This matter comes before me today by way of an application for approval of the settlement pursuant to s 76 of the Civil Procedure Act 2005 (NSW) ("CPA"). Mr Hickey of counsel appears for the plaintiff and Mr Adrian Williams of counsel appears on behalf of the defendant.
As the plaintiff is a person under legal incapacity, any settlement must be approved by the Court under s 76(3) of the CPA. The Court's function on any such application is essentially protective. I must review all of the evidence presented and be satisfied that the proposed settlement is for the plaintiff's benefit (see Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 and Williams v Hunter New England Local Health District [2022] NSWSC 1042).
Whether or not any settlement is for the benefit of a person under legal incapacity may depend on whether there are sufficient prospects of obtaining a better judgment, such as to outweigh the benefit arising from any settlement. That principle is particularly important in this matter because the effect of the settlement is that there would be judgment for the defendant, with a small contribution made towards costs and no payment made to the plaintiff.
As set out in the amended statement of claim filed on 14 September 2021, the plaintiff alleges that he sustained severe injuries as a result of an attack upon him whilst in prison on 8 September 2018. He says that he was attacked by a number of persons in custody and was stabbed multiple times in the face, neck, head and upper body. He also says that he was punched many times. As a result of this assault, he suffered severe injuries, including an occlusion to the right internal carotid artery. He appears to have suffered a cerebral infarction. He is left with severe, long-term disabilities, including significant loss of control of his left hand and arm, difficulty walking for lengthy periods, the need to use a wheelchair and significant cognitive compromise. There is no dispute that his disabilities are severe and that he will need long-term care and assistance.
As set out in the amended statement of claim, the plaintiff sues the defendant, the State of New South Wales, pursuant to s 5 of the Crown Proceedings Act 1988 (NSW). He says that the assault upon him was caused by the negligence of the defendant because the defendant, which was responsible for the operation of the Wellington Correctional Centre, failed to undertake a number of (said to be) reasonable measures which the plaintiff alleges would have reduced the risk of the assault occurring.
The plaintiff proceeds through his tutor, Tania Kluss. The plaintiff relies on an affidavit of Ms Kluss dated 22 June 2023, as well as an affidavit of his solicitor Andrew McQuilkin dated 27 June 2023. Annexed to the affidavit of Mr McQuilkin are the reports of various doctors, being Dr Michael Fearnside, Dr Michael Davies and Dr Andrew Porteous. These doctors are well-known to the Court. They speak of the severity of the plaintiff's injuries and disabilities.
Annexed to Mr McQuilkin's affidavit is also a preliminary notification from the National Disability Insurance Agency ("NDIA"). In paragraph 20 of his affidavit, Mr McQuilkin refers to his conversation with an officer of the NDIA, who told Mr McQuilkin that the settlement would not impact the plaintiff's NDIA entitlements.
I am also in receipt of a Confidential Advice from counsel for the plaintiff, Mr Hickey. The settlement terms are that there be judgment for the defendant, with the defendant to pay the sum of $30,000 to the plaintiff on account of costs.
The real issue on this application is whether I am satisfied that the prospects of the plaintiff succeeding are such that a settlement of this type should be approved. In effect, it is a settlement that results in the plaintiff receiving nothing with some contribution towards his costs, which will presumably cover disbursements and a small amount of legal fees.
As set out in the Confidential Advice of Mr Hickey and the affidavit of the plaintiff's solicitor, these proceedings were commenced on the plaintiff's instructions. At the time when they were commenced, there were difficulties obtaining all of the relevant information from the defendant, including access to CCTV footage. After some time, and no doubt through the efforts of the solicitor for the plaintiff, that footage and other relevant information was obtained. It became apparent or at least reasonably arguable that, having regard to the CCTV footage, there was a possibility that the factual basis for the plaintiff's claim may not be correct. That is not a criticism of the plaintiff, as he suffered from such severe injuries that he does not remember what occurred.
According to the solicitor for the plaintiff and Mr Hickey, on their review of the evidence, there may have been an earlier altercation or altercations involving the plaintiff. Further, these incidences may have been instigated by the plaintiff. There is some evidence of a complaint from another inmate as to the plaintiff's conduct prior to this particular event. As such, s 54 of the Civil Liability Act 2002 (NSW) ("Civil Liability Act") may apply. Section 54 of the Civil Liability Act provides a defence to a defendant in circumstances whereby the injury to a person (such as the plaintiff) occurred at the time of, or following, conduct of the plaintiff that, on the balance of probabilities, constituted a serious offence.
The defendant pleads s 54 in its defence. Presumably, the defendant will be asserting that the attack on the plaintiff followed an attack by the plaintiff on another person or persons.
It must be said that cases pursued by persons who suffered injuries whilst in prison are always difficult for the injured prisoner. As appears to be the case in this matter, assaults such as these may follow other events or acts of violence. Plainly, s 54 was introduced into the Civil Liability Act for the very purpose of precluding persons such as the plaintiff from recovering damages.
Each case must depend on its own facts. Having regard to that which has emerged subsequent to the commencement of the proceedings, including the CCTV footage, and the matters raised in the Confidential Advice of Mr Hickey, I am satisfied that the plaintiff is not likely to succeed in this case. It is not merely a case in which differing arguments might arise. The defendant appears to have a strong case.
In the circumstances, it is plainly in the interests of the plaintiff that these proceedings be discontinued at the earliest possible time. I say this because the plaintiff is receiving benefits under the National Disability Insurance Scheme ("NDIS") and it would be in his interest to retain these.
In the circumstances, as this is a case in which the plaintiff is unlikely to succeed, I accept that the settlement is for the benefit of the plaintiff and I approve the settlement in accordance with s 76(3) of the CPA. In all the circumstances, I make the following orders:
1. The Court approves the settlement pursuant to s 76 of the Civil Procedure Act 2005 (NSW) in accordance with the terms of the Consent Judgment dated 17 July 2023 and signed by the legal representatives of the parties.
2. Judgment for the defendant.
3. The defendant is to pay $30,000 to the plaintiff's solicitor in payment of the plaintiff's legal costs and disbursements within 28 days of receipt of a filed copy of this Judgment, save that 10% of this sum will be paid to Medicare as an Advance Payment.
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Amendments
23 August 2023 - Judgment certification stamp removed.
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Decision last updated: 23 August 2023