Minion by his tutor Pauline Birnie v Smith

[2023] NSWSC 1271

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Minion by his tutor Pauline Birnie v Smith [2023] NSWSC 1271
Hearing dates:	22 September 2023
Date of orders:	22 September 2023
Decision date:	22 September 2023
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The settlement is approved and monies are to paid into Court until the appointment of a trustee
Catchwords:	CIVIL PROCEDURE — application for approval of settlement — motor vehicle accident — plaintiff seriously injured — consideration of the bests interest of the child — settlement approved
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 76, 77
Category:	Principal judgment
Parties:	Minion by his tutor Pauline Birnie (Plaintiff) Lorraine Smith (Defendant)
Representation:	Solicitors: Stacks Goudkamp (Plaintiff) Hall and Wilcox (Defendant)
File Number(s):	2014/296060

ex tempore JUDGMENT (revised)

1. I am asked to consider approving a proposed settlement between the parties in this personal injuries matter. The plaintiff is now aged 19 years of age and he was nine years of age when he suffered very serious injuries in a motor vehicle accident on 22 November 2013. I am satisfied that he still labours under a legal disability by reason of the severe traumatic brain injury he suffered in that accident.

2. In this matter, liability had initially been contested, but a settlement of the liability question was approved by my former colleague, Bellew J, on 14 September 2015. By that settlement, the parties agreed that there should be judgment for the plaintiff on liability with damages to be assessed subject to a 20% reduction for contributory negligence, not affecting the plaintiff's entitlements under the Lifetime Care and Support Scheme, to which I will return.

3. Apart from the severe traumatic brain injury, which has had a very profound effect upon the plaintiff's life, he also, at the same time, suffered significant orthopaedic and other general injuries. As a consequence of his brain injury, he has an ongoing major depressive disorder and anxiety. There is no doubt that the plaintiff will require significant ongoing medical treatment and care and assistance with the activities of daily life, however, as I have adverted to - given the severity of his disabilities - he has been admitted into the Lifetime Care and Support Scheme and his medical, hospital and care needs will be taken care of for life under that scheme without deduction for any level of contributory negligence and without diminution in the damages which are proposed for approval.

4. From the material that I have read, I am satisfied that what is proposed is well within the appropriate range for settlement, having regard to the reduction that must be made for the agreed contributory negligence, which was approved by Bellew J.

5. In addition to the damages which consist of non-economic loss, past and future economic loss and loss of superannuation, a very substantial sum has been agreed between the parties to cover the cost of fund management which the plaintiff will obviously need, given his level of disability.

6. I am satisfied that the settlement is an appropriate one and that I should approve it in accordance with the provisions of s 76(4) Civil Procedure Act 2005 (NSW) as being in the plaintiff's best interests. In coming to that conclusion, I have had regard not only to the affidavit of Ms Goodall and also that of Mr Goudkamp, but I have read carefully the affidavit of the plaintiff's mother and tutor, Ms Birnie. I am well satisfied that she appreciates that this is a full and final settlement of the plaintiff's rights to damages in respect of the accident of November 2014.

7. I propose to make orders in accordance with the form of consent judgment signed by the solicitors for the parties, which I will sign and date. Specifically, in accordance with paragraph 4, I approve the settlement, I enter judgment in accordance with paragraph 2 and I note the agreement of the parties that the defendant is to pay the plaintiff's costs as agreed or assessed. I note the agreement of the parties in paragraph 6 entitling the defendant to deduct any sums required by law to be repaid and in particular I note that there will be an amount required to be deducted in respect of any Medicare charge, although it is expected that, given this is a motor vehicle accident and that the plaintiff has been admitted to the life care and support scheme, that deduction for the purpose of the charge ought to be fully refundable to the plaintiff.

8. Subject to that matter, I direct, in accordance with paragraph 5, that the proceeds of the judgment are to be paid into Court under s 77 of the Civil Procedure Act and deposited in an interest-bearing account pending an application for an order for payment out after a trustee to manage the fund has been appointed.

9. I note the undertaking of the plaintiff given through his tutor at paragraph 7. I note the agreement as to interest in paragraph 8 and the agreement as to interest in respect of costs in paragraph 9. I also note the agreement of the parties that these terms are not to be disclosed except as required by law.

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Amendments

30 October 2023 - Paragraph 6 - "the plaintiff's" is substituted for the name of plaintiff.

Decision last updated: 30 October 2023