Kandil by his tutor Kandil v Halliday - [2017] NSWDC 327

District Court

New South Wales

Medium Neutral Citation: Kandil by his tutor Kandil v Halliday [2017] NSWDC 327
Hearing dates: 12 October 2017
Date of orders: 12 October 2017
Decision date: 12 October 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Pursuant to ss 75-77 Civil Procedure Act 2005 (NSW), approve the settlement set out in the Consent Order filed in court today and make orders as follows:
(1) Judgment for the plaintiff for the sum in paragraph 1.
(2) Each party pay his or its own costs of these proceedings, save that the defendant will pay the report fee of Dr Akkerman.
(3) Note the undertaking of Mr Naushad Husaini, the current solicitor for the plaintiff, not to make any application to the NSW Trustee & Guardian for legal costs and that if any application is made in relation to the costs of the previous solicitor, Thomas Booler Lawyers (per Mr Marcel Joukhador), the parties are to have liberty to seek a personal costs order against those solicitors pursuant to s 99 Civil Procedure Act 2005 (NSW).
(4) Note the provisions of paragraphs 3-7.
(5) The net sum remaining after the deductions referred to in paragraphs 2 and 3, namely the sum in paragraph 4, is to be paid direct to the NSW Trustee & Guardian for investment until the plaintiff’s 18th birthday.
(6) Having regard to the manner in which the report of Dr Akkerman has failed to diagnose the plaintiff’s condition in a manner consistent with the Code of Conduct, refer Dr Akkerman’s report to the Health Care Complaints Commission.

Catchwords: TORT – personal injury – minor brings action for damages for psychiatric injury following rear end collision – unsatisfactory medical evidence and delay by solicitor – whether settlement of the claim should be approved under ss 75 – 77 Civil Procedure Act 2005 (NSW) – settlement approved
Legislation Cited: Civil Liability Act 2002 (NSW), s 31
Civil Procedure Act 2005 (NSW), ss 75-77 and 99
Cases Cited: Oshlack v Richmond River Council (1998) 193 CLR 72
Pascoe v Edsome Pty Ltd (No 2) [2007] NSWSC 544
Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96
Category: Principal judgment
Parties: Plaintiff: Nuh Kandil by his tutor Mohammad Abdullah Kandil
Defendant: Maxine Halliday
Representation:
Counsel:
Plaintiff: Mr J de Greenlaw
Defendant: Ms J Gumbert
Solicitors:
Plaintiff: Thomas Booler & Co
Defendant: QBE In House Legal

File Number(s): 2016/172920
Publication restriction: None

Judgment

This is an application for approval of a settlement in proceedings involving a motor vehicle accident where the plaintiff was a passenger in a motor vehicle.
The circumstances of the accident indicate that it was a rear end collision of a very minor nature. According to the general practitioner’s records, the plaintiff was seen on the day of the accident and complained of pain in the neck and to the lower back, but when the plaintiff was next examined on 1 December and thereafter, there was no further reference to any physical injury. The plaintiff had…

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: [2017] NSWDC 327
Decision Date: 12 October 2017

CaseChat Overview and Summary

The case of Kandil by his tutor Kandil v Halliday was heard in the Supreme Court of New South Wales. The plaintiff, a minor, brought an action for damages for psychiatric injury arising from a rear-end collision. The defendant, Halliday, was found liable for the accident and the court was tasked with determining the appropriate settlement of the claim. The case involved challenges such as unsatisfactory medical evidence and delays caused by the plaintiff's solicitor. The court was required to decide whether to approve the settlement under sections 75 to 77 of the Civil Procedure Act 2005 (NSW), considering the interests of the minor plaintiff.

In assessing the settlement, the court took into account the medical evidence provided by Dr Akkerman, which was found to be inconsistent with the Code of Conduct. The delay in the proceedings due to the plaintiff's solicitor also played a role in the court's decision. Despite these issues, the court approved the settlement, noting the need to protect the interests of the minor. The court ordered that the net sum from the settlement be paid to the NSW Trustee & Guardian for investment until the plaintiff's 18th birthday, and also referred Dr Akkerman's report to the Health Care Complaints Commission.

