Turner by her Tutor John Turner v State of New South Wales

[2018] NSWSC 1839

Supreme Court

New South Wales

Medium Neutral Citation:	Turner by her Tutor John Turner v State of New South Wales [2018] NSWSC 1839
Hearing dates:	22 November 2018
Date of orders:	22 November 2018
Decision date:	22 November 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	I make orders 2, 3, 8, 9 and 10 in the consent judgment, and note the matters recorded in paragraphs 4, 5, 6, and 7 of that judgment which I will sign and place with the papers
Catchwords:	PROCEDURE – approval of settlement – person under legal capacity – whether proposed settlement is beneficial to the interests of the plaintiff
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 76
Category:	Procedural and other rulings
Parties:	Kathryn Victoria Turner (plaintiff) State of New South Wales (first defendant) Michael John Bowler (second defendant) Richard Thomas Bowler (third defendant)
Representation:	Counsel: L King SC (plaintiff) B Cantrill (defendants)   Solicitors: Wordsworth Lawyers (plaintiff) Crown Solicitor’s Office (defendants)
File Number(s):	2016/143215
Publication restriction:	None

Judgment ex tempore – revised

1. HER HONOUR: This is an application for approval pursuant to s 76 of the Civil Procedure Act2005 (NSW) of a settlement of proceedings brought by Katherine Turner by a tutor, her father, against the State of New South Wales.

2. The proceedings arise out of a horse riding accident which occurred while the plaintiff was undertaking a week of work experience at a rural property. She was found in an injured state and conveyed to hospital. The horse belonged to the plaintiff; was ordinarily kept at the property in question and had been ridden there by the plaintiff many times before the week of work experience.

3. There is ample evidence before the Court to support the opinions of medical practitioners that she suffered from a significant brain injury. However, there is also evidence before the Court on the strength of which it is plain enough that there are a number of contested issues likely to be hard fought at the hearing concerning both liability and quantum.

4. In the circumstances, a settlement has been reached and the Court's approval is sought on the strength of a confidential advice from experienced senior and junior counsel. For obvious reasons it is inappropriate to go into the detail of the confidential advice. I have read it carefully and cross-referenced it to the open material that has been served in the proceedings.

5. As submitted by Mr King SC, without descending to the detail of the advice, the sum in which compromise has been reached is certainly “not trifling” while also reflecting a substantial compromise on any judgment that might be entered in the event that the plaintiff was successful on all issues.

6. I have had particular regard to the report of Ms Arnott, whose expertise is in the methodology of coaching horse safety. She has explained aspects of the inherent risks relating to horse riding, which might be perceived by common sense in any event. I have also had regard to the medical material served in the proceedings and the statements of some of the lay witnesses served on behalf of the defendants. That material discloses substantial issues in dispute concerning the circumstances in which the plaintiff came to be riding on her own that day and the injuries in respect of which she claims damages.

7. In all the circumstances, by reference to that material, I do not have any doubt that the settlement is beneficial to the plaintiff. On that basis, I am satisfied that it is appropriate to give the Court's approval to the settlement.

8. I make orders 2, 3, 8, 9 and 10 in the consent judgment, and note the matters recorded in paragraphs 4, 5, 6, and 7 of that judgment which I will sign and place with the papers.

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Decision last updated: 04 December 2018