West v Fewkes

[2015] NSWSC 374

Supreme Court

New South Wales

Medium Neutral Citation:	West v Fewkes [2015] NSWSC 374
Hearing dates:	1 April 2015
Date of orders:	01 April 2015
Decision date:	01 April 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Judgment and orders in accordance with consent judgment signed by the legal representatives of the parties
Catchwords:	PROCEDURE – civil – judgments and orders – approval of settlement under s 76 Civil Procedure Act 2005
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Category:	Consequential orders (other than Costs)
Parties:	Alexandra Louise West (by her tutor Sandra West) (plaintiff); Megan Margaret Fewkes (defendant)
Representation:	Counsel: Peter Semler SC together with S. Tzouganatos (Plaintiff) Solicitors: Turner Freeman, Lawyers (Plaintiff) L Moon, Moray & Agnew (Defendant)
File Number(s):	2014/00204099

EX TeMPORE Judgment (REVISED)

1. This is an application for approval of a settlement. The application is made under section 76 of the Civil Procedure Act 2005 (NSW) because the plaintiff, a young woman of twenty years of age, is under a legal disability as a consequence of the very severe injuries she received in a motor car accident on 15 July 2011.

2. She was a rear seat passenger in a car. The driver lost control and collided with a pole which intruded into the vehicle by quite some inches. She suffered a very severe head injury involving skull fractures and a traumatic brain injury. She also suffered fractures of her cervical spine, left scapula and some ribs.

3. Given the severity of her injuries, it could be said that Ms West has made a wonderful recovery although she is still left with very significant disabilities particularly flowing from her traumatic brain injury of a cognate type, a degree of disturbance of her eyesight, and some left sided weakness of her limbs.

4. She had a very bright future according to the material I have read and her hopes for a successful career at a professional level, unfortunately, have been dashed by the accident. The defendant, very properly, admitted liability for the consequences of the accident.

5. I should say that Ms West has been admitted as a lifetime member of the Lifetime Care and Support Scheme, so that her needs for medical treatment in the future, attendant care and other ancillary care will be paid for on an ongoing basis out of the provision made by the regulations established under that legislation.

6. Her claim for damages then is restricted to a claim for non-economic loss and past and future impairment of her earning capacity to the extent to which that may be productive of financial loss. I have had the advantage of reading the joint opinion as to prospects in the case written by Mr Semler QC and Mr Tzouganatos of counsel. I have also had the advantage of reading the medical evidence exchanged between the parties.

7. There is no disagreement about the severity of the injuries and the resulting disabilities. There seems to be a deal of hopeful expectation that the plaintiff will be able to find some useful work even if only on a part time basis. As I say, that might be a hopeful expectation but having regard to the issues, the opinion of learned Queens Counsel and my own view of the medical evidence in the case, I am satisfied that the agreement for settlement in these proceedings is such that I ought to approve it.

8. (Judgment and orders in accordance with consent judgment signed by the legal representatives of the parties.)

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Decision last updated: 07 April 2015