The final orders of the court included judgment for the plaintiff for the specified sum, each party to bear their own costs, with the defendant paying the report fee of Dr Akkerman. Additionally, the court noted the undertaking of the current solicitor for the plaintiff not to apply to the NSW Trustee & Guardian for legal costs, and the provisions regarding the payment and investment of the settlement sum. The court also highlighted the importance of adhering to professional standards in medical reporting.

This case underscores the court's role in overseeing settlements involving minors and ensuring that the settlement is in the best interest of the plaintiff, taking into account the quality of evidence and the conduct of the parties involved.

Orders

Orders of the court

Pursuant to ss 75-77 Civil Procedure Act 2005 (NSW), approve the settlement set out in the Consent Order filed in court today and make orders as follows:

(1) Judgment for the plaintiff for the sum in paragraph 1.

(2) Each party pay his or its own costs of these proceedings, save that the defendant will pay the report fee of Dr Akkerman.

(3) Note the undertaking of Mr Naushad Husaini, the current solicitor for the plaintiff, not to make any application to the NSW Trustee & Guardian for legal costs and that if any application is made in relation to the costs of the previous solicitor, Thomas Booler Lawyers (per Mr Marcel Joukhador), the parties are to have liberty to seek a personal costs order against those solicitors pursuant to s 99 Civil Procedure Act 2005 (NSW).

(4) Note the provisions of paragraphs 3-7.

(5) The net sum remaining after the deductions referred to in paragraphs 2 and 3, namely the sum in paragraph 4, is to be paid direct to the NSW Trustee & Guardian for investment until the plaintiff’s 18th birthday.

(6) Having regard to the manner in which the report of Dr Akkerman has failed to diagnose the plaintiff’s condition in a manner consistent with the Code of Conduct, refer Dr Akkerman’s report to the Health Care Complaints Commission.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kandil by his tutor Kandil v Halliday [2017] NSWDC 327
Hearing dates:	12 October 2017
Date of orders:	12 October 2017
Decision date:	12 October 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Pursuant to ss 75-77 Civil Procedure Act 2005 (NSW), approve the settlement set out in the Consent Order filed in court today and make orders as follows: (1) Judgment for the plaintiff for the sum in paragraph 1. (2) Each party pay his or its own costs of these proceedings, save that the defendant will pay the report fee of Dr Akkerman. (3) Note the undertaking of Mr Naushad Husaini, the current solicitor for the plaintiff, not to make any application to the NSW Trustee & Guardian for legal costs and that if any application is made in relation to the costs of the previous solicitor, Thomas Booler Lawyers (per Mr Marcel Joukhador), the parties are to have liberty to seek a personal costs order against those solicitors pursuant to s 99 Civil Procedure Act 2005 (NSW). (4) Note the provisions of paragraphs 3-7. (5) The net sum remaining after the deductions referred to in paragraphs 2 and 3, namely the sum in paragraph 4, is to be paid direct to the NSW Trustee & Guardian for investment until the plaintiff’s 18th birthday. (6) Having regard to the manner in which the report of Dr Akkerman has failed to diagnose the plaintiff’s condition in a manner consistent with the Code of Conduct, refer Dr Akkerman’s report to the Health Care Complaints Commission.
Catchwords:	TORT – personal injury – minor brings action for damages for psychiatric injury following rear end collision – unsatisfactory medical evidence and delay by solicitor – whether settlement of the claim should be approved under ss 75 – 77 Civil Procedure Act 2005 (NSW) – settlement approved
Legislation Cited:	Civil Liability Act 2002 (NSW), s 31 Civil Procedure Act 2005 (NSW), ss 75-77 and 99
Cases Cited:	Oshlack v Richmond River Council (1998) 193 CLR 72 Pascoe v Edsome Pty Ltd (No 2) [2007] NSWSC 544 Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96
Category:	Principal judgment
Parties:	Plaintiff: Nuh Kandil by his tutor Mohammad Abdullah Kandil Defendant: Maxine Halliday
Representation:	Counsel: Plaintiff: Mr J de Greenlaw Defendant: Ms J Gumbert Solicitors: Plaintiff: Thomas Booler & Co Defendant: QBE In House Legal
File Number(s):	2016/172920
Publication restriction:	None