Kaye Edith Fitzgerald as Executor of the Estate of the Late Kenneth Thomas Fitzgerald (Dec) v Shaw Aiton Australia Pty Ltd

[2014] WASC 274

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   KAYE EDITH FITZGERALD AS EXECUTOR OF THE ESTATE OF THE LATE KENNETH THOMAS FITZGERALD (DEC) -v- SHAW AITON AUSTRALIA PTY LTD [2014] WASC 274

CORAM:   LE MIERE J

HEARD:   ON THE PAPERS

DELIVERED          :   31 JULY 2014

FILE NO/S:   CIV 2897 of 2010

BETWEEN:   KAYE EDITH FITZGERALD AS EXECUTOR OF THE ESTATE OF THE LATE KENNETH THOMAS FITZGERALD (DEC)

Plaintiff

AND

SHAW AITON AUSTRALIA PTY LTD
Defendant

POWER TECHNOLOGIES PTY LTD
Third Party

Catchwords:

Application for leave to compromise a claim

Legislation:

Fatal Accidents Act 1959 (WA)

Result:

Application granted

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     No appearance

Third Party  :     No appearance

Solicitors:

Plaintiff:     Slater & Gordon Lawyers

Defendant:     SRB Legal

Third Party  :     Firths

Case(s) referred to in judgment(s):

Nil

1. LE MIERE J:  The plaintiff is the executor of the estate of Kenneth Thomas Fitzgerald who died on 16 April 2011.  This action was commenced by the deceased in his lifetime claiming common law damages for mesothelioma.  The claim for damages survives for the benefit of the deceased's estate and the plaintiff brings a claim for damages under the Fatal Accidents Act 1959 (WA).

2. The deceased was born on 22 May 1944 and was aged 66 years at the date of his death.  He was in a de facto relationship with the plaintiff from 1982.  The deceased had two children.  They were children of his relationship with the plaintiff.  The oldest child, Scott Thomas Fitzgerald, was born on 14 February 1989, is now aged 25 and is independent and working.  The younger child, Thomas Hamilton Fitzgerald, was born on 21 August 1997 and is now aged 16.  Thomas was dependent upon the deceased at the time of his death.

3. Liability and quantum of damages were in issue in the proceedings issued by the deceased and remained in issue after the plaintiff, as executor of the estate of the deceased, became plaintiff in the action.  A compromise has been agreed in principle between the plaintiff and the defendant.  The terms of the compromise are reflected in the orders now sought by the plaintiff:

   1.There be judgement for the Plaintiff in these proceedings (or deed of compromise entered into to settle the Plaintiff's claim) in the sum of $425,000 ('settlement sum');

   2.The settlement sum of $425,000 be apportioned as follows:

   (1)$56,550.00 to Thomas Hamilton Fitzgerald (Date of Birth 21 August 1997).

   (2)$11,987.05 to HBF.

   (3)$2,932.80 to Medicare Australia.

   (4)The remainder to the deceased's estate.

   3.The Plaintiff have leave to compromise the claim for Thomas Hamilton Fitzgerald in these proceedings pursuant to Order 70 Rule 10 of the rules of Supreme Court 1971 in the sum of $56,550.00

   4.Within 14 days of the date of this Order the Defendant do pay to the Public Trustee of Western Australia ('Trustee') the sum of $56,550.00 for Thomas Hamilton Fitzgerald for investment on trust ('the Court Compensation Trust') for the said Thomas Hamilton Fitzgerald until he attains the age of 18 years, such investment not to be restricted to the common fund.

   5.The Trustee of the Court Compensation Trust be empowered and authorised to hold and in its discretion apply the whole or any part of the income and/or capital of the Court Compensation Trust from time to time for the maintenance, advancement or benefit of Thomas Hamilton Fitzgerald.

   6.There be liberty to apply in respect of the investment monies.

   7.Within 14 days of the date of this Order the Defendant do pay the sum of $1,400.00 to Medicare Australia.

   8.Within 14 days of the date of this Order the Defendant do pay the sum of $11,987.05 to HBF.

   9.Within 14 days of the date of this Order the Defendant do pay the balance of damages to the Plaintiff.

   10.Upon payment by the Defendant of the said sums the Defendant shall be discharged from any further liability in respect of all claims by and on behalf of the deceased's relatives pursuant to the Fatal Accidents Act 1954‑1984, as amended and estate of the deceased pursuant to the Law Reform (Miscellaneous Provisions) Act 1941, as amended.

Matters of which the court is satisfied

1. The application is supported by the opinion of independent counsel, Charmaine Holyoak‑Roberts dated 28 June 2013 and a supplementary opinion of 6 October 2013.  Ms Holyoak‑Roberts' opinion is confidential.  There has been no waiver of legal professional privilege in the opinion.  In her opinion Ms Holyoak‑Roberts recommends that the compromise settlement is in the interests of the dependents of the estate of the deceased.  Counsel says that in her opinion it is in the best interest of Thomas Hamilton Fitzgerald to accept the compromise settlement and the proposed apportionment of the settlement sum.  I have read Ms Holyoak‑Roberts' opinion and supplementary opinion.  I am satisfied that the plaintiff's case, and in particular the claim of Thomas, has received proper consideration by Ms Holyoak‑Roberts and is a reasonable opinion.  I have read and considered the affidavit of the plaintiff's solicitor, Simon Millman, sworn 28 April 2014.  I am satisfied that Mr Millman has considered and understands Ms Holyoak‑Roberts' opinion and has given proper consideration to the proposed compromise.  I have read and considered the affidavits of the plaintiff sworn 9 May 2014 and 11 July 2004 in support of this application for leave to compromise.  I am satisfied that the plaintiff has considered and understood Ms Holyoak‑Roberts' opinion and the advice of Mr Millman, has given proper consideration to the proposed compromise and requests that the court grant leave to compromise in the terms outlined.

2. Having regard to the matters set out in the affidavits of the plaintiff and Mr Millman and the opinion of Ms Holyoak‑Roberts I am satisfied that the facts relevant to the case of Thomas have been brought together and considered by the plaintiff, her solicitors and independent counsel and I am of opinion that the proposed compromise will be of benefit to Thomas.

Orders

1. I approve the proposed compromise.  There will be orders in the terms sought by the plaintiff which are set out earlier in these reasons.