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:

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ryan v Larkham

Details

AGLC: Ryan v Larkham [2022] ACTSC 151
Case: [2022] ACTSC 151
Decision Date

CaseChat Overview and Summary

In Ryan v Larkham, the plaintiff, Evan Ryan, sued the defendants, Kevin Larkham and Bresheld Pty Ltd t/as Kambah Inn, for personal injury damages arising from an assault that occurred at the Kambah Inn. Ryan was punched by Larkham, causing him to fall and sustain cognitive injuries. Ryan's wife, Nichole Harrison, acted as his litigation guardian due to his incapacity. The case involved claims for various personal injuries, out-of-pocket expenses, economic loss, superannuation loss, and a substantial claim for domestic care and assistance. The parties reached a compromise settlement requiring court approval due to Ryan's incapacity, under r 282 of the Court Procedures Rules 2006 (ACT).

The court had to decide whether the proposed compromise was in Ryan's best interests. The decision in Veal (by his next friend Watson) v Hehir [2018] ACTSC 330 guided the court in exercising its discretion to approve or reject the settlement. The court considered the confidential advice provided to Harrison and the affidavits from the parties. McCallum CJ was satisfied that the proposed compromise was in Ryan's best interests, considering his cognitive impairments and the potential risk of exploitation. The court also found the proposed private trustee, AET, to be appropriate for managing the funds.

The court approved the compromise settlement of $1,245,000 plus agreed costs of $235,000. Judgment was entered for the plaintiff against Larkham for $300,000 and against Kambah Inn for $1,180,000, both inclusive of funds management and legal costs. The court ordered deductions for Medicare, the National Disability Insurance Agency, and Centrelink before paying the judgment sum into court. The sum was to be paid out to AET as trustee for the Evan Ryan Compensation Trust. The parties agreed that AET could transfer the trust fund to a superannuation fund if it was in Ryan's interests. The defendants had to pay Ryan's costs of $235,000 within 28 days of the orders being made.

Orders