Polglase BHT Polglase v Coffs Harbour City Council

[2025] NSWSC 207

Supreme Court

New South Wales

Medium Neutral Citation:

Polglase BHT Polglase v Coffs Harbour City Council [2025] NSWSC 207

Hearing dates:

14 March 2025

Date of orders:

14 March 2025

Decision date:

14 March 2025

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Pursuant to s 76(1)(c) of the Civil Procedure Act 2005 (NSW) (CPA), I find the plaintiff is a person incapable of managing his own affairs.

2. Pursuant to s 76(4) of the CPA, I approve the settlement of the proceedings contained in the agreed orders.

3. The judgment sum, less any amount to be deducted pursuant to order 5 of those orders is to be paid into Court pursuant to s 77(3) of the CPA.

4. The first and third defendants to pay the plaintiff’s damages costs as agreed or assessed.

5. I otherwise make the orders and notations contained in the agreed orders.

Catchwords:

TORTS – negligence - damages – incapacitated person – approval of settlement

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Coffs Harbour City Council v Polglase [2020] NSWCA 265

Gray bhnf Salasovicova v St Vincent’s Health Australia t/as Mater Hospital Sydney [2019] NSWSC 1402

Polglase v Coffs Harbour City Council [2019] NSWSC 1848

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Tedmund Polglase BHT Jeffrey Polglase (Plaintiff)
Coffs Harbour City Council (First Defendant)
Coffs Jetty Foreshore Reserve Trust (Third Defendant)

Representation:

Counsel:
R S McIlwaine SC & R Quickenden (Plaintiff)
F McGinley (First & Third Defendants)

Solicitors:
Whitelaw McDonald (Plaintiff)
Mills Oakley (First & Third Defendants)

File Number(s):

2014/281434

Publication restriction:

Nil

JUDGMENT

1. The plaintiff, when aged about 5 years, was severely injured in an accident on the jetty at Coffs Harbour on 30 September 2011. He fell some 4 metres off the jetty onto hard sand and, in the course of doing so, suffered a number of orthopaedic injuries, as well as a severe closed-head injury. Some of the orthopaedic injuries are permanent, particularly the fact that one of his legs is shorter than another.

2. The head injury has left a permanent residue, with damage having occurred to the temporo-parietal region of the brain, the midbrain and the cerebellar peduncles. Those brain injuries have left him with a permanent visual impairment partly to the oculomotor cerebral nerve which causes him to have fixed dilated pupils, which has an obvious effect in sunlight. He has undergone at least two operations on his eyes in that regard, but there are still permanent issues which are ultimately as a result of the brain injury to the C2 nerve. The brain injury has also resulted in certain behavioural problems although his cognitive abilities appear to be unaffected.

3. The issue of liability was determined in this matter by Cavanagh J in Polglase v Coffs Harbour City Council [2019] NSWSC 1848. The matter went to the Court of Appeal which, effectively, upheld Cavanagh J's decision that two groups of the defendants sued remained liable for the injuries suffered by the plaintiff: Coffs Harbour City Council v Polglase [2020] NSWCA 265.

4. The determination of the damages recoverable by the plaintiff for his injuries was delayed because he was at an early stage of his adolescence and the full extent of the permanent damage was not then ascertainable. The damages hearing is fixed for October 2025.

5. A mediation has been held, and subsequently, an agreement has been reached between the parties for the payment of an agreed sum for damages, together with the plaintiff's party/party costs of the damages part of the proceedings. The parties wish the amount of the settlement agreed to remain confidential and have agreed that it should do so. For that reason, I have not in these remarks mentioned the amount of the agreed settlement.

6. I have been provided with a confidential advice by Mr McIlwaine SC and Mr Quickenden who appear for the plaintiff. They recommend the settlement in that advice.    I am satisfied now, having clarified a few of the matters contained in that advice, that the settlement should be approved because it is a very reasonable settlement to compensate the plaintiff for the injuries which he has suffered.

7. A significant are of uncertainty relates to the likelihood of the plaintiff obtaining and retaining employment largely because of the behavioural issues brought about by the brain damage. His history of employment to date indicates that there are likely to be problems in that regard. I am satisfied, however, that appropriate allowance has been made for future loss of earnings.

8. I was asked, as part of the orders put forward to resolve the matter finally, to order that two amounts representing the difference between party/party costs on each of the liability and damages proceedings and the costs actually billed by the solicitors acting for the plaintiff for each of those proceedings be payable out of the settlement agreed. For the reasons given by Harrison J in Gray bhnf Salasovicova v St Vincent’s Health Australia t/as Mater Hospital Sydney [2019] NSWSC 1402 at [10]-[13], I decline to make such an order. The appropriate course is, after the appointment of a trustee which will be engaged for the funds management of the settlement on behalf of the plaintiff, for application to be made to the trustee so appointed in respect of those costs. Nor do I consider it appropriate to provide any indication whether the costs claimed are reasonable.

9. I make orders in terms of paragraphs 1, 3, 4, 5, 8, 10, 11, 13 and 14 of the proposed short minutes of order.

10. I note paragraphs 2, 6, 9 and 12 of those suggested orders

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Decision last updated: 17 March 2025