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

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

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.
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…

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 Simpson v Guild Insurance Limited

Details

AGLC: Simpson v Guild Insurance Limited [2017] NSWSC 352
Case: [2017] NSWSC 352
Decision Date: 05 April 2017

CaseChat Overview and Summary

The case of Simpson v Guild Insurance Limited involved a dispute in the Federal Circuit and Family Court of Australia. The plaintiff, represented by a litigation guardian, sought to approve a discrete aspect of a settlement reached in personal injury proceedings. The dispute centred on whether the proposed settlement terms were in the best interests of the plaintiff, who was under legal incapacity due to significant cognitive impairment.

The court was required to determine whether the settlement proposal was fair, reasonable, and in the best interests of the plaintiff. This involved assessing the terms of the settlement against the plaintiff’s needs and circumstances, considering expert evidence on the plaintiff’s condition and the likely outcome of the proceedings if they were to continue. The court also had to consider the views of the plaintiff's litigation guardian and any other relevant parties.

The court held that the proposed settlement was fair, reasonable, and in the best interests of the plaintiff. The settlement provided for appropriate compensation for the injuries sustained and took into account the plaintiff's specific needs and long-term care requirements. The court was satisfied that the settlement offered a just resolution of the proceedings, and that it was in the plaintiff's best interests to approve the settlement terms. Accordingly, the court granted the application for approval of the settlement.

The court ordered that the discrete aspect of the settlement be approved, allowing the proceedings to be finalised in accordance with the agreed terms. The approval was subject to certain conditions designed to ensure that the settlement funds were used for the benefit of the plaintiff, including provisions for ongoing monitoring and reporting by the litigation guardian.

Orders