Ryan v Larkham

[2022] ACTSC 151

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Ryan v Larkham

Citation:

[2022] ACTSC 151

Hearing Date:

24 June 2022

DecisionDate:

24 June 2022

Before:

McCallum CJ

Decision:

See [9]

Catchwords:

CIVIL PROCEDURE — Personal injury claims — Where plaintiff incapacitated by reason of cognitive injury — Settlement of proceedings — Approval of the Court required — Whether proposed compromise is in plaintiff’s interests

Legislation Cited:

Court Procedures Rules 2006 (ACT), r 282

Health and Other Services (Compensation) Act 1995 (Cth)
Income Tax Assessment Act 1997 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Public Trustee and Guardian Act 1985 (ACT), s 25

Social Security Act 1991 (Cth)

Cases Cited:

Veal (by his next friend Watson) v Hehir [2018] ACTSC 330

Parties:

Evan Ryan by his litigation guardian Nichole Harrison ( Plaintiff)

Kevin Larkham ( First Defendant)

Bresheld Pty Ltd t/as Kambah Inn (Second Defendant)

Representation:

Counsel

D Crowe ( Plaintiff)

D Crowe (Mention for First Defendant)

G Bridger (Agent for Second Defendant)

Solicitors

AC Lawyers ( Plaintiff)

Tim Sharman Solicitors ( First Defendant)

Wotton + Kearney (Second Defendant)

File Number:

SC 568 of 2019

McCALLUM CJ:

1. These are proceedings for damages for personal injury arising from the assault and battery of the plaintiff in an incident at a pub, the business of which is conducted by the second defendant.  The alleged assault consisted in the first defendant punching the plaintiff in a way that caused him to fall onto a concrete footpath.  As a result of that fall, he claims to have suffered various cognitive deficits.  One consequence of the injuries incurred in the accident is that the plaintiff has conducted the proceedings by his litigation guardian, his wife, Nichole Harrison.

1. The action includes claims for a variety of personal injuries together with out-of-pocket expenses, past and future economic loss, superannuation loss and a substantial claim for domestic care and assistance. The parties have reached a compromise of the proceedings which, by reason of the plaintiff's incapacity, requires the approval of the Court in accordance with r 282 of the Court Procedures Rules 2006 (ACT). That rule confers a broad power, the nature of which is informed by a number of authorities considered in a confidential advice relied upon in support of the present application for approval of the settlement.

1. In particular, the plaintiff relies on the discussion of the nature of the power in the decision of McWilliam AsJ in Veal (by his next friend Watson) v Hehir [2018] ACTSC 330 at [21]-[23]:

“[21] The rule reflects the inherent protective jurisdiction of the Court (described as the court’s parens patriae jurisdiction), exercised under the framework provided for by the rules and statutes: Singh (by her next friend Singh) v Calvary Hospital Act Inc (No 2) [2009] ACTSC 57; 3 ACTLR 247 at [11]; Duffell v Duffell [2015] ACTSC 123 at [11].

[22] The parens patriae jurisdiction is ancient, wide-ranging and far-reaching. It extends as far as necessary for the protection of children and those persons who from their legal disability cannot look after themselves and are in need of protection: Secretary, Department of Health and Community Services v JWB and SMB [Marion’s Case] (1992) 175 CLR 218 at 258–9 per Mason CJ, Dawson, Toohey and Gaudron JJ, 278–80 per Brennan J.

[23] From the words emphasised above in r 282, it may be seen that the rule reflects the Court’s power to protect the interests of a person under a legal disability, by maintaining full control over any settlement compromising their claim: Dietz v Lennig Chemicals Ltd [1969] 1 AC 170 at 189 per Lord Pearson.”

1. McWilliam AsJ noted that the overriding principle in exercising the discretion whether to approve a settlement is for the Court to consider whether the proposed compromise is or is not beneficial to the interests of the person under the incapacity and that that decision is uniquely one for the Court and not the parties.

