SS (a pseudonym) v OT (a pseudonym)
[2023] ACTSC 111
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | SS (a pseudonym) v OT (a pseudonym) & Anor |
| Citation: | [2023] ACTSC 111 |
| Hearing Date(s): | 12 May 2023 |
| Decision Date: | 12 May 2023 |
| Before: | Curtin AJ |
| Decision: | See [25] |
Catchwords: | NEGLIGENCE – car accident which resulted in personal injury – where plaintiff is an infant – settlement of proceedings – court approval required for settlement involving an infant – settlement |
| approved | |
| Legislation Cited: | Court Procedure Rules 2006 (ACT) r 282 Health and Other Services (Compensation) Act 1995 (Cth) Lifetime Care and Support (Catastrophic Injuries) Act 2014 (ACT) s 9 Public Trustee and Guardian Act 1985 (ACT) s 25 |
| Cases Cited: | Paterson v Calvary Healthcare Act Ltd [2023] ACTSC 70 |
| Parties: | SS (a pseudonym) by her Litigation Guardian (Plaintiff) |
| OT (a pseudonym) (First Defendant) QBE Insurance (Australia) Ltd (Second Defendant) | |
| Representation: | Counsel |
| S McCarthy (Plaintiff) | |
| S Onitiri (Defendants) | |
| Solicitors | |
| Norwest Lawyers (Plaintiff) | |
| Moray & Agnew (Defendants) | |
| File Number(s): | SC 321 of 2017 |
| Curtin AJ: Introduction |
1. The Court will approve this settlement.
2. This case cannot be described as anything other than tragic.
3. The plaintiff was born on 17 May 2014. She suffered catastrophic injuries in a motor vehicle accident which occurred in the Australian Capital Territory on 3 August 2014 when she was approximately three and a half months old.
Background
4. The plaintiff was a back seat passenger in a vehicle being driven by her grandmother, who turned out of a service station onto the wrong side of the road. Liability was not disputed in the proceedings. The only question was the appropriate assessment of damages.
5. After the accident, the plaintiff was rushed by ambulance to Canberra Hospital where she was admitted for emergency treatment. She was transferred to the Sydney Childrens Hospital where she underwent emergency brain surgery. She received significant treatment from that hospital.
6. Following release from hospital, she attended the Sydney Childrens Hospital on a weekly basis. She was treated by a team of specialists including a neurosurgeon, paediatrician and paediatric neurologist.
7. In about September 2014, the plaintiff's parents retained, on behalf of the plaintiff, the plaintiff's present solicitors who are also experienced in this field.
8. Not long thereafter, the plaintiff's solicitors made an application on behalf of the plaintiff for her admission as an interim applicant to the Lifetime Care and Support Scheme. She was accepted as an interim applicant on 14 January 2015.
9. The plaintiff's injuries included extremely severe traumatic brain injury involving subarachnoid haemorrhage and necessitating decompressive craniotomy. She injured her right eye involving probable right sixth nerve palsy. She suffers from Terson Syndrome. She has left hemiplegia. She has sensory impairment of the left side, left foot drop, developmental delay, vision impairment, she suffers from seizures, she has impaired motor functioning and she has intellectual, physical and emotional impairment.
10. On 17 May 2019, the plaintiff was accepted as a lifetime participant of the Lifetime Care and Support Scheme. As a result of acceptance into that scheme, the plaintiff's reasonable and necessary treatment and care needs, as defined in s 9 of the Lifetime Care and Support (Catastrophic Injuries) Act 2014 (ACT), including the need for any medical treatment, attendant care services, respite care, housing modification, education and training, will be met by the scheme.
11. Accordingly, in the present proceedings, the only recoverable damages for the plaintiff are for non-economic loss or general damages, future loss of earning capacity, future loss of superannuation benefits and funds management costs.
12. The plaintiff has been assessed in April 2021 by a rehabilitation paediatrician who has filed a report dated 30 April 2021, which is included in the annexures to Exhibit 1 and which I have read.
13. The plaintiff and her family now reside in Upper Coomera in Queensland and regularly attend the Queensland Childrens Hospital.
14. According to the plaintiff's rehabilitation paediatrician, the plaintiff's current general condition is stable. However, she continues to suffer the effects of a severe acquired traumatic brain injury consistent with the symptoms described by that paediatrician, and it is predicted that she will continue to suffer those effects for the remainder of her life.
