton. She is also the litigation guardian for the second, third and fourth plaintiffs Jake, Jamei and Ebony Horton, her children. The claim is, in part, a claim for compensation to relatives under Ch 3 of the Civil Law (Wrongs) Act 2002 (CLW Act), although there are also nervous shock claims for which amounts have been included in the proposed settlement.

1. Because the second, third and fourth plaintiffs are minors, amounts paid pursuant to the compromise, if approved, must be paid into Court. The plaintiffs also seek that the court “otherwise direct” for the purposes of s 25 of the Public Trustee and Guardian Act 1985 so as to permit the money to be paid out to a trustee company rather than to the Public Trustee and Guardian.

1. In support of the application, the plaintiff relied upon:

(a)Affidavit of Tanya Horton dated 1 June 2016;

(b)Affidavit of Jacinta Northam dated 1 June 2016;

(c)Affidavit of Richard Navakas dated 1 June 2016;

(d)Affidavit of Geoffrey Worth dated 31 May 2016;

(e)Exhibits 1 and 3, two opinions of Mr Bradfield of counsel which had not been served and which I treated as confidential;

(f)Exhibit 2, a bundle of documents including the findings of the coroner and various expert reports;

(g)Exhibit 4, a draft trust deed;

(h)Exhibit 5, an amended draft trust deed; and

(i)Exhibit 6, an estimate of the funds management…