Lloyd v Western Sydney Local Health District

[2016] NSWSC 876

Supreme Court

New South Wales

Medium Neutral Citation:	Lloyd v Western Sydney Local Health District [2016] NSWSC 876
Hearing dates:	2 June 2016
Date of orders:	02 June 2016
Decision date:	02 June 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	See [17]-[22]
Catchwords:	PROCEDURE– personal injury– mental harm damages– consent judgment PROCEDURE– compensation to relatives–approval of structure of settlement– where not contested– where different apportionment to recipients – where one child is still a minor– where one child has passed away
Legislation Cited:	Civil Liability Act 2002 (NSW), Pt 3 Civil Procedure Act 2005 (NSW), s 76 Compensation to Relatives Act 1897 (NSW), s 4
Category:	Consequential orders (other than Costs)
Parties:	Ms Lloyd (Plaintiff) Western Sydney Local Health District (Defendant)
Representation:	Counsel: D Hirsch (Plaintiff)    A Talbot (Defendant)   Solicitors: Keen Lawyers (Plaintiff)    Crown Solicitors Office (Defendant)
File Number(s):	2013/106016

Ex tempore Judgment- revised

1. These proceedings encompass two actions brought in respect of the consequences for his family of the death of Mr Robert Shortland. He died on 7 April 2010 and was survived by his partner, Ms Lloyd and, at that time, their five children. One son passed away in December 2014.

2. The first action relates to a claim for mental harm damages under Part 3 of the Civil Liability Act 2002 (NSW) on behalf of Ms Lloyd. That matter has been settled and a consent judgment has been prepared. It does not require the approval of the Court and I will say nothing further about that matter.

3. I will pronounce the orders agreed at the end of these reasons.

4. The second action is brought under the Compensation to Relatives Act 1897 (NSW) by Ms Lloyd on her own behalf and on behalf of her children. Following the death of her son Jacob the action is maintained only for herself and on behalf of her four surviving children.

5. I think that is appropriate in the circumstances, and to the extent to which any apportionment is required in respect of past benefits that may have been due to Jacob, to approve the structure of the settlement, which excludes him, under the provisions of s 76 of the Civil Procedure Act 2005 (NSW).

6. Of the surviving four children, only the youngest, Izzabella, is a minor and to the extent to which damages are sought to be apportioned in her favour, the matter requires the approval of the Court under s 76.

7. Mr Hirsch of learned counsel, who appears for the plaintiff, has very helpfully taken me through the issues that beset the plaintiff's claim under the Compensation to Relatives Act in relation to liability, causation and quantum.

8. Given that four of the five persons for whom the action is brought are sui juris, I only need concern myself with the claim on behalf of the youngest child. Looking at the matter from her perspective, it does seem to me that there are real difficulties in respect of those three issues that would beset any claim advanced at trial in this case.

9. The circumstances leading to Mr Shortland's death were tragic but the arguments in relation to negligence I must say, to put it as mildly as I can, are not strong and, likewise, causation. Indeed, so far as the issue of dependency is concerned if one were to use past certainties as a guide to future probabilities, there may be real issues about the amount that could be recovered in the case.

10. I am well satisfied that the proposed settlement is in the interests of Izzabella and it seems to me, applying the approach expressed by Mr Hirsch, if the case brought on her behalf were to proceed to trial what is now proposed for her could well be lost or substantially reduced. It would be inappropriate to withhold the Court's approval when there is a sum certain provided by the settlement.

11. To the extent to which it is necessary for me to apportion the judgment for the purpose of s 4 of the Act, I have had regard to the contents of the affidavit of Wayne Gregory Keen, the plaintiff's solicitor, in relation to the amount of irrecoverable solicitor and client costs and I have had regard to the wishes of Ms Lloyd as to how the proceeds of the settlement should be divided amongst her children. It seems to me, although her views, with respect, are not determinative, what she has proposed is very sensible and calculated to maintain, if I may put it this way, family harmony.

12. In that regard, I do record that the sum proposed for Izzabella is larger than the sum proposed for the other children, but I am satisfied that is appropriate given that she is currently only nine and that the period of her dependency upon her father for support but for his death would be much longer than that of the other children.

13. I offer my condolences to Ms Lloyd. I congratulate the parties on arriving at such an appropriate settlement of the case and I approve the settlement under s 76 of the Civil Procedure Act 2005 so far as it concerns the interests of Izzabella.

14. Counsel has handed up a form of Consent Judgment which records not only the proposed orders but also the agreement of the parties in relation to important administrative questions.

15. I will initial the Consent Judgment dated today and direct that the Court seal be affixed to it.

SHORT DISCUSSION RE ADDITIONAL NOTATION TO BE ADDED TOTHE MINUTE OF JUDGMENT

16. The second document is a Minute of Judgment.

17. I pronounce judgment by consent and without admission of liability in accordance with paragraphs 1 and 2 of the Minute of Judgment.

18. I note the agreement of the parties recorded or incorporated in paragraphs 3 and 4 of the Minute of Judgment and I make the order contained in paragraph 5 of the Minute of Judgment signed by me and dated today.

19. The Judgment and Order pronounced may be entered forthwith.

20. I direct that the Court seal be affixed to the Minute of Judgment.

**********

Decision last updated: 24 June 2016