Parsons v PORCH

[2019] SADC 137

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

PARSONS v PORCH

[2019] SADC 137

Judgment of His Honour Judge Tilmouth

13 September 2019

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS

Approval given for the compromise of an action on behalf of a person under disability, pursuant to r 257(1) of the District Court (Civil) Rules 2006 (SA).

District Cout (Civil) Rules 2006 (SA) r 257(1); Aged And Infirm Persons' Property Act 1940 (SA) s 7; Civil Liability Act 1936 (SA) s 52, s 57; Naso v Cottrell (1994) 11 WAR 475; M, H and Ors v Children, Youth and Women's Health Service Incorporated and Anor [2016] SADC 35; Karvelas (by her next friend) v Chikirow (1976) 11 ACTR 22; Elliott v Diener (1978) 21 ACTR 21; Shanahan v Crack (1970) 55 LSJS 674; Stephens-Sidebottom v Victoria (Department of Education and Early Childhood Development) [2011] FCA 893; Re Barbour's Settlement Trust [1974] WLR 1198, referred to.

PARSONS v PORCH
[2019] SADC 137

1. The court has before it an ex parte Interlocutory Application seeking approval for the compromise of the within proceedings.  The male plaintiff is a person under a ‘disability’.

2. These proceedings involve a claim for damages for personal injury arising from a motor vehicle collision on 16 March 2016. Liability was admitted in July 2016. As a consequence, the matter was set for trial of 25 days on questions of damages. Quite recently, the parties proposed a settlement completely resolving all outstanding issues. Pursuant to r 257(1) of the District Court (Civil) Rules 2006 (SA) the settlement of proceedings for the benefit of a person under disability ‘is not binding on the person under a disability unless the court approves the terms of the settlement’.

3. In July 2017, Dr Stephen Buckley expressed the opinion that Mr Parsons did not have the capacity to instruct his legal advisors. As a result, an application was made to appoint the Public Trustee as his litigation guardian, which order was made by another judge of the court on 23 April 2018, pursuant to s 7 of the Aged and Infirm Persons’ Property Act 1940(SA). The court is advised that the Public Trustee agrees with the proposed settlement. There is an expectation that an application may follow to have the Public Trustee removed as litigation guardian, a situation which is under investigation at present by the solicitor and counsel for Mr Parsons, but that prospect is put aside for the present purpose.

4. Without going into fine detail, it is accepted that Mr Parsons sustained a moderate to severe brain injury.  There are divergent expert opinions as to the extent of that injury and its effect or otherwise on his work capacity.  An assessment of damages is governed by the Civil Liability Act 1936 (SA). It might be noticed this precludes an award for management fees by virtue of s 57 thereof, so that for so long as Mr Parsons remains subject to the order under s 7 of the Aged and Infirm Persons’ Property Act, such costs as the Public Trustee incurs are not covered by any award against the defendant.  It might also be noted that the approval of Public Trustee (or equivalent party) is ordinarily a pre-condition for approval of the court to compromise in situations such as this: Naso v Cottrell.[1]

   [1] (1994) 11 WAR 475, 478-479.

5. In support of the application to compromise, the plaintiff’s solicitor annexed to his affidavit the opinion of experienced personal injury counsel, Josephine Atkins.  This is of course received by the court according to customary practice to obtain the opinion of ‘independent counsel’ before approval ‘in furtherance of the lawyer’s duty to assist the court and not in furtherance of any duty the lawyer may have to the party in the proceedings’: M, H and Ors v Children, Youth and Women’s Health Service Incorporated and Anor.[2]

   [2] [2016] SADC 35, [12] and the cases cited therein.

6. The question for the court is whether the proposed settlement is in the best interests and for the benefit of the plaintiff, taken as a whole:  Birchall, In re; Wilson v Birchall,[3] Gillespie v Alperstein,[4] and Sosa v Carter.[5] 

   [3] (1880) 16 Ch D 41, 43.

   [4] [1964] VR 749.

   [5] [1978] WAR 123, 124.

7. In her opinion of 12 August 2019, counsel referred to the medical reports and differences of opinion between them as to the extent of the traumatic brain injury, before proceeding to estimate non-economic loss in accordance with s 52 of the Civil Liability Act.  In addition, counsel considered past and future loss of earning capacity, gratuitous and domestic services and assistance, future care and medical expenses.  In particular she notes, ‘Mr Parsons has retained his full-time employment … and continued to supplement that work with weekend and night shifts’.  Counsel proceeded to express considered views as to the inherent risks in the litigation, which is to be expected, before concluding that the ‘proposed resolution … is adequate and reasonable’: Karvelas (by her next friend) v Chikirow,[6] and Elliott v Diener.[7]

   [6] (1976) 11 ACTR 22, 23.

   [7] (1978) 21 ACTR 21, 22.

8. The proposed settlement is for judgment in favour of the plaintiff covering all heads of damages in the sum of $900,000 ‘in addition to party/party costs and disbursements’ and in addition ‘to all mounts paid to date’.  Securing the significant entitlement and protection of a favourable costs order is a relevant consideration:  Shanahan v Crack.[8]  Likewise, the considered opinion of independent counsel is a significant consideration:  Stephens-Sidebottom v Victoria (Department of Education and Early Childhood Development),[9] Re Barbour’s Settlement Trusts.[10]

   [8] (1970) 55 LSJS 674, 677.

   [9] [2011] FCA 893, [12].

   [10] [1974] WLR 1198, 1203.

9. Having carefully considered the written material presented on the application, and the opinions expressed by independent counsel in her written opinion, as well as those expressed orally before the court, I have formed the view that the offer of settlement is clearly in the best interests of the plaintiff as a presently disabled person to settle the matter in the terms agreed:  M, H and Ors v Children, Youth and Women’s Health Service Incorporated and Anor.[11]

   [11] [2016] SADC 35, [15].

10. Approval of the compromise necessarily authorises the Public Trustee as litigation guardian to enter into a formal compromise agreement accordingly:  Necora v Talbot.[12]

    [12] [1960] VR 537, 539 and the authorities referred to therein.

11. As the affidavit in support of the application and matters referred to during the ex-parte hearing relate to matters to which legal professional privilege applies, it is appropriate to seal the affidavit and the transcript so as to uphold the privilege.

12. The formal order of the court therefore is:

    1The court approves the terms of the proposed settlement pursuant to s 257(1) of the District Court Civil Rules.

    2Orders vacating the trial set to commence on 14 October 2019 for 25 days.

    3There will be an order that the affidavit of Peter James Jackson together with the Exhibits thereto as well as the transcript of the ex parte proceedings of 28 August 2019, be sealed and not be opened unless by an order of a judge.

    4Order in terms of the draft minutes of order signed by me on 5 September 2019.

    5Liberty to apply under the Aged and Infirm Persons’ Property Act.