Monica v Brown

[2018] NSWSC 15

Supreme Court

New South Wales

Medium Neutral Citation:	Monica v Brown [2018] NSWSC 15
Hearing dates:	29 January 2018
Date of orders:	29 January 2018
Decision date:	29 January 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The division of damages under the Compensation to Relatives Act 1897 proposed in clause 5 of the consent judgment is approved under section 76 of the Civil Procedure Act 2005.  I direct the parties to bring in a re-engrossed form of the consent judgment in accordance with directions given by me for the making of orders in chambers.
Catchwords:	CIVIL PROCEDURE — compensation to relatives - settlement - court approval – no statement of principle
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Compensation to Relatives Act 1897 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Rachal Monica (Plaintiff) Edwin Brown (First Defendant) Futurewood Pty Ltd (Second Defendant) QBE Insurance (Australia) Limited (Cross Defendant)
Representation:	Counsel: D. Stanton (Plaintiff) R. O'Keefe (First Defendant) B. Hull (Second Defendant) D. King (Cross Defendant) Solicitor: Robert Tricca & Associates (Plaintiff) Vardenega Roberts (First Defendant) Holman Webb (Second Defendant) Gillis Delaney Lawyers (Cross Defendant)
File Number(s):	2015/172536

JUDGMENT

1. This matter was listed before me for hearing today. The Court had been informed before Christmas that the plaintiff and the first and second defendants had settled the matter and that judgment would be entered by consent.

2. The judgments agreed upon by the parties are subject to a requirement of the approval by the Court of the provision proposed for the plaintiff's son, Jason, out of the damages recoverable under the Compensation to Relatives Act1897 (NSW). Under that Act there is only one cause of action, however many dependents there may be, and only one sum of damages which the Court is obliged to divide amongst the dependents otherwise entitled (see section 4 of the Act). Because Jason was born 17 October 2011 and is a minor, the provision made for him needs to be assessed and approved in accordance with the provisions of section 76 of the Civil Procedure Act 2005 (NSW).

3. I raised a matter with counsel in relation to the form of the judgments proposed. There are two defendants, I infer separately insured, and the settlement reached proposes a separate judgment against each defendant in an indivisible sum to cover both causes of action pleaded in the statement of claim. Those causes of action are the claim under the Compensation to Relatives Act on behalf of the plaintiff and her son, and a separate cause of action personal to the plaintiff for nervous shock damages under the provisions of Part 3 of the Civil Liability Act2002 (NSW). For convenience, the total amount payable by each defendant for both causes of action, as I have said, has been rolled into a single, separate sum. Counsel’s see no legal impediment to proceeding in this way. Although I did voice some concern about the appropriateness of it, I am satisfied that I should proceed in accordance with the wishes of the parties to give effect to their agreement. However, I suggested the form of consent judgment be amended to make clear that the separate, indivisible judgments provided for in paragraphs 2 and 3 of the consent judgment are intended to cover both causes of action pleaded in the statement of claim.

4. I should also make clear, as may be necessarily implicit in the form of consent order, that the “in solidum” principle has been negated by the parties and it is intended that the total settlement is the sum of each judgment - that is to say, the judgments are to operate cumulatively.

5. I have had regard to the affidavit of the plaintiff Rachal Monica, the plaintiff's mother, and I am satisfied that she has been properly advised about the legal effect of the settlement and, in particular, that if I approve the allowance proposed for her son that the apportionment provided in proposed clause 5 of the judgment will operate as a full and final settlement of his entitlement to a share of the damages payable under the Compensation to Relatives Act as a result of his father's death.

6. I have also been provided, as part of the affidavit, with Mr Stanton of counsel's working calculations of the extent of Jason's dependency. I have had regard to that matter as well as to the contents of the affidavit more generally. I am satisfied that the sum proposed is indeed appropriate and the Court should approve that part of the settlement.

7. Mr King appears for the cross-defendant who is not a party to the settlement. I am informed that the cross-claim against his client has been severed from the action and that liability questions relating to the cross-claim have been heard as separate questions by Garling J, who is considering his judgment. Mr King has no objection to the settlement but is concerned that the entry of judgment may prejudice, or foreclose, his client's right to run a central point they have argued before Garling J that the second defendant is not a tortfeasor liable in relation to the plaintiff's damages, an essential element of its statutory right to contribution. As I understand it, the argument simply is that the second defendant was not negligent or its negligence did not cause the death of the deceased. I think that Mr King’s concern can be overcome by a simple endorsement on the form of the consent judgment, making plain that it is not intended that the entry of judgment, as proposed by the plaintiff and the defendants, will foreclose the cross-defendant's right to ventilate that issue before Garling J or elsewhere in relation to these particular proceedings. I have suggested a suitable form of words to counsel during the course of our discussion.

8. I will not make any formal order at this time other than the following:

1. That the division of damages under the Compensation to Relatives Act 1897 proposed in clause 5 of the consent judgment is approved under section 76 of the Civil Procedure Act 2005.

2. I direct the parties to bring in a re-engrossed form of the consent judgment in accordance with directions given by me for the making of orders in chambers.

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Decision last updated: 31 January 2018