Randall by his tutor Dr Frank Ainsworth v State of New South Wales

[2017] NSWSC 807

Supreme Court

New South Wales

Medium Neutral Citation:

Randall by his tutor Dr Frank Ainsworth v State of New South Wales [2017] NSWSC 807

Hearing dates:

20 June 2017

Date of orders:

20 June 2017

Decision date:

20 June 2017

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Pursuant to Section 75 of the Civil Procedure Act 2005, the settlement of the Plaintiffs be approved.

 

2. Judgment for the Plaintiff in the sum of $625,000 inclusive of any interest and/or Medicare and/or Centrelink payback (the Judgment Sum).

 

3. No order as to costs.

 

4. The amount specified by Medicare to be repayable is to be deducted and paid by the Defendant to Medicare Australia. The current estimate of that deduction is $3200.00.

 

5. The amount of $20,000 repayable to Victims Services NSW is to be deducted and paid by the Defendant.

 

6. Any amounts required by statute to be repaid are to be deducted and paid by the Defendant.

 

7. The Judgment Sum after deduction of the amounts referred to in paragraphs 4, 5, and 6 is to be paid to the solicitor for the Plaintiff, Carroll & O'Dea, lawyers into their Trust Account, on the undertaking of the solicitors for the Plaintiff to invest the sum and to account to the Plaintiff for the principal and interest on the Plaintiffs 18th birthday being 3 November 2017.
The Court notes:

 

8. No interest shall be payable in respect of the judgment referred to in paragraph 1 if it is paid within 28 days, whichever is the later, of the following:

 

(a) From the date of judgment; or
(b) In the event that the terms are filed in the Court, until 28 days after receipt by the Defendant's solicitors of the sealed consent judgment;
(c) Receipt by the Defendant of a notice under section 24 or 25 of the Health and Other Services (Compensation) Act 1995;
(d) Receipt by the Defendant of a notice of charge from Centrelink;
(e) Receipt by the Defendant's solicitor of a signed authority to receive from the Plaintiffs solicitor.

 

9. The Plaintiff acknowledges that he has been informed of her possible liability to pay to the Commonwealth of Australia money assessed as owing under the Health and Other Services (Compensation) Act 1995, the Health and Other Services (Compensation) Care Changes Act 1995 or the Social Security Act 1991 (Cth), as a result of this settlement.

 

10. The Plaintiff acknowledges that he has received notification of a notice of advance payment pursuant to section 33A of the Health and Other Services (Compensation) Act 1995.

 

11. The Plaintiff undertakes and agrees to pay out of the judgment sum in paragraph 2 any money repayable by the Plaintiff to any person or body whether in respect of workers' compensation, social services, sick leave payments, makeup pay, accident pay or otherwise which may not have been deducted by the Defendant pursuant to this consent judgment and also to pay any party entitled all outstanding medical, hospital, ambulance and other out of pocket expenses the Defendant is authorised to.

 

12. The Defendant is authorised to deduct and/or pay from the said sum any money payable by the Plaintiff to any person or body whether in respect of workers' compensation, social services, sick leave payments, makeup pay, accident pay or otherwise and whether in respect of any statute, regulation, award or agreement or otherwise concerning which demand or notice has been served on or given to the Defendant or their solicitors or insurers (either before, on or after the date hereof). Interest under this consent judgment shall not be recoverable by the Plaintiff in respect of that part of the judgment covered by any such deduction or payment.

 

The Court Directs:

 

13. The confidential material placed before the court on behalf of the Plaintiff will be retained by the Court file in an envelope marked "only to be opened by order of a judge".

 14. These orders not to be disclosed otherwise than as required by law.

Catchwords:

TORTS – claim by plaintiff for damages for physical and mental harm suffered while in foster care – matter settled prior to commencement of proceedings – approval of settlement

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Health and Other Services (Compensation) Act 1995 (NSW)
Health and Other Services (Compensation) Care Changes Act 1995
Social Security Act 1991 (Cth),

Category:

Principal judgment

Parties:

Dominic Randall by his tutor Dr Frank Ainsworth (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
L Saw (Plaintiff)
K Stewart (Defendant)

  Solicitors:
Carroll & O’Dea (Plaintiff)
Henry Davis York (Defendant)

File Number(s):

2017/158375

Judgment

1. This is an application for approval of a settlement pursuant to s 75 of the Civil Procedure Act 2005 (NSW). The Plaintiff is a minor who applies, by his tutor, for the settlement which was effected before proceedings were commenced. Section 75 (2) is therefore relevant. The claim the Plaintiff makes is for physical and mental harm he suffered whilst in foster care from the time he was aged about three years until the present. He was born on 3 November 1999 and is currently aged 17 years.

2. The nature of the abuse alleged is set out in a draft statement of claim annexed to an affidavit of the Plaintiff’s solicitor sworn 15 June 2017. It is not necessary for the purpose of this judgment to recite any of the matters contained in that statement of claim. It is sufficient to know that the allegations of abuse are very serious and the contemporaneous and subsequent medical evidence bears out the mental harm that the Plaintiff has suffered as a result of this alleged abuse.

3. I have been very considerably assisted by two reports from Dr Robert Hampshire, the psychiatrist, dated 3 December 2015 and 17 February 2017. The encouraging matter and perhaps the most encouraging matter in the material I have is the extent of the improvement that Dr Hampshire noted in the Plaintiff’s condition between the time he saw him in November 2015 and some 14 months later in February 2017. Nevertheless the evidence discloses that the Plaintiff suffered considerably and still has a diagnosis of post-traumatic stress disorder. However, Dr Hampshire is much more optimistic about the future as a result of the improvements he saw in February 2017. Dr Hampshire attributes a great deal of that improvement to the carers that the Plaintiff has been residing with since November 2015, in contradistinction to those with whom he had been residing in his earlier years.

4. The parties settled the proceedings at a mediation for an amount of $625,000 clear of costs and of all other matters except a Medicare charge of $3,200 and a repayment to Victims Services of $20,000. The result is that if the settlement is approved the Plaintiff will be entitled to receive a little over $600,000.

5. I am satisfied from reading all of the material and from an advice from the Plaintiff’s counsel, including a schedule of damages which was prepared, that in all the circumstances the settlement is an appropriate one.

6. The Plaintiff’s tutor has requested that in lieu of the verdict being paid out to the NSW Trustee and Guardian it ought either be kept in court or paid out to the Plaintiff’s solicitors for investment until he turns 18. He turns 18 in November 2017. In my opinion the most appropriate course is that the matter ought to be paid to the Plaintiff’s solicitors to be held on trust for him and invested in the best possible manner for the Plaintiff until he turns 18 and gives instructions in relation thereto. I note an undertaking from the Plaintiff’s solicitor in relation to any funds which are directed to be paid out to the Plaintiff’s firm, Carroll & O’Dea, dated 19 June 2017.

7. I make orders in terms of paras 1 to 6 and 8 of the consent order. I note paras 9 to 15.

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Decision last updated: 20 June 2017