Howard (also on behalf of her children Angus Michael Howard, Lucy Jane Howard and Dougal Joseph Howard) v Richards; Howard (by her next friend Melanie Howard v Richards

[2017] NSWSC 524

Supreme Court

New South Wales

Medium Neutral Citation:

Howard (also on behalf of her children Angus Michael Howard, Lucy Jane Howard and Dougal Joseph Howard) v Richards;  ; Howard (by her next friend Melanie Howard v Richards;  ; Howard (by his next friend Melanie Howard) v Richards;  ; Melanie (also on behalf of her children Angus Michael Howard, Lucy Jane Howard and Dougal Joseph; Howard) Howard v Richards;  ; Howard by his next of friend Melanie Howard v Richards [2017] NSWSC 524

Hearing dates:

28 April 2017

Decision date:

28 April 2017

Jurisdiction:

Common Law

Before:

McCallum J

Decision:

Terms of settlement approved; orders made as set out in the consent judgment in each case

Catchwords:

CIVIL PROCEDURE – compromise of proceedings involving infants – application for Court approval – where pleadings disclose substantial issue as to liability

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5L
Civil Procedure Act 2005 (NSW), s 76

Category:

Procedural and other rulings

Parties:

2016/57046
Melanie Howard (also on behalf of her children Angus Michael Howard, Lucy Jane Howard and Dougal Joseph Howard (plaintiff)
Robert Thomas Richards (defendant)

 

2016/57047
Lucy Jane Howard (by her next friend Melanie Howard (plaintiff)
Robert Thomas Richards (defendant)

 

2016/57054
Angus Michael Howard (by his next friend Melanie Howard) (plaintiff)
Robert Thomas Richards (defendant)

 

2016/57055
Melanie (also on behalf of her children Angus Michael Howard, Lucy Jane Howard and Dougal Joseph
Howard) Howard v Robert Thomas Richards

  2016/57067
Howard by his next of friend Melanie Howard v Richards

Representation:

Counsel:
P Burke (solicitor) (plaintiffs in all proceedings)
W MacDonnell (solicitor) (defendants in all proceedings)

  Solicitors:
Slater & Gordon Lawyers (plaintiffs in all proceedings)
Holman Webb (defendants in all proceedings)

File Number(s):

2016/570462016/570472016/570542016/570552016/57067

Judgment

1. HER HONOUR: Before the Court are five sets of proceedings for damages (four claims for what is usually termed “nervous shock” and a claim for compensation to relatives). The parties have reached agreement as to the compromise of the proceedings. Four of the proceedings involve infant plaintiffs and accordingly the settlements in those matters require the approval of the Court. Section 76 of the Civil Procedure Act 2005 (NSW) provides that, except with the approval of the Court, there may not be any compromise or settlement of any proceedings to which the section applies. The section applies to proceedings commenced by or on behalf of a person under a legal incapacity, which includes an infant.

2. The application for court approval of the settlement in respect of those four proceedings is supported by an affidavit of the solicitor for the plaintiffs, an affidavit of Melanie Howard (one of the plaintiffs and the mother of the other three plaintiffs) and a confidential advice provided by counsel for the plaintiffs.

3. In short, the circumstances giving rise to the proceedings are that Mr Joseph Howard was killed in a water skiing accident on 22 February 2013. He was water-skiing on that day with a friend, Mr Robert Richards, who is the defendant to all proceedings. The pleadings in each case reveal that the plaintiffs’ claims are based on the contention that Mr Richards embarked on the water-skiing on that occasion as the driver of the boat with the deceased attempting to ski barefoot behind the boat.

4. The statement of claim in each case alleges that Mr Richards breached a duty of care, amongst other things, in failing to ensure that he had an “observer” on the boat with him. It is contended in the pleadings that the presence of an observer would have ensured, before Mr Richards changed the direction of the boat, that the deceased was not being "whipped" outside the wake of the vessel. The accident is alleged to have occurred when the deceased was whipped outside the wake of the vessel and collided with a tree on the shore of the river.

5. The defence in each case asserts that the harm suffered by the deceased was “a result of the materialisation of an obvious risk of a dangerous recreational activity” within the meaning of s 5L of the Civil Liability Act 2002 (NSW). In particular, it is contended in the defences that the deceased was an extremely experienced water-skier who would have been well aware of the requirement for an observer and who had been towed in vessels without an observer on previous occasions. Plainly, the pleadings reveal an issue as to liability.

6. Separately, there is in the material annexed to the affidavit of the solicitor, Mr Paul Burke, a series of medical notes which explain the position of each child. I have particular regard to a note relating to the eldest child, who appears to have suffered the most from the death of his father. The note of the psychologist in relation to him states that he has continued to suffer emotionally since the incident and that he is "aware of the court case into his father's accident". The psychologist records that dealing with the Court case added to the child’s stress and sadness.

7. I have also had regard to the confidential advice, the contents of which I will not repeat in this judgment.

8. The proposed settlement would see the proceedings brought by the mother, Melanie Howard, for nervous shock dismissed with no order as to costs; the same order in respect of each of the claims by each of the children for nervous shock; and, as to the claim by all four members of the family for compensation to relatives, judgment in the sum of $100,000 plus costs agreed in the sum of $50,000.

9. It is the mother's wish that the proceeds of the judgment be apportioned equally between her three children. She does not propose to derive any benefit from the judgment. The material in her affidavit persuades me that that is an appropriate aspect of the settlement.

10. For the reasons I have given I am satisfied that the terms of the settlement should receive the approval of the Court. For those reasons I make the orders set out in the consent judgment in each case.

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Decision last updated: 03 May 2017