Walters v ACT Brakes and Automotive Pty Ltd

[2022] ACTSC 65

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Walters & Anor v ACT Brakes and Automotive Pty Ltd

Citation:

[2022] ACTSC 65

Hearing Date(s):

11 March 2022

DecisionDate:

11 March 2022

Before:

McCallum CJ

Decision:

See [6]

Catchwords:

TORTS – Road Accident Cases – Compromise of proceedings involving an infant – requirement for Court approval – competing expert opinions

Legislation Cited:

Court Procedure Rules 2006 (ACT)

Cases Cited:

Duffel v Duffel [2015] ACTSC 123

Elliott (by his next friend) v Diener (1978) 21 ACTR 21

Parties:

Benjamin John Walters ( First Plaintiff)

Reuban Walters by his litigation guardian Briony Conway ( Second Plaintiff)

ACT Brakes and Automotive Pty Ltd ( Defendant)

Representation:

Counsel

A Jamieson (First Plaintiff)

A Muller ( Second Plaintiff)

Solicitors

Slater & Gordon ( First & Second Plaintiff)

DLA Piper Australia ( Defendant)

File Number(s):

SC 118 of 2020

McCALLUM CJ:

1. These are proceedings arising out of a motor vehicle accident in which the second plaintiff, an infant, was involved. The vehicle was driven by his father who is the first plaintiff. The accident caused the death of the second plaintiff's mother. As the second plaintiff was an infant at the time of the accident, the compromise of the proceedings requires the approval of the Court pursuant to r 282 of the Court Procedure Rules 2006 (ACT). The parties have reached a compromise of the second plaintiff's claim and now seek that approval.

1. The order sought is that judgment be entered for the second plaintiff against the defendant in the sum of $200,000 plus costs and disbursements agreed at $75,000 all inclusive.  The defendant is the entity which was responsible for issuing a roadworthy certificate in respect of the vehicle some four months prior to the accident.  In short, the plaintiffs' contention is that a reasonable inspection of the vehicle would have identified a defect in the left rear tyre of the vehicle at the time of inspection and that the vehicle ought not to have been passed as roadworthy in the circumstances.  There are competing expert reports exhibited to the affidavit of the second plaintiff's solicitor, Mr Casey, which reveal a stark contest as to the establishment of that central contention. 

1. I have this morning been provided, on a confidential basis, with an advice prepared by Mr Muller, Counsel for the second plaintiff, in which he sets out a careful and methodical basis for ultimately recommending the proposed settlement to the Court. 

1. There is no controversy as to the principles to be applied for the Court to reach a conclusion about approval of the settlement.  The correct approach is stated in a passage from the judgment of Blackburn CJ in Elliott (by his next friend) v Diener (1978) 21 ACTR 21 at 22, recently approved by Refshauge J in Duffel v Duffel [2015] ACTSC 123 at [28], as follows:

“The solicitor says in his affidavit that he has considered what would be for the benefit of the infant; but that is not enough.  The test of benefit to the infant is not whether the sum is adequate and reasonable.  The matter is not to be decided by the plaintiff’s own solicitor as if he were a judge awarding damages after a contested hearing.  The question which counsel or solicitor for the plaintiff has to decide, when considering a compromise of an infant’s claim is whether the prospect of getting a greater sum by rejecting the present offer is good enough to outweigh, significantly, the risk of not getting any more.  There may be various factors in such a decision, sometimes present and sometimes not; for example, the importance of termination of the proceedings may be great for some plaintiffs and insignificant for others.  The question of costs, also, will usually be significant.  The decision is peculiarly one for experienced counsel and solicitors.”

1. Based on my consideration of the competing expert reports exhibited to Mr Casey's affidavit and the contents of the confidential advice, I am satisfied that it is appropriate for the Court to give its approval to the proposed settlement of the claim. 

1. Accordingly, I make orders (1) to (8) sought in the application filed on 7 February 2022, being:

(1) Pursuant to r 282 of the Court Procedures Rules 2006 (ACT), the Court approves the settlement agreed between the parties in the sum of $200,000.00 (‘the judgment sum’);

(2)     Judgment be entered for the Second Plaintiff against the Defendant in sum of $200,000 plus costs and disbursements as agreed at $75,000 all inclusive (‘the costs sum’);

(3)     Judgment be entered without admission of liability from the Defendant;

(4)     10% of the total judgment sum and costs sum of $275,000, being $27,500, will be paid directly to Medicare, and following the deduction from those said monies, by Medicare, of any amount owing under a Notice of Charge issued, the balance of those monies will be paid into the Court, and then be paid to the ACT Public Trustee and Guardian;

(5)     The balance of the judgment sum is to be paid into the Court, and then be paid to the ACT Public Trustee and Guardian;

(6)     Interest in respect of the judgment sum will not run if paid within 28 days;

(7)     The Defendant is to pay the costs sum to the Second Plaintiff’s solicitors, as agreed in the amount of $75,000 all inclusive;

(8)     Interest in respect of the costs sum will not run if paid within 28 days.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 4 April 2022