Morrissey bhnf McMahon v McMahon
[2015] NSWSC 624
•25 May 2015
Supreme Court
New South Wales
Medium Neutral Citation: Morrissey bhnf McMahon v McMahon [2015] NSWSC 624 Hearing dates: 12 December 2014 Date of orders: 12 December 2014 Decision date: 25 May 2015 Jurisdiction: Common Law Before: Wilson J Decision: Settlement approved subject to consent judgment
Catchwords: PROCEDURE - settlement approval - order for settlement approval - order made Legislation Cited: Civil Procedure Act 2005 (NSW)
Motor Accident Compensation Act 1999 (NSW)Cases Cited: Fairhurst v Fairhurst [2012] NSWSC 388 Category: Principal judgment Parties: Emily Maree Morrissey bhnf Deborah Lee-Anne McMahon (Plaintiff)
Jessica Maree McMahon (Defendant)Representation: Counsel:
Solicitors:
L Brazel (Plaintiff)
E Ferguson (Defendant)
Clayton James Solicitor (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): (2011/327068)
Judgment
-
The plaintiff in these proceedings was born on 4 July 2007 and is thus a person under legal incapacity within the meaning set out by s 3 of the Civil Procedure Act 2005 (NSW) (the Act). She is a person to whom s 76(1)(a) of the Act applies. The plaintiff is represented by her tutor, Deborah Lee-Anne McMahon, who is her maternal grandmother.
-
By motion filed on 9 December 2014, approval was sought of an agreement reached between the parties in settlement of the plaintiff’s claim. The motion was supported by affidavits sworn by the plaintiff’s tutor, Deborah Lee-Anne McMahon and the plaintiff’s solicitor, Clayton James.
-
That evidence establishes that on 28 August 2008 the defendant had a motor vehicle crash at a time when the infant plaintiff was located in the rear passenger seat of the car. The crash was reported to the police on the same day and an insurance claim was filed within one month of the accident. The insurer admitted liability on 9 December 2008. An application for exemption was granted on 23 August 2011 by the Claims Assessment and Review Service.
-
On 13 October 2011, the plaintiff, by her tutor, Deborah Lee-Anne McMahon, filed a statement of claim seeking damages pursuant to the Motor Accidents Compensation Act 1999. The statement of claim pleads that the accident occurred as a result of the defendant’s negligence and thay, as a result of the collision, the plaintiff sustained injury, loss, and damage.
Consideration
-
The settlement agreed between the parties is subject to the Court’s approval in accordance with s 76 of the Act which provides:
"76 Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity
(1) This section applies to proceedings commenced by or on behalf of, or against, any of the following persons:
(a) a person under legal incapacity,
(b) a person who, during the course of the proceedings, becomes a person under legal incapacity,
(c) a person whom the court finds, during the course of the proceedings, to be incapable of managing his or her own affairs.
(2) The court may make a finding referred to in subsection (1) (c) only on the basis of evidence given in the proceedings in which it is made, and such a finding has effect for the purpose only of those proceedings.
(3) Except with the approval of the court, there may not be:
(a) any compromise or settlement of any proceedings to which this section applies, or
(b) any acceptance of money paid into court in any such proceedings,
as regards a claim made by or on behalf of, or against, a person referred to in subsection (1).
(4) If an agreement for the compromise or settlement of any matter in dispute in any such proceedings is made by or on behalf of a person referred to in subsection (1), the court may approve or disapprove the agreement.
(5) An agreement disapproved by the court does not bind the person by whom or on whose behalf it was made.
(6) An agreement approved by the court binds the person by whom or on whose behalf it was made as if he or she were of full capacity and (if it was made by some other person on his or her behalf) as if that other person had made the agreement as his or her agent."
-
Section 77 details the payment of money recovered on behalf of a person under legal incapacity:
“77 Payment of money recovered on behalf of person under legal incapacity
(1) This section applies to money recovered in any proceedings on behalf of any of the following persons:
(a) a person under legal incapacity,
(b) a person who, during the course of the proceedings, becomes a person under legal incapacity,
(c) a person whom the court has found, under section 76 (1) (c), to be incapable of managing his or her own affairs,
pursuant to a compromise, settlement, judgment or order in any proceedings.
(2) All money recovered on behalf of a person referred to in subsection (1) is to be paid into court.
(3) Despite subsection (2), the court may order that the whole or any part of such money not be paid into court but be paid instead to such person as the court may direct, including:
(a) if the person is a minor, to the NSW Trustee and Guardian, or
(b) if the person is a protected person, to the manager of the protected person’s estate.
(4) Money paid into court under subsection (2) is to be paid to such person as the court may direct, including:
(a) if the person is a minor, to the NSW Trustee and Guardian, or
(b) if the person is a protected person, to the manager of the protected person’s estate.”
-
On the evidence it is clear that the settlement will protect, and is beneficial to, the plaintiff’s interests: Fairhurst v Fairhurst [2012] NSWSC 388
-
As is the usual course, both parties tendered material to assist the Court in determining whether the settlement should be approved. The plaintiff’s solicitor included the following to his affidavit of 10 December 2014:
Report from the Mater Hospital, Brisbane
Rehabilitation screening and file note from Life Care and Support Scheme
Multidisciplinary clinical summary from Queensland Paediatric Rehabilitation Service
Letter from plaintiff’s local paediatrician Dr Chris Ingall.
Neuropsychological assessment
Letter regarding case conference to plaintiff’s occupational therapist from Dr Chris Ingall
Physiotherapy assessment
-
Broadly, this material goes to the wide scope of the plaintiff’s injuries and the range of medical professionals engaged and to be engaged in her treatment and ongoing care.
-
The proposed settlement appears to provide for the plaintiff’s needs now and into the future. Accordingly, pursuant to s76 of the Act I approve the settlement as set out in the signed Consent Judgment.
Decision last updated: 25 May 2015
0
1
2