Kevin Leon Hill by His Next Friend Beryl Nancy Sly v Kevin Gregory Chester No. 4236 Judgment No. SCGRG 92/572 Number of Pages 3 Damages Assessment

[1993] SASC 4236

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Damages assessment - settlement of personal injury claim approved during the course of trial by the trial Judge. Supreme Court Rules Rule 35.

HRNG ADELAIDE, 18-20 October 1993 #DATE 29:10:1993
Counsel for plaintiff:     Mr G. Holland
Solicitors for plaintiff:    Mcquade Hill and Co
Counsel for defendant:     Mr R. Soulio
Solicitors for defendant:    Phillips Fox

ORDER
Judgment for plaintiff.

JUDGE1 PERRY J In this matter the plaintiff sues for damages for personal injuries suffered in a road accident which occurred on 22 August 1989, when a car which he was driving came into collision with a semi trailer driven by the defendant at Noarlunga Downs. 2. The trial has proceeded before me for some two days, during which time I have heard evidence from the plaintiff and his mother, evidence from two eye witnesses, and the evidence of three specialist medical practitioners. They were a neurosurgeon, a neuropsychologist and a psychiatrist. 3. Before the resumption of the hearing this morning Mr Holland, as counsel for the plaintiff, announced that, subject to the approval of the court, a settlement had been reached between the parties. The terms of settlement provide for the payment of $180,000, plus costs of action to be taxed. 4. The action was instituted by the plaintiff in his own right, but during the course of the hearing, it appeared to me that it may well be that, by reason of the accident injuries, he is a person under a disability within the meaning of Rule 35 of the Supreme Court rules. When I broached this aspect of the matter with counsel, Mr Holland made an oral application for the joinder of the plaintiff's mother, Beryl Nancy Sly, as next friend. I acceded to that application and made an order that she be joined accordingly. 5. It follows that any settlement is caught by rule 35.11 of the Supreme Court rules, and requires the approval of the Court. In the circumstances, having proceeded as far as I have with the trial, I thought it proper that I proceed to consider the question of approval and, furthermore, to do so on an informal basis. 6. I should say that, as well as the medical witnesses who have been called, I have also had the benefit of the reports from a number of other proposed medical witnesses who have, from time to time, examined the plaintiff. 7. In the circumstances, it is unnecessary for me to go into the evidence as to the manner in which the accident occurred, or the nature and extent of the injuries suffered. The evidence as to the relevant aspects of liability and quantum is contained in the material generated during the course of the trial, and will remain on the record of the Court. 8. Mr Holland has disclosed that the settlement has proceeded from the plaintiff's point of view, on the basis of a notional concession of contributory negligence against the plaintiff of something between 5-10 per cent. The evidence given as to liability satisfies me that that would be an entirely appropriate apportionment, and is well within the ambit of what the Court might order with respect to that aspect of the matter. 9. So far as the assessment of damages is concerned, the question of non-economic loss falls to be determined by reference to the scale in the Wrongs Act. The current multiplier is of the order of $1,140. Mr Holland has intimated that he has allowed for something of the order of $40,000 for general damages, which means that the notional scale figure would be a little less than the number 40. In my opinion, that is an entirely appropriate approach as to that head of damage. 10. Past economic loss is apparently estimated by the plaintiff's advisers at a figure of between $15,000 and $17,500. In my opinion, that is an unexceptional figure, particularly given that there is a dispute between the parties that, had it not been for the accident, the plaintiff would have become before now an A-Grade slaughterman. 11. In my opinion it is right to approach the question of future medical expenses on the basis intimated by Mr Holland, that is, that a nominal, if any, amount should be allowed for that head of loss. 12. Future loss of earning capacity has been estimated at $130,000. The plaintiff is in what appears to be secure employment at the moment, and that estimation proceeds on the basis of the loss of a chance. Given my understanding of the evidence so far, I consider that to be a proper figure to attribute to that aspect of the matter. 13. The combination of Beck v Farrelly and Wilson v McLeay damages has been allowed at $5,000 which, if anything, is generous for that aspect of the case. 14. Special damages are to be allowed at $3,200. An amount of some $2,000 has been taken into account for interest. 15. Taking past economic loss at $15,000, the total of the amounts to which I have so far referred is of the order of $195,000. Allowing for apportionment, this gives rise to the proposed settlement figure of $180,000. 16. In my opinion the proposed settlement is for the benefit of the plaintiff and represents a proper compromise of his claim. 17. I have no hesitation in giving approval pursuant to rule 35.11, and I so order. 18. In view of the plaintiff's condition, there will also be an order pursuant to s.88A of the Administration and Probate Act that the settlement monies be paid to Public Trustee, and held and applied by her for the benefit of the plaintiff on the usual terms. 19. I have already been given minutes of order which give expression to the detail of the application of the judgment monies, and I will settle those minutes in consultation with counsel. 20. There will, therefore, be judgment for the plaintiff in the sum of $180,000, together with his costs of action to be taxed, the monies to be held by Public Trustee in accordance with an order in the usual terms.