Kotevski v Heuser

[2011] VCC 953

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-11-01382

KRSTE KOTEVSKI	Plaintiff
(a person under a disability who sues by his litigation guardian PAVLINA KOTEVSKA)
v
PHILLIP DAVID HEUSER	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF RULING:	17 May 2011
CASE MAY BE CITED AS:	Kotevski v Heuser
MEDIUM NEUTRAL CITATION:	[2011] VCC 953

RULING

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Catchwords: Infants compromise – offer lower than Counsel’s assessment – litigation guardian wishes to settle

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Puling	-
For the Defendant	-	Slater & Gordon Ltd
HER HONOUR:

1          This is an application for approval of a compromise of the claim reached on 24 March 2011 by way of Calderbank letter, the matter not having resolved at an informal settlement conference (“the compromise”).

2          By the compromise, the defendant proposes to pay the sum of $90,000 to the plaintiff, together with retention of no fault benefits totalling $10,620 plus costs in full settlement of his claim (“the offer”).

3          The plaintiff is presently aged seventy five, having been born on 31 August 1935. The claim relates to injury suffered by him in a transport accident on 28 January 2007 whilst travelling as a passenger.

4          Counsel for the plaintiff, Mr Pulling, provided an opinion in relation to the compromise on 13 April 2011 in which he advised the offer fell below what he considered to be the appropriate range of damages which he assessed as between $125,000 and $140,000. I agree with Counsel’s assessment in this regard.

5          However, the plaintiff, through his litigation guardian, wishes to accept the offer.

6          As Mr Pulling noted, the plaintiff is now aged seventy five and is in poor health. The litigation guardian, the plaintiff’s wife, is herself approaching sixty seven years of age.

7          In Mr Pulling’s view, were the matter to proceed to determination, a not insignificant portion of damages the plaintiff would expect to recover would be taken up in the solicitor client costs shortfall. Further, the matter is unlikely to reach trial within the next twelve months.

8          I accept Mr Pulling’s opinion, that the likely benefit to the plaintiff in proceeding further with the action is relatively small. The settlement of the claim produces finality and certainty without the risk of an adverse costs order in the event that an award of damages on less favourable terms than the defendant’s offer is obtained at court.

9          Whilst the resolution of the claim for the amount offered by the defendant is inadequate financially, given the plaintiff’s age and his desire, and that of the litigation guardian to finalise the matter, I approve the compromise in the terms proposed as being in the best interests of the plaintiff

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