Nobbs v Excel Metal Roofing Pty Ltd

[2021] ACTSC 203

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Nobbs v Excel Metal Roofing Pty Ltd
Citation:	[2021] ACTSC 203
Hearing Date:	27 August 2021
Decision Date:	27 August 2021
Before:	Elkaim J
Decision:	See [11]
Catchwords:	CIVIL LAW – APPLICATION IN PROCEEDING – Plaintiff Under a Disability – Approval of Settlement
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 282
Parties:	Jack Nobbs by his next friend Michael Anderson (Applicant) Excel Metal Roofing Pty Ltd (Respondent)
Representation:	Counsel
A Muller (Applicant) M Ma (Respondent)
Solicitors
Maliganis Edwards Johnson (Applicant) Moray and Agnew (Respondent)
File Number:	SC 173 of 2019
Elkaim J

1. This is an application for approval of a settlement pursuant to r 282 of the Court Procedures Rules 2006 (ACT). The settlement requires approval because the plaintiff suffers from a legal disability.

2.       The application is dated 2 August 2021. It is supported by the affidavits of Mr Michael Anderson, sworn on 30 July 2021 and Ms Kirsten Leitch, also sworn on 30 July 2021.

Mr Anderson is the plaintiff’s litigation guardian. Ms Leitch is his solicitor.

3.       In addition to the two affidavits there is a confidential advice from the plaintiff’s

counsel, Mr Andrew Muller. Although because of technical reasons I have not read the advice, I have been told by Mr Muller that he recommends the settlement, and it contains a degree of compromise for liability.

4.       The settlement is against his former employer, the defendant. The plaintiff suffered two injuries in the course of his employment. The first occurred on 27 April 2016 when he injured his back. The second was on 7 December 2016 when he injured his left ankle.

5.       The plaintiff was born in 1996 so that he is now 24 years of age. Both injuries suffered by the plaintiff are physical and not connected to the reason that he has a litigation guardian.

6.       He has a guardian because he suffers from an intellectual disability. This disability is described in the report of Mr Sutton, a clinical psychologist. In his report dated 16 April 2019 he sets out the results of testing that he administered to the plaintiff.

7.       Although, as already noted, the plaintiff’s injuries are not related to his intellectual

disability, his disability does significantly impede his capacity to work in anything but

unskilled employment. As a result of the “egg shell skull rule” the defendant is liable, in essence, for severely diminishing the plaintiff’s capacity to work. This result was

concisely stated by Dr Le Leu, an occupational physician, in his report dated 24
March 2019:

He has limited qualifications and experience and has difficulty with reading and writing; he cannot use a computer. He is only 22 years old but is said to have an intellectual disability which will make retraining difficult. This presents somewhat of a challenge to seeking other jobs since he will not be able to go back to his previous work or any work of a moderately to highly physical nature.

8.       Dr Walden, a pain specialist, in his report of 25 June 2020 says that attending a cognitive behavioural pain management education program would be difficult for the plaintiff the because of his lack of literacy skills.

9.       Dr Martin, an orthopaedic surgeon, in his report of 24 September 2020, said:

With regard to Jack’s future employment I think he would be best suited to a job where (he)

is not standing, walking, lifting, or carrying with frequency or over an extended period. He would be best suited to a job that involves some sort of manual work that can be done within these restrictions. Given his intellectual impairment I do not think an office-based job would be suitable for Jack. His previous training and work experience would not equip him with the skills to undertake this type of work.

10.     Mr Anderson, in his affidavit, says he understands the settlement and what is entailed in the final calculation of the amount of money that will be paid to the Public Trustee. He says he understands that the claim against the defendant cannot be re-agitated in the future and he states:

I accept that the Proposed Compromise is one that is in Jack’s best interests.

11.     I agree with Mr Anderson and accordingly approve the settlement. I make orders in accordance with the Short Minutes of Order dated 27 August 2021.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim

Associate:

Date: 27 August 2021