Simpson v Guild Insurance Limited

[2017] NSWSC 352

Supreme Court

New South Wales

Medium Neutral Citation:	Simpson v Guild Insurance Limited [2017] NSWSC 352
Hearing dates:	3 April 2017
Decision date:	05 April 2017
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) The defendant is to pay damages for funds management over the plaintiff’s life expectancy of 72 years, in the amount of XXX. (2) The amount for funds management referred to above is to be paid into Court pending further order. (3) No interest shall be payable, in respect of the amount referred to in order 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 terms are filed in the Court, until 28 days after receipt by the defendant’s solicitors of the sealed consent judgment. (4) The plaintiff’s costs (once agreed or assessed) are to be paid directly by the plaintiff’s solicitors in accordance with an Authority to Receive to be executed by the plaintiff’s next friend. (5) Costs of the now-resolved dispute about funds management are to be paid by the defendant.
Catchwords:	CIVIL – PRACTICE AND PROCEDURE – application for approval of discrete aspect of settlement – personal injury proceedings commenced on behalf of a person under legal incapacity – whether proposed settlement is in the interests of the plaintiff – settlement approved
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 76 Court Suppression and Non-Publication Orders Act 2010 (NSW)
Cases Cited:	Gray v Richards (2014) 253 CLR 660; [2014] HCA 40 Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298
Category:	Principal judgment
Parties:	Luke Simpson by his next friend Andrew Simpson (Plaintiff) Guild Insurance Limited (Defendant)
Representation:	Counsel: P Semmler QC and R J Taylor (Plaintiff)   Solicitors: Carroll & O’Dea Lawyers (Plaintiff) Meridian Lawyers (Defendant)
File Number(s):	2010/289482
Publication restriction:	Nil

Judgment

Introduction

1. This matter came before me by way of the plaintiff, who is represented by his tutor, seeking approval of a settlement pursuant to s 76 of the Civil Procedure Act 2005 (NSW). Because the vast bulk of the dispute that arose between the plaintiff and the defendant (the insurer of a childcare centre that has gone into liquidation) has already been approved, and because of my firm satisfaction that the remaining and final settlement that I am being asked to approve is completely appropriate, I shall be brief.

Background

2. On 18 September 2007, the plaintiff, then aged 3 years old, was at a childcare centre in the northern Sydney suburb of Brookvale. Tragically, he became entangled in the cord of a blind cover, and thereby suffered deprivation of oxygen to the brain, with the result that he is significantly and permanently brain-damaged.

3. A claim for a very significant sum of money was made by the plaintiff against the defendant in this Court. Ultimately, the proceedings were settled after mediation, and that settlement was approved by Harrison J on 21 November 2016. Pursuant to that approval, money was paid into court by the defendant on 19 December 2016.

4. At that stage, the only two matters requiring resolution were the question of costs between the parties, and the question of the amount that should be paid towards management of the funds over the course of the life of the plaintiff.

5. On 13 February 2017, the question of costs was resolved. I was assured by the parties that my approval of that aspect of the settlement is not required.

6. On 20 March 2017, the question of the quantum payable for funds management was also resolved. That constitutes the final step in the resolution of this entire matter, and is the settlement that I am asked to approve.

Evidence before me

7. The affidavit evidence before me establishes the following.

8. The tutor of the plaintiff is his father, who enjoys the advantage in fulfilling that role of being a solicitor of this Court. Both the plaintiff’s father and mother have chosen a particular funds manager, which is a very well-known and long-established private firm. Other fund managers have also been approached, and estimates of their costs provided. The proposed private manager is not the most expensive; having said that, its fees are greater than those of another private funds manager, and substantially greater than the fees of the NSW Trustee & Guardian.

9. The settlement that is proposed is greater than 96% of the fees of the proposed private funds manager. In other words, whilst it is true that the settlement does not provide the plaintiff with his proposed maximum claim, it comes extremely close to it.

10. I also had the benefit of a confidential annexure to the affidavit of the solicitor of the plaintiff of 30 March 2017. The confidential annexure is a written advice of Queen’s Counsel and junior counsel of the plaintiff. Without descending into the detail of it for self-evident reasons, it sets out the possible forensic problems that could arise if the claim for funds management by the preferred provider were pursued to the upmost.

11. I was also assured from the Bar table that all three of solicitor, junior counsel, and Queen’s Counsel retained in this matter by the plaintiff are experts in this field, with long experience of assessing the prospects of claims for personal injuries arising from negligence, including the ancillary question of funds management.

12. Affidavit evidence also establishes that the injury suffered by the plaintiff, and the concomitant litigation, has been emotionally difficult for each of his parents, entirely as one would expect. Again entirely understandably, they wish to avoid the stress of a disputed hearing – even one with a rather circumscribed subject matter – if reasonably practicable. They also wish to avoid the uncertainty arising from such a hearing, including the possibility that, whatever the strength of the case for the plaintiff, one cannot be assured of success in any litigation. Having referred to the position of the parents of the plaintiff, I hasten to add that there is not the slightest suggestion that either of them is motivated by anything other than love and concern for the well-being of their son for the rest of his life.

Determination

13. Turning to my determination, the test I am called upon to apply is simply whether the settlement is in the best interests of the incapacitated plaintiff: see Gray v Richards (2014) 253 CLR 660; [2014] HCA 40 and Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298.

14. Because of my acceptance that litigation generally is always uncertain; my appreciation of the particular forensic issues that could arise at a disputed hearing; my acceptance that the legal team of the plaintiff is soundly qualified to advise him and his parents about this question; and, most significantly, because of the fact that the proposed settlement constitutes over 96% of the maximum claim that could be made with regard to funds management in any event, I am soundly satisfied that I should approve this final step in the resolution of the matter.

15. As for my precise orders, I was helpfully provided with Short Minutes on behalf of the plaintiff that form the basis of the following. I was also asked by his counsel (with the express consent of the advocate for the defendant) to order that the defendant pay the costs of this particular, now-resolved dispute.

16. Finally, in order to protect the confidentiality of a 13-year-old boy and his parents about a significant sum of money, I propose that the quantum of order 1 will not appear on Caselaw. If either party seeks greater confidentiality than that, I would need to be persuaded that the necessary tests in the Court Suppression and Non-Publication Orders Act 2010 (NSW) have been established.

Orders

17. I make the following orders:

1. The defendant is to pay damages for funds management over the plaintiff’s life expectancy of 72 years, in the amount of XXX.

2. The amount for funds management referred to above is to be paid into Court pending further order.

3. No interest shall be payable, in respect of the amount referred to in order 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 terms are filed in the Court, until 28 days after receipt by the defendant’s solicitors of the sealed consent judgment.

4. The plaintiff’s costs (once agreed or assessed) are to be paid directly by the plaintiff’s solicitors in accordance with an Authority to Receive to be executed by the plaintiff’s next friend.

5. Costs of the now-resolved dispute about funds management are to be paid by the defendant.

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Decision last updated: 05 April 2017