Murphy by his next friend Jones v Essential Energy
[2015] NSWSC 1962
•18 December 2015
Supreme Court
New South Wales
Medium Neutral Citation: Murphy by his next friend Jones v Essential Energy [2015] NSWSC 1962 Hearing dates: 7 December 2015 - 17 December 2015 Decision date: 18 December 2015 Jurisdiction: Common Law Before: Button J Decision: See paragraph 16.
Catchwords: PRACTICE AND PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – whether proposed settlement is in the interests of the plaintiff Legislation Cited: Civil Procedure Act 2005 (NSW), s 76, s 77
Health and Other Services (Compensation) Act 1995 (Cth), s 24Cases Cited: Fisher by her tutor Fisher v Marin [2008] NSWSC 1357
Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298
Permanent Trustees v Mills [2007] NSWSC 336; (2007) 71 NSWLR 1Category: Principal judgment Parties: Angus John Robert Murphy by his next friend Leanne Jones
Essential Energy (formerly known as Country Energy)Representation: Counsel:
Solicitors:
L King SC (Plaintiff)
P Regattieri (Plaintiff)
R Sheldon SC (Defendant)
H Chiu (Defendant)
M J Duffy & Son (Plaintiff)
Mills Oakley Lawyers (Defendant)
File Number(s): 2013/329276
Judgment
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This is an application pursuant to s 76 of the Civil Procedure Act 2005 (NSW) for approval of a settlement reached in proceedings that are part heard before me. Each party is content for me to hear the application, and explicitly eschewed any subsequent submission that I should recuse myself on the grounds of actual or apprehended bias if the application were to be rejected by me.
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The background can be stated succinctly. In December 2001, when he was 9 years of age, the plaintiff suffered an electric shock when he came into contact with power lines in the town of Broken Hill. He was rendered hypoxic, and suffered serious injuries as a result. The liability of the defendant has been admitted, and there is no question of contributory negligence. The proceedings before me focused upon the question of damages only.
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Those proceedings commenced on Monday 7 December 2015 in Broken Hill. Evidence was taken from a number of lay witnesses, including the plaintiff. The trial then adjourned to Sydney, and the evidence of three expert witnesses was received in conclave. Thereafter I was advised that the matter had been settled, subject to approval.
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It is clear from the opening addresses of the two senior counsel, the documentary evidence, and the oral evidence received so far that, although this litigation is about damages only, there are some sharply disputed issues between the parties.
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The first is the level of intellectual and other functioning of the plaintiff before the accident. Without descending into detail, the evidence strongly suggests that the plaintiff had some degree of impairment before the accident. There is a dispute between the parties about its seriousness and extent, founded upon the evidence of both lay and expert witnesses.
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Secondly, it is not disputed by the defendant that the accident affected the plaintiff to some degree; the question is: to what degree? Again, there are sharp disputes between experts in different branches of medicine about that, and about whether, in truth, the deficits in functioning from which the plaintiff suffers as at today are to be sheeted home, in whole or in part, to the accident in 2001.
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Thirdly, there is also a dispute about the actual extent of the current impairment of the plaintiff, including whether some of the unsatisfactory aspects of his functioning are simply the result of (for example) lack of motivation or impetuosity, rather than a true deficit.
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Fourthly, there is a significant dispute about the level of care that the plaintiff requires in the long term, and also about the degree to which the care he currently receives from his mother and romantic partner is satisfactory.
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Suffice to say that, if one or more of those issues were determined adversely to the plaintiff, that could have a significant effect on the quantum of damages. In light of those contested variables, one would respectfully expect the legal advisors of the plaintiff to adopt a cautious approach to the matter.
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Confidential Exhibit A constitutes a written advice from senior and junior counsel for the plaintiff, some computations about various heads of damage that underpin that advice, and also an affidavit sworn by the tutor of the plaintiff, his mother. I shall not, of course, discuss those aspects of the confidential exhibit in any detail. Suffice to say that the plaintiff’s mother has explained the level of reflection that she has brought to the matter, and why she is content to accept the offer. Counsel have explained that they have advised her to do so, referring in their advice to the issues that I have outlined above, and also to some specific evidential matters that they have considered.
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Separately, I was told from the Bar table without demur that senior and junior counsel for the plaintiff have between them many decades’ worth of experience in this area of litigation.
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Finally, the mother of the plaintiff gave evidence before me in the substantive hearing and was cross-examined extensively. There is nothing to suggest in any of the evidence placed before me that she is motivated by anything other than love and concern for her son. Nor does anything suggest that she approaches his litigation and its settlement with anything other than his best interests at heart.
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Turning from evidence to legal principle, the test is well-known: it is simply whether I am satisfied that the settlement is beneficial to the interests of the plaintiff under incapacity: see Permanent Trustees v Mills [2007] NSWSC 336; (2007) 71 NSWLR 1 at [19] (Hammerschlag J); Fisher by her tutor Fisher v Marin [2008] NSWSC 1357 at [29] and [41] (Rothman J); and Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298 at [2] (Allsop P).
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Turning to my determination, in all of the circumstances that I have outlined, I am soundly satisfied that the test has been made out, and that I should approve the settlement of the matter.
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Separately, I am satisfied that all of the ancillary orders proposed by the parties, and helpfully contained in draft consent orders signed by their solicitors, should be made by me.
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I make the following orders:
Judgment for the plaintiff against the defendant in the sum of XXX inclusive of any interest, out-of-pocket expenses, funds management and/or Medicare or Centrelink paybacks.
The defendant to pay the plaintiff’s costs as agreed or assessed.
The defendant is authorised to deduct and/or pay from the judgment sum any moneys repayable in respect of this action by the plaintiff in respect of Department of Human Services and Centrelink concerning which any demand or notice has been served on or given to the defendant or their solicitor or insurer either before, on or after the date of this order.
The plaintiff undertakes an agrees to pay out the judgment sum any moneys repayable by the plaintiff to any person or body in respect of Department of Human Services and Centrelink which may not have been deducted by the defendant pursuant to paragraph 3 and/or to the persons or bodies entitled, all outstanding medical, hospital, ambulance and other out-of-pocket expenses.
No interest to run on payment of the judgment sum until 28 days from the date of the latest of the following:
Approval of this settlement.
The earlier of:
Receipt by the defendant’s solicitors of a notice of charge pursuant to s 24 of the Health and Other Services (Compensation) Act 1995 (Cth);
The expiration of the time prescribed by s 24 of the Health and Other Services (Compensation) Act 1995 (Cth);
Receipt by the defendant’s solicitors of a sealed copy of the consent judgment; or
Receipt by the defendant’s solicitors of a notice of charge or compensation release notice from Centrelink.
The judgment sum to be paid as follows:
Defendant is to pay the judgment sum referred to in paragraph 1 (less any charges payable pursuant to paragraph 3) to the NSW Trustee & Guardian, or, in the alternative and subject to Court order, to a private trustee and funds manager appointed to the Court pursuant to s 77 of the Civil Procedure Act 2005 and to be held in trust for the benefit of Angus John Robert Murphy.
The terms of this judgment are not to be disclosed except as required by law or for contribution purposes.
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Decision last updated: 18 December 2015
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