Shenman v Erasmus School (Ruling)
[2011] VCC 492
•5 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-09-01408
ELLA SHENMAN
| (an infant who sues by her litigation Guardian BELINDA SHENMAN) | Plaintiff |
| v | |
| ERASMUS SCHOOL | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF RULING: | 5 April 2011 |
| CASE MAY BE CITED AS: | Shenman v Erasmus School (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 492 |
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RULING
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Catchwords: Infant’s compromise – settlement at mediation – later withdrawal of litigation guardian’s consent.
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HER HONOUR:
1 This is an application for approval of a compromise of the infant plaintiff’s claim entered into at a mediation on 9 December 2010 (“the compromise”).
2 By the compromise, the defendant proposes to pay the sum of $50,000 to the infant plaintiff, together with costs, in full settlement of her claim.
3 The infant plaintiff is presently aged fourteen, having been born on 10 May 1996.
4 The claim relates to allegations of bullying by a fellow student when the plaintiff attended the defendant’s school in 2002 to 2003 (“the bullying”). It is alleged that as a result of the bullying, the plaintiff suffered psychiatric injuries.
5 The offer was accepted by the Litigation Guardian, the infant plaintiff’s mother, at the mediation, subject to the Court’s approval.
6 On 24 December 2010, Mr Tobin SC advised that the compromise was in the best interests of the plaintiff.
7 On 7 January 2011, Mills Oakley Lawyers (the infant plaintiff’s solicitors) were instructed to act on behalf of the infant plaintiff.
8 On 4 February 2011, the infant plaintiff’s solicitors were advised by the Litigation Guardian that she now did not wish to accept the offer.
9 In an affidavit sworn on 11 February 2011, the Litigation Guardian confirmed she had given instructions to accept the offer at the mediation but that after further consideration of the matter, she was no longer willing to settle the claim.
10 Exhibited to the Litigation Guardian’s affidavit was an eleven page document written by her entitled “Belinda Shenman Affidavit” detailing her reasons for now not accepting the offer. Also exhibited was a document entitled “Mental Health Care Plan” completed by a Dr Birchall dated 17 December 2006 which the Litigation Guardian deposed provided further medical evidence as to the damage suffered by the infant plaintiff. This document was not available at the mediation and was provided on 7 February 2011.
11 In the Belinda Sherman Affidavit document, the Litigation Guardian set out her views as to the inadequacy of the proposed settlement sum, and noted that Mr Tobin SC was not provided with the complete file from the infant plaintiff’s former solicitors, in particular, Dr Birchall’s Mental Health Plan, to properly consider the issues of quantum.
12 Further, the Litigation Guardian was unhappy as the settlement sum was far below the figure of in excess of $100,000 suggested to her by her former solicitors.
13 In the Litigation Guardian’s view, there was more to the infant plaintiff’s claim than the bullying. She considered the claim also encompassed inappropriate sexual behaviour by the perpetrator of the bullying; the enforcement of punishments by the defendant and the infant plaintiff’s anxiety in relation thereto; the defendant’s imposition of religious beliefs on the infant plaintiff; the need for the infant plaintiff to undergo further therapy; the costs of private school education which the plaintiff requires; and the Litigation Guardian’s loss of income.
14 Having considered the Litigation Guardian’s affidavit, my associate contacted Mr Tobin SC, requesting he provide further advice in light of the Litigation guardian’s affidavit and the exhibits thereto.
15 On 8 March 2011, Mr Tobin SC further advised that having considered the additional material, he remained firmly of the view that the proposed compromise was in the best interests of the infant plaintiff.
16 Mr Tobin SC noted that the diagnosis made by Dr Birchall was primarily dependent upon the Litigation Guardian’s assertions – some of which were denied by the infant plaintiff. Further, such assertions were strongly contested by the defendant and there was no corroborating evidence in relation thereto.
17 Mr Tobin SC advised the plaintiff would, upon her presentation in conference, and on her instructions, deny a number of these assertions which would create a great difficulty in the conduct of the trial. The situation would then arise that the Court would have to face the difficulty of having to disbelieve the plaintiff and then accept the Litigation Guardian’s hearsay evidence or indirect evidence in preference to the infant plaintiff’s evidence and the denials made by the defendant to be able to make a judgment favourable to the plaintiff.
18 In my view these issues raised by Mr Tobin SC pose significant difficulties for the infant plaintiff in running her case at trial.
19 The fact that there is an agreement between the Litigation Guardian and the defendant is relevant, but not conclusive. In some cases a Court will not approve a compromise notwithstanding such agreement. The attitude of the Litigation Guardian as to the adequacy of the settlement is a relevant factor but by no means decisive, as Rothman J explained in Fisher v Marin [2008] NSWSC 1357, at 33:
“… Nevertheless, the attitude of the tutor and her counsel before the Court is a matter that the Court is entitled to consider as one factor, not wholly irrelevant, in determining whether the agreement is for the benefit of the plaintiff.”
20 None of the reasons advanced by the Litigation Guardian persuade me that the settlement is not in the interests of the infant plaintiff.
21 Taking into account all of the material and the two advices of Counsel, I am satisfied that the proposed compromise is one which would benefit the infant plaintiff and that she is at risk, if the matter went to trial, that the result would be less favourable than this settlement offer.
22 Accordingly, in the absence of the Litigation Guardian’s consent, and being aware of her objection to the proposed compromise, I approve the compromise in the terms proposed as being in the best interests of the infant plaintiff.
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