Turnbull v Redmond - [2022] NSWSC 105

Supreme Court

New South Wales

Medium Neutral Citation: Turnbull v Redmond [2022] NSWSC 105
Hearing dates: 14 February 2022
Date of orders: 14 February 2022
Decision date: 14 February 2022
Jurisdiction: Common Law
Before: Ierace J
Decision:
Orders made in terms of the draft consent orders numbered (1) to (3) inclusive.

Catchwords:
CIVIL PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal capacity – whether proposed settlement is in the interests of the plaintiff

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 76

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

Category: Principal judgment
Parties: Adam Turnbull (Plaintiff)
Stephen Redmond (Defendant)
Representation:
Counsel:
Mr P Mooney SC (Plaintiff)
Mr K Rewell SC (Defendant)
Solicitors:
Masselos & Co (Plaintiff)
McCabes (Defendant)

File Number(s): 2020/185992

Judgment

HIS HONOUR: This is an application for approval of a proposed settlement of a claim for damages commenced on behalf of Adam Turnbull, the plaintiff, by his sister, Laura Turnbull (“Ms Turnbull”), as his tutor, against the defendant, Stephen Redmond. The application is made pursuant to s 76 of the Civil Procedure Act 2005 (NSW) (“the Act”), which provides that, in proceedings commenced on behalf of a person under legal incapacity, if an agreement for a compromise or settlement is made, that person is not bound by it unless it is approved by the Court.
The plaintiff claims to have suffered certain injuries consequent to a motor vehicle accident on 9 October 2016. A car being driven by the defendant collided with the plaintiff, allegedly after he moved onto a pedestrian crossing on the Old Illawarra Road, Illawong.
In a statement of claim filed by the plaintiff on 23 June 2020, the plaintiff alleged that the collision was consequent to negligence on the part of the defendant and that the plaintiff sustained injuries. These alleged injuries were a traumatic brain injury, lacerations, injuries to his face, right shoulder and upper and lower limb injuries, as well as amnesia, post-traumatic stress disorder, a depressive disorder and shock and sequelae. The plaintiff alleged that he suffered, and continues to suffer, loss and damage consequent to the collision.
The defendant, in his defence filed on 10 September 2020, admitted the collision and that the plaintiff suffered injury, loss and damage, but did not admit their extent.
Certain medical reports obtained by each party, and three reports obtained jointly by the parties, were annexed to an affidavit affirmed on 11 February 2022 by the plaintiff’s solicitor, Gregory Masselos. It is apparent from all of the material that the most significant injury suffered by the plaintiff was to his brain and related cognitive and psychiatric impacts. A joint neuropsychologists’ report, dated 15 October 2021, assessed the injury as being a severe traumatic brain injury which fell on the lower end of the spectrum of severity, so that it “is not a classic severe traumatic brain injury”. A joint psychiatric report, dated…

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.

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Details

Case: [2022] NSWSC 105
Decision Date: 14 February 2022

CaseChat Overview and Summary

The case of Turnbull v Redmond involved an application for the approval of a settlement of personal injury proceedings. The proceedings were commenced on behalf of a person under legal capacity, namely Turnbull, who was injured in a car accident. Redmond, the defendant, was the driver of the vehicle that caused the accident. The Court of Appeal was tasked with determining whether the proposed settlement was in the interests of the plaintiff, Turnbull.

The court was required to consider the evidence presented on behalf of Turnbull, including expert medical evidence, and to determine whether the proposed settlement amount was fair and reasonable. The court also had to consider the potential costs and benefits of proceeding with the litigation, as well as the potential impact on Turnbull's future care and support needs.

The court found that the proposed settlement was in the interests of Turnbull. The court considered the evidence presented, including expert medical evidence, and found that the proposed settlement amount was fair and reasonable. The court also considered the potential costs and benefits of proceeding with the litigation, and found that it was in Turnbull's best interests to settle. The court noted that the settlement provided for Turnbull's future care and support needs, and that the costs of proceeding with the litigation would be significant.

The court approved the proposed settlement, and orders were made accordingly. The court noted that the settlement was in the best interests of Turnbull, and that it provided for his future care and support needs. The court also noted that the costs of proceeding with the litigation would be significant, and that it was in Turnbull's best interests to settle. The orders made by the court provided for the payment of the settlement amount to Turnbull, and for the dismissal of the proceedings with costs.

Orders