Settlement
15. I have the benefit of affidavits of the principal solicitor of the plaintiff's solicitors, the plaintiff's litigation guardian, who is her mother, the proposed private trustee, and the benefit of a joint opinion of senior and junior counsel for the plaintiff who are both experienced in the field of personal injury litigation. I also note the mediation at which settlement was achieved was conducted by an experienced mediator in the same field and the defendant was represented by experienced counsel in that field.
16. The parties conducted a private mediation on 9 November 2022 at Sir James Martin Chambers in Sydney, where the aforementioned counsel, solicitors and mediator attended.
17. During the mediation the parties came to an agreement to settle the proceedings in the sum of $2 million, plus funds management costs and plus legal costs. The sum of $2 million is broken down as being $566,393 for general damages and $1,433,607 for economic loss. Funds management costs are predicted to be $818,000 which brings the total settlement amount to $2,818,000, plus costs.
18. There will be no deduction from that settlement sum as the matter was settled clear of any repayments, including Medicare. The second defendant has agreed to pay any outstanding Medicare bills, although it is presently anticipated that that bill will be zero. The result of that is that there will be a total sum for investment in the sum of $2,818,000 and the plaintiff's costs will be paid by the defendants.
19. The plaintiff's parents immigrated from Iran. The plaintiff's mother performs unpaid domestic housework and cares for the plaintiff. The plaintiff's father works in the construction industry and has been able to effect changes to their home to account for the plaintiff's disabilities. Both parents have provided and continue to provide extensive care for the plaintiff due to her severe injuries.
20. I am satisfied that prior to the settlement, the plaintiff's counsel explained all necessary matters to the litigation guardian, answered questions that were asked of them and recommended the settlement.
21. It is proposed that after some intermediary steps, the settlement funds will be paid to a private trustee in lieu of the Public Trustee and Guardian. I have read the affidavit of Mr Grant Allan, who is the senior relationship manager of the proposed private guardian, being Australian Executor Trustees Ltd. I am satisfied that that company is an appropriate trustee to be appointed to manage the funds, the subject of these proceedings.
Conclusion
22. I am satisfied that the settlement sum is beneficial to the plaintiff's interests.
23. This is a case where there is no discount for any risk in terms of liability, but the sum is appropriate given the plaintiff's injuries, her prognosis and her personal circumstances.
24. The relevant principles in relation to this type of matter were set out by McWilliam AsJ (as her Honour then was) in Paterson v Calvary Healthcare Act Ltd [2023] ACTSC 70. There is no need to repeat those principles in this judgment. Suffice to say that I have applied those principles in approving this settlement and most particularly that the
settlement is beneficial to the plaintiff’s interests.
Orders
25. The following orders are made:
(1) Pursuant to s 111(2) of the Evidence (Miscellaneous Provisions) Act 1991
(ACT), the name of the plaintiff is prohibited from publication.
(2) Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991
(ACT), the name of the first defendant is prohibited from publication.
(3) Pursuant to r 282 of the Court Procedures Rules 2006 (ACT), the Court
approves a settlement of $2,818,000 (exclusive of costs).
(4) Subject to Order 3, the settlement sum is to be paid by the defendant into this
Court pursuant to s 25 of the Public Trustee and Guardian Act 1985 (ACT).
(5) The defendants shall pay the amount required to pay to Medicare Australia
pursuant to the Health and Other Services (Compensation) Act 1995 (Cth).
(6) Upon compliance with Orders 2 and 3, the moneys paid into Court are to be paid out of Court for payment to the Australian Executor Trustees Ltd of 44 Pirie St, Adelaide for investment on behalf of the plaintiff.
(7) Interest will not accrue or be payable by or on behalf of the defendant on the remainder of the judgment sum after the deductions in Order 3 if that sum is paid to the nominated trustee on or before the later of:
(a) 28 days after receipt by the defendant’s solicitors of a sealed copy of the Court’s judgment;
(b) 28 days after receipt by the defendant’s solicitors of an appropriate and original Medicare Notice of Judgment or Settlement Form signed
by the plaintiff’s litigation guardian; or
(c) 28 days after receipt by the defendant’s solicitors of a valid Centrelink Notice of Clearance or Charge.
I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin.
Associate:
Date: 24 May 2023
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