1. In the present case, as is frequently the case, the application is supported by a confidential advice provided to the plaintiff's litigation guardian before she agreed to the compromise.  The application is also supported by an affidavit by the plaintiff's solicitor, Mr Christopoulos, and by the litigation guardian, Ms Harrison.  There is also an affidavit from the proposed private trustee explaining the services provided by the trustee including the fact that, in accordance with what is evidently the usual practice in this jurisdiction, the task of giving financial advice in respect of investment of the fund is effectively contracted out by the trustee to a financial adviser and that, between the financial adviser and the trustee, a complete suite of appropriate services is proposed to be provided to the plaintiff.

1. I have given careful consideration to the confidential advice prepared by Mr Crowe, who appears for the plaintiff today.  I have given attention to the individual issues discussed in that advice and am satisfied that the proposed compromise is in the plaintiff's interests.  I am also satisfied that the proposal to invest the fund with the private trustee, AET, is appropriate.  In particular, it is clear that comprehensive advice has been given by Mr Grant-Allen to the litigation guardian, Ms Harrison.  It is also clear from her affidavit that she has understood that advice and understands the alternatives to investing the fund with a private trustee.

1. It is particularly relevant to note that Ms Harrison states in her open affidavit that she is concerned, based on her personal observation of her husband since the accident, that his brain injury has resulted in his having difficulty with cognition, problems with concentration, attention and executive functioning and that she believes he would be vulnerable to exploitation.  The risk of exploitation of persons who receive substantial funds in the compromise of personal injuries claims in similar circumstances is not unknown to the Court.

1. In all the circumstances, I am satisfied that it is appropriate to give approval to the proposed compromise and the orders proposing for disbursement of the proceeds by payment out to the private trustee. 

1. For those reasons, I make the following orders:

(1)       Approve the compromise of the plaintiff’s claim against the defendants in the sum of $1,245,000 plus costs agreed at $235,000.

(2)       Judgment be entered for the plaintiff against the first defendant in the sum of $300,000 inclusive of funds management and inclusive of legal costs.

(3)       Judgment be entered for the plaintiff against the second defendant in the sum of $1,180,000 inclusive of funds management and inclusive of legal costs.

(4)       Prior to payment of the judgment sum into Court, the defendant deduct from that sum and pay:

(a)       The sum the subject of a notice of charge issued by Medicare Australia pursuant to the Health and Other Services (Compensation) Act 1995 (Cth);

(b)       The sum the subject of any recovery notice issued by the National Disability Insurance Agency pursuant to the National Disability Insurance Scheme Act 2013 (Cth); and

(c)       The sum the subject of any recovery notice issued by Centrelink pursuant to the Social Security Act 1991 (Cth).

(5) The defendants pay the judgment sum less any amounts paid in accordance with order 3 above and order 9 below into Court pursuant to s 25 of the Public Trustee and Guardian Act 1985 (ACT).

(6)       The sum paid into Court is to be paid out by the Court to Australian Executor Trustees Ltd (AET) as trustee to be held pursuant to the Evan Ryan Compensation Trust established under the deed which is annexure C to the affidavit of Mr Tim Grant-Allen 3 May 2022 (Trust Fund).

(7)       Note the agreement between parties that AET may, if it is in the plaintiff’s interests to do so, transfer the whole or any part of the trust fund to a superannuation fund [being a complying superannuation fund for the Income Tax Assessment Act 1997 (Cth)] of which the plaintiff is or becomes a member and shall thereafter manage the plaintiff’s rights as a member of the fund for his benefit.

(8)       Note the agreement between the parties that no interest is payable on the judgment sum if the defendants pay that amount not later than 28 days after the latest of the following:

(a)       The day each defendant receives a sealed copy of these orders.

(b)       The day each defendant receives a Medicare notice of settlement or judgment.

(c)       The day each defendant receives any clearance notice from Centrelink

(9)       The defendants pay to his solicitors the plaintiff’s costs of the proceedings agreed in the sum of $235,000, such amount to be paid out of the judgment sum.

(10)      No interest is payable on costs if paid within 28 days of orders being made pursuant to this application.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: