Thiara bhnf Singh v All Occasion Cruises Pty Limited; Thiara bhnf Singh v All Occasion Cruises Pty Ltd; Singh v All Occasion Cruises Pty Ltd

[2024] NSWSC 505

Supreme Court

New South Wales

Medium Neutral Citation:

Thiara bhnf Singh v All Occasion Cruises Pty Limited; Thiara bhnf Singh v All Occasion Cruises Pty Ltd; Singh v All Occasion Cruises Pty Ltd [2024] NSWSC 505

Hearing dates:

29 April 2024

Date of orders:

29 April 2024

Decision date:

29 April 2024

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

Settlements approved: see [12] – [14]

Catchwords:

CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity and under Compensation to Relatives Act 1897 (NSW) – settlement approval application – Court to consider the best interests of plaintiffs – settlements approved

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Compensation to Relatives Act1897 (NSW)

Cases Cited:

Budini v Sunnyfield [2021] FCA 1540

Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451

Category:

Principal judgment

Parties:

2022/29551:
Dylan Thiara bhnf Daljit Singh (Plaintiff)
All Occasion Cruises Pty Ltd (Defendant)

2022/29542:
Arron Thiara bhnf Daljit Singh (Plaintiff)
All Occasion Cruises Pty Ltd (Defendant)

2022/29670:
Daljit Singh (Plaintiff)
All Occasion Cruises Pty Ltd (Defendant)

Representation:

Counsel:
D Stanton (Plaintiffs)

Solicitors:
Firths (Plaintiffs)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2022/29551; 2022/29542; 2022/29670

Publication restriction:

Nil

JUDGMENT – Duty – ex tempore (revised)

1. These are applications for judicial approval of settlements pursuant to s 76 (3) of the Civil Procedure Act 2005 (NSW) (“the Act”). The approval is necessary because the plaintiffs, Dylan Thiara by his next friend Daljit Singh, and Arron Thiara by his next friend Daljit Singh, are under a legal incapacity, both being under the age of 18 years of age. Compensation to Relatives Act1897 (NSW) (“Compensation to Relatives Act”) proceedings have been commenced by Daljit Singh on his behalf and on behalf of his sons, Dylan and Arron. Each of Dylan and Arron have nervous shock claims pursuant to the Civil Liability Act 2002 (NSW) (“CLA”).

2. The proceedings arise out of an incident which occurred on 2 February 2019 when Daljit Singh and his long-term partner, Shalina Abdulhussein (“the deceased”) attended a friend’s birthday celebration on board a vessel for a four hour cruise within the confines of Sydney Harbour. At all material times the first defendant operated the vessel and the second defendant was the master of the vessel. During the course of the cruise, the deceased entered the inner starboard toilet cubicle located on the vessel’s lower deck and subsequently lost consciousness whilst inside. She was discovered in the inner starboard toilet cubicle after being reported missing. She was unresponsive upon discovery and was later declared deceased by responding emergency services.

3. Subsequent investigations found that her death was likely caused by exposure to hydrogen sulphide present in the inner starboard toilet cubicle which had encroached from the sullage tanks by a faulty wireless waste trap. The cause of death was subsequently confirmed by the State Coroner to be as a consequence of the inhalation of hydrogen sulphide.

4. Both Dylan and Arron suffered psychological injuries consequent upon the death of their mother. The plaintiffs’ cases are that the defendant was negligent in the manner in which they managed the waste traps. In 2022 they commenced these proceedings seeking the recovery of damages pursuant to the CLA.

5. The parties have reached proposed settlements and they are now before me for approval.

6. In support of the application for the approval of Dylan’s case, I received the following: an affidavit of Daljit Singh affirmed on 9 April 2024, an affidavit of the plaintiff’s solicitor, Evan Paul Griffith, sworn on 23 April 2024 and a confidential advice of Mr Stanton of counsel.

7. In support of the application for approval of Arron’s case, I received an affidavit of Daljit Singh affirmed on 9 April 2024, an affidavit of the plaintiff’s solicitor, Evan Paul Griffith, sworn on 23 April 2024 and a confidential advice of the plaintiff’s counsel, Mr Stanton.

8. With respect to the Compensation to Relatives Act claim, to the extent that it concerns monies to be paid to the plaintiffs Dylan and Arron, reliance is placed on the affidavits of Mr Singh affirmed in his sons’ cases and the affidavit of Evan Paul Griffith relied upon in Dylan’s and Arron’s cases. I have also received a separate confidential advice of the plaintiff’s counsel, Mr Stanton.

9. In an application for approval of a settlement pursuant to s 76(3) of the Act, the Court’s function is protective. The ultimate question is whether the proposed settlement is beneficial to the interests of the plaintiff or is in his or her best interests - see Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 at [29] and Budini v Sunnyfield [2021] FCA 1540 at [10]. It is the Court’s responsibility to determine the matter, albeit with the assistance of confidential advice provided by counsel for the plaintiffs - see Mills at [29]; Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 at [27]. In its determination the Court is to consider the advantages and disadvantages of the litigation continuing, not only in terms of whether a plaintiff might secure a more advantageous award from the Court at trial, but also issues such as prospects of an appeal and the costs and pressures imposed on a plaintiff if the litigation were to continue. The tutor must also assent to the compromise, which has occurred here.

10. Whilst there appear to be no serious disputes about breach of duty and causation there would be, if the matter was to proceed, significant disputes as to non-economic loss damages particularly in light of the recovery of the plaintiffs, Dylan and Arron, as they have fared well, notwithstanding the loss of their mother. I have taken into account the expert psychiatric evidence which has been served in Dylan’s and Arron’s cases. I have also carefully considered the opinions and conclusions of counsel in the confidential advices and I take those matters into account. I also take into account the matters and opinions expressed by Mr Singh in his affidavit, as well as the matters and opinions expressed by Mr Griffith in his affidavits.

11. Bearing in mind all the material that has been placed before me, in my opinion the proposed settlements in each of the nervous shock claims and in the Compensation to Relatives Act claims is beneficial and in the interests of each of the infant plaintiffs.

12. In the Compensation to Relatives Act claim I make the following orders:

1. I approve the settlement to the extent that the settlement provides sums to be paid to Dylan and Arron Singh, pursuant to s 76 of the Act.

2. I make orders 3,4 and 6 of the Consent Orders.

3. I note paragraphs 1,2 and 5 of the Consent Orders.

4. I grant leave to file a Notice of Discontinuance.

13. With respect to the claim brought by Dylan Thiara bhnf Daljit Singh by consent and without admission of liability, I make the following orders:

1. I approve the settlement pursuant to s 76 of the Civil Procedure Act.

2. I make orders 2, 4, 5, 7, 8, 9 and 12 of the Consent Orders.

3. I note paragraphs 1, 3, 6, 10, 11 and 13 of the Consent Orders.

4. I grant leave to file a Notice of Discontinuance.

14. With respect to the claim brought by Arron Thiara bhnf Daljit Singh, by consent and without admission of liability, I make the following orders:-

1. I approve the settlement pursuant to s 76 of the Act.

2. I make orders 2, 4, 5, 7, 8, 9 and 12 of the Consent Order.

3. I note paragraphs 1, 3, 6, 10, 11 and 13 of the Consent Orders.

4. I grant leave to file a Notice of Discontinuance.

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Decision last updated: 02 May 2024