Laracy v Baxters Concrete Pty Ltd

[2015] VSC 776

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT WODONGA

COMMON LAW DIVISION

S CI 2012 06471

FRANCIS EDWARD LARACY & ORS	Plaintiffs
v
BAXTERS CONCRETE PTY LTD	Defendant

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JUDGE:	T. FORREST J
WHERE HELD:	Wodonga
DATES OF HEARING:	26 November, 8 December 2015
DATE OF JUDGMENT:	8 December 2015
CASE MAY BE CITED AS:	Laracy & ors v Baxters Concrete Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 776

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NEGLIGENCE – application for approval of infant compromise under the Supreme Court (General Civil Procedure) Rules 2015, Order 15– relevant test to apply on application for approval – compromise approved - Elderfield v Transport Accident Commission [2010] VSC 116.

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APPEARANCES:	Counsel	Solicitors
For the third named plaintiff	Mr M.J.G. Waugh	Harris Lieberman Solicitors Pty Ltd

HIS HONOUR:

1. Emily Laracy is an infant and sues via her litigation guardian Kathleen Beverley Laracy, who is in court this morning.  Kathleen Laracy is Emily’s mother.  Emily was born on 14 February 2000 and is currently at school.  Simon Laracy was Emily Laracy’s brother.  He was killed in the course of his employment by the defendant on 1 December 2009.  The plaintiffs alleged that Simon Laracy’s death was caused by the negligence of the defendant, its servants or agents.

1. The particulars of negligence are voluminous and I do not propose to set them out.  In very short compass, the plaintiff alleged the defendant’s plant, systems of work and working environment were unsafe.  The deceased was inadequately trained and the system of work for cleaning with a heavy flexible hose attached to a concrete pump was quite dangerous in the circumstances.

1. The statement of claim filed in this matter claimed that the infant plaintiff suffered nervous shock, and/or mental and/or psychiatric injury, and/or abnormal grief reaction.

1. Subject to the approval of this Court, the parties have agreed to settle Emily Laracy’s claim on the basis simply that the claim be dismissed.  It is necessary to set out a short context in which this proposed settlement has been reached.  The infant plaintiff was the third plaintiff in the proceeding brought against her brother’s employer.  Her parents, Francis Laracy and Kathleen Laracy were the first two plaintiffs.  A writ was issued just within time with a general endorsement.  Both father (particularly) and mother suffered nervous shock-type psychiatric injuries.  Their claims have been settled for $300,000 plus costs and $75,000 plus costs respectively.  I am told that these claims were settled for psychiatric injury solely, as any modest dependency claim brought by any of the plaintiffs would have been extinguished by the value of a property left to the first and second plaintiffs.

1. I have read affidavits from Kathleen Laracy, as next friend, and Lara Block, the plaintiff's solicitor.  Exhibited to the Block affidavits are psychiatric reports and an advice from senior and junior counsel.

1. I am satisfied of the following:

(a)the plaintiff’s date of birth is 14 February 2000, she is now 15 years of age;

(b)there will be no amount repayable to the Commonwealth under the Health and Other Services (Compensation) Act 1995 in the event that I approve the compromise;

(c)Emily Laracy suffered normal grief reactions as a result of the death of her brother, but no psychiatric impairment;[1]

(d)viewed from a family perspective, any dependency claim would have been extinguished by the benefits conferred on the family by the deceased man.  I add that it is legitimate, and indeed with respect sensible, to view the proposed before and after position of the family as a whole (including the infant plaintiff) when considering this aspect.[2]

[1]See report of Dr Lorraine Dennerstein p 8, report of Dr Helen Sutcliffe p 5.

[2]See Nguyen v Nguyen [1991] 169 CLR 245 at 247 (Brennan J).

1. As Emily Laracy is a person under a disability by O 15, r 1 of the Supreme Court (General Civil Procedure Rules) 2015[3], the proposed compromise will not be valid without the approval of the Court.  The Rules provide that application for approval is to be made by summons, save that the court may dispense with that requirement where the application for approval is made at the trial of the proceeding, as it has been in this case.  I dispense with the summons requirement.

   [3]Person under a disability means minor or handicapped person

1. The usual test in this sort of matter is whether it would be in the interests of the plaintiff to reject the compromise and continue the action in the hope of receiving a larger amount.

The question is relevantly answered by deciding whether or not in the court’s opinion the certainty of obtaining the compromise sum is significantly outweighed by the uncertain prospect of obtaining more by rejecting the compromise after taking into account the risk of obtaining less.  (See Elderfield v Transport Accident Commission [2010] VSC 116)

This is sometimes called “the bird in the hand dichotomy”.

1. In this case, the test is slightly different, although the underlying principle is the same.  In my view, it would not be in the interests of the plaintiff to reject the compromise, because to do so would condemn the plaintiff to proceeding with a cause of action that appears doomed to failure.  I have reached this conclusion on the basis of psychiatric reports and counsel’s advice, all of which were exhibited to Lara Block’s various affidavits.

1. In the circumstances, I am prepared to approve the compromise and I direct that opinion of counsel be placed on the Court file.