Matthews bht Phillip Matthews v Insurance Commission of Western Australia

[2019] NSWSC 562

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Matthews bht Phillip Matthews v Insurance Commission of Western Australia [2019] NSWSC 562

Hearing dates:

30 April, 2 May 2019

Decision date:

02 May 2019

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

1. Pursuant to s 76 of the Civil Procedure Act 2005 (NSW), I approve the agreement between the parties set out in the consent orders which I will seal and place with the papers on the terms set out in that consent judgment.

 

2.   I order that there be judgment for the plaintiff in the sum set out in para 2 of the consent judgment.

 

3.   I note the parties’ agreements in paras 4, 5, 6 and 7 of the consent judgment.

 4.   The advice of senior counsel for the plaintiff will remain on the file in an envelope marked “Confidential” and access shall not be granted to it without leave of a Judge of the Court and with prior notice to the plaintiff so as to allow him an opportunity to be heard in respect of the application for access.

Catchwords:

CIVIL PROCEDURE – approval of settlement – by consent – whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity – settlement approved

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 76

Cases Cited:

Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Category:

Principal judgment

Parties:

Steven Matthews bht Phillip Matthews (Plaintiff)
Insurance Commission of Western Australia (Defendant)

Representation:

Counsel:
P Mooney SC; S Maybury (Plaintiff)
P Mison (solicitor) (Defendant)

  Solicitors:
Chadwick Lawyers (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s):

2016/00104445

Judgment

1. HIS HONOUR: This is an application for approval of a proposed settlement of a claim for damages commenced on behalf of Steven Matthews (“the plaintiff”), by his father Phillip Matthews as tutor against the Insurance Commission of Western Australia (“the defendant”). The application is made pursuant to the Civil Procedure Act 2005 (NSW), s 76, which provides that, in a case of proceedings commenced on behalf of a person under legal incapacity, if an agreement for a compromise or settlement is made, that person is not bound by it unless it is approved by the Court.

2. The plaintiff is aged 37. He grew up on the South Coast of New South Wales attending Ulladulla High School until year 10, when aged 15. Thereafter he worked intermittently as a welder in Canberra, including in a family business operated by his father, Phillip Matthews, as well as working in unskilled positions for various employers.

3. In 2008, he travelled to Western Australia, working in a nickel smelter and subsequently for another company as a welder. On 12 May 2009, when aged 27, he was impacted by a motor vehicle which was being driven by his then partner, Jayne Bowman, causing him serious injury.

4. He was admitted to Royal Perth Hospital and treated in the neurology ward for serious head injuries, comprising a fracture to the base of his skull, a left subdural haemorrhage over the frontal and temporal lobes, a subarachnoid haemorrhage of the right frontal lobe, generalised oedema and a nasal fracture. The consequence was a severe traumatic brain injury.

5. On 12 June 2009, he was transferred to the general ward and then to the rehabilitation ward on 17 June. He was discharged from hospital on 21 August 2009.

6. Ms Bowman was charged with dangerous driving occasioning grievous bodily harm and failing to stop after an accident. She pleaded guilty to both counts and received non-custodial sentences. It appears that the relationship survived the accident, until Ms Bowman’s death in 2014. In November 2014, the plaintiff came under the care of his parents, who still resided near Ulladulla, where he has remained since. His mother passed away in 2017, leaving his father as his sole primary carer, assisted by his family.

7. It became apparent from an early stage that the brain injury has left the plaintiff with significant cognitive disabilities. He was effectively unable to live independently and safely in the community. At various times between his discharge from hospital and November 2014, he proved himself unable to manage his financial affairs; he accumulated unpaid rent of $6,000 for basic accommodation (shared single men’s accommodation) and sustained multiple fines for illegally using transit systems. He is easily distracted, to the point that he cannot safely use a stove for cooking or gas for welding. He does not properly feed, dress or wash himself. He is emotionally labile, moody and argumentative. He cannot drive and is unemployable on the open labour market. He suffers seizures, having had 26 seizures since he recommenced living in the family home in November 2014. Twenty-one of these required hospitalisation.

8. In short, the plaintiff will require supervision and care for the rest of his life. He has a life expectancy of 44 years and a working life expectancy, but for the injury, of 30 years. For the moment, his father continues to care for his son while at the same time managing his business in Canberra.

9. By a statement of claim filed on 6 April 2016, the plaintiff sought damages in negligence from Jayne Bowman. Following Ms Bowman’s death, an amended statement of claim against the defendant was filed on 4 August 2016. Following examinations by medical experts retained by the defendant, mediation between the parties took place, leading eventually to a proposed settlement in the form of a verdict and judgment for the plaintiff in a particular amount on the basis that the defendant pays the costs of the proceedings, the appointment of a trustee of the settlement moneys and the costs of fund management, to be agreed or determined by the Court.

10. I have had the benefit of reading a confidential advice as to the merits of the proposed settlement, prepared by senior counsel for the plaintiff, Peter Mooney SC, who specialises in personal injury matters, and his junior, Scott Maybury.

11. In an affidavit sworn on 24 April 2019, the plaintiff’s father stated that the offer has been explained to him, that he has read counsel’s advice and recommendation and that he has provided instructions to accept the offer. The family has agreed on a plan for the plaintiff with the benefit of the proposed settlement. Phillip Matthews would move out of the family home and the plaintiff would continue to live there, together with live-in carers.

12. The Court's function in such a hearing is protective. In Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1, [2007] NSWSC 336, Hammerschlag J observed, at [29], referring to the legislative scheme in the Compensation to Relatives Act 1987 (NSW):

“The principle is that for the Court to grant approval for a compromise to be entered into by the disable[d] person it must form the view that it is beneficial to his or her interests. The compromise should be assented to by the tutor and there should be opinions from his or her legal advisers that they consider it to be so: Re Birchall. The Court will consider for itself whether the compromise will be beneficial to the disable[d] person: Somerset v Ley [1964] 1 WLR 640; reported sub nom Re Ley’s Trusts [1964] 2 All ER 326.”

13. A consideration implicit in these concerns is the prospect of the plaintiff receiving a greater award of damages at the conclusion of a full hearing.

14. I am satisfied that the settlement is in the best interests of the plaintiff, Steven Matthews, taking into account the confidential advice by his Senior Counsel and that the plaintiff’s father, having read counsel’s advice, is of the same view.

15. Accordingly, I order that:

1. Pursuant to s 76 of the Civil Procedure Act 2005 (NSW), I approve the agreement between the parties set out in the consent orders which I will seal and place with the papers on the terms set out in that consent judgment.

2.   I order that there be judgment for the plaintiff in the sum set out in para 2 of the consent judgment.

3.   I note the parties’ agreements in paras 4, 5, 6 and 7 of the consent judgment.

4.   The advice of senior counsel for the plaintiff will remain on the file in an envelope marked “Confidential” and access shall not be granted to it without leave of a Judge of the Court and with prior notice to the plaintiff so as to allow him an opportunity to be heard in respect of the application for access.

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Amendments

26 November 2019 - Minor typographical correction

Decision last updated: 26 November 2019