Clement as next friend of Clement v Basset [1987] NTSC 16; 46 NTR 36 (24 April 1987)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Kearney J.(1) CWDS Child - Infant plaintiff - Approval of proposed compromise - Expense of obtaining Counsel's opinion may not be warranted if sum is small. Damages - Infant plaintiff - Approval of proposed compromise - Function of Court - Question to be addressed to determine whether compromise proposed is beneficial to the plaintiff - Factors to be taken into account. Statutes etc: Practice Direction No.2 of 1985 Supreme Court Act, s.84 Cases referred to: Elliott v. Diener (1978) 21 ACTR 21 Karvelas v. Chikirow (1976) 11 ACTR 22 HRNG DARWIN #DATE 24:4:1987 Counsel for applicant: G. Schneider Solicitors for applicant: Waters James and O'Neil Counsel for respondent: J. Neill Solicitors for respondent: Ward Keller ORDER Compromise approved. JUDGE1 I rule today on an application to approve a compromise proposed by the parties to this action whereby the infant plaintiff would recover judgment against the defendant in the sum of $4,000 together with costs on the Local Court scale. 2. Practice Direction No. 2 of 1985 governs the procedure on applications such as this; the court must be satisfied "by evidence that the proposed compromise is, in all the circumstances of the case, a proper one, and reasonably in the interest" of the infant plaintiff. 3. The next friend of the plaintiff deposes that, having taken legal advice, she considers that "it is a satisfactory compromise and in the best interests of (the infant plaintiff)." In terms of Practice Direction No. 2 of 1985, I am satisfied that the next friend has fully considered the proposed compromise and is satisfied that it is for the benefit of the infant plaintiff. 4. The plaintiff's solicitor deposes that he considers the proposed compromise to be satisfactory and in the best interests of the plaintiff. He annexes to his affidavit an "advice on quantum" which he prepared, presumably for the next friend, for the purpose of advising on the suitability of the proposed compromise. It analyses the plaintiff's case and led the solicitor to conclude that the proposed compromise should be accepted as representing "an adequate and proper figure upon which to compromise this claim." In the course of that advice the solicitor took account of medical reports on the plaintiff prepared by an orthopaedic surgeon; these reports are annexed to his affidavit. 5. Practice Direction No. 2 of 1985 states that the opinion of the plaintiff's solicitor favouring a compromise - "... should be supported by sufficient facts and other information as to the circumstances giving rise to the plaintiff's claim, as well as by ... an opinion of counsel, if one is available, as will enable the court to reach a proper conclusion on the application . ..". In this case no opinion of counsel is annexed; in all other respects the requirements of the Practice Direction have been met. 6. It is the settled practice in many courts to require an opinion by counsel in addition to the infant's solicitor's affidavit. In some courts the opinion of counsel is required only when the sum involved is large; that is apparently the practice in the Australian Capital Territory - see Karvelas v. Chikirow at 23. I consider, with respect, that it is a sound practice and one which Practice Direction No. 2 of 1985 contemplates as applying in this jurisdiction. I think that this is a case where the sum involved on any view cannot be large, and the expense of counsel's opinion is not warranted. 7. The court's function on this application is to determine whether or not the proposed compromise will in fact be beneficial to the infant plaintiff. In making that determination the court necessarily relies heavily on the infant's advisers. 8. In the Australian Capital Territory it has been held that the crucial question for the plaintiff's solicitor is whether the prospect of getting a greater sum by rejecting the defendant's present offer is good enough to outweigh significantly the risk of not getting any more; see Elliott v. Diener At p 22. Blackburn C.J. said:- "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 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." However that may be, in this jurisdiction the test of benefit is whether the compromise is proper, and reasonably in the interests of the plaintiff. I consider that the plaintiff's solicitor has addressed the question which requires to be addressed. Various factors are to be weighed in coming to that decision, including those mentioned by Blackburn J. and the award of interest under s.84 of the Supreme Court Act. 9. I have considered the facts, the medical opinion, the solicitor's views, and reviewed such comparative awards as are relevant and taken into account the factors earlier referred to. I consider that in all the circumstances the proposed compromise is proper, and reasonably in the interests of the plaintiff. Accordingly, the proposed compromise is approved; the order of the Court will be in terms of the draft Order placed upon the file and initialled by me.