This is an application to approve a settlement of proceedings under s 76(4) of the Civil Procedure Act 2005 (NSW). The proceedings are brought by the Plaintiff by his tutor, Mharie Hillary Foster who is also his mother.
The Defendant is the State of New South Wales which, at all material times, was responsible for the conduct of public education in New South Wales, including the operation of Burraneer Bay Primary School.
In August 2009, the Plaintiff had just had his tenth birthday and was a student at the School when an incident occurred. The Plaintiff was confronted by an adult female who was a relative of one of his schoolmates. I will refer to the relative as the Grandmother. There is no dispute that the Grandmother raised her voice at the Plaintiff. There is an issue on the pleadings about whether the Grandmother also shook him.
There is a further issue on the pleadings about the Defendant's knowledge, actual or constructive, of the Grandmother's propensity to enter the school grounds and assault or abuse people.
There will obviously be other factual details about the incident to be determined at trial.
The great tragedy in this case appears to be that the Plaintiff, at the time of the incident, suffered from a number of health conditions, including Asperger's syndrome and anxiety.
In the years since the incident, the Plaintiff's health has declined significantly.
In support of the application for approval of the settlement, the Plaintiff has read the affidavit of Gregory Miller dated 5 July 2024, the solicitor for the Plaintiff. There are five medical reports attached to the affidavit which I will briefly describe.
There is a report dated 20 October 2015 by Dr Patricia Jungfer who is a consultant psychiatrist. Dr Jungfer saw the Plaintiff when he was 16 years old. Amongst other things, her report records that the Plaintiff has a major depressive illness described as catatonia, the functional impairment from his autistic spectrum disorder is more severe, he is severely disabled from obsessive-compulsive disorder (OCD) and he has required intensive psychiatric care and treatment from which he has suffered significant side effect0s. His quality of life is highly impoverished, his prognosis (in 2015) is "guarded" and his employment opportunities are severely restricted.
There is a report dated 23 November 2022 by Anup Kumar Mangipudi, occupational therapist. Mr Mangipudi conducted an "Activities of Daily Living; Domestic Care Assistance Assessment" when the Plaintiff was 23 years old. Amongst other things, Mr Mangipudi's report records that the Plaintiff has very limited communication and that he was unable to complete Year 12 at school. He was only able to complete Years 10 and 11 by distance learning. He requires supervision for self-care, he cannot drive or use public transport and has a generally reduced capacity to undertake daily living tasks.
There is a report dated 24 November 2022 by Mark Ravagnani, psychologist. The purpose of Mr Ravagnani's report was to assess the impact of the Plaintiff's injury on his vocational capacity and labour market access. Amongst other things, the report records that an attempt was made in 2018 to transition the Plaintiff to a work programme but it was unsuccessful because he was unable to attend without his mother being present due to his anxiety and tendency to be overwhelmed by new people and experiences. The Plaintiff experiences debilitating and distressing symptoms associated with his OCD and induced psychosis, which have severely impacted aspects of his activities of daily living and vocational capacity. Mr Ravagnani's opinion is that it is unlikely the Plaintiff will be able to secure and maintain employment on the open labour market either now or in the foreseeable future.
There is a report dated 28 February 2018 by Dr Antony Milch, psychiatrist. Amongst other things, Dr Milch's report records that the Plaintiff has experienced symptoms consistent with a major depressive disorder which has been previously diagnosed as catatonia, that he has developed OCD and a behavioural gaming addiction in the context of his social withdrawal and will be unable to find employment on the open market.
Lastly, there is a report dated 15 July 2020 from Dr Lisa Brown, psychiatrist. Dr Brown's report largely focuses on the question of causation of the health conditions referred to in other reports. Dr Brown's report makes clear that an important issue at trial will be whether the Plaintiff's more recent medical condition was caused by the 2009 incident at school or whether the problem may have arisen in any event.
In these circumstances, in 2018 the Plaintiff commenced the current proceedings against the Defendant. He seeks compensation for, it is alleged, breach of the Defendant's non-delegable duty of care to take precautions against a risk of harm which was foreseeable, not insignificant and which in the circumstances a reasonable defendant in the Defendant's position would have taken. The Defendant denies liability. In addition to the factual controversies referred to above and medical issues apparent from the reports, the Defendant relies upon ss 31 and 32 of the Civil Liability Act 2002 (NSW), together with s 42 which governs the circumstances in which a public authority owes a duty of care or has breached a duty of care.
The case is in an advanced state of preparation. The Plaintiff has served his lay evidence and all the medical evidence has been served. The case is ready for the allocation of a hearing date with an estimate of five days.
One matter of particular note is that the Plaintiff is not himself able to give evidence. In the ordinary course, a plaintiff such as the Plaintiff could be expected to give evidence about the incident in 2009 and his subsequent medical condition.
Negotiations between the parties have resulted in an agreement to settle the proceedings on terms which include a judgment for the Plaintiff in a specified amount plus costs. Certain deductions will have to be made from that sum in order to make statutory repayments after which the Plaintiff will receive approximately an amount which his solicitor has estimated and stated in his affidavit.
On the application for approval of the settlement, the Court has been provided with two confidential Memorandums of Advice prepared by counsel for the Plaintiff. Counsel is a barrister of 10 years' experience and has particular expertise in relation to personal injury claims. The Memorandums of Advice contain a detailed analysis of the issues in the case, both at an evidential and a legal level. The Memorandums address both prospects and quantum. In counsel's view, the proposed settlement is in the best interests of the Plaintiff for the reasons given in the Memorandums of Advice.
In his affidavit, the Plaintiff's solicitor has expressed the view that the proposed settlement is fair and reasonable. In the context of the solicitor acting for the Plaintiff and the evidence given by the solicitor about advice given to the Plaintiff's tutor, the solicitor's view is to be understood as his opinion that the proposed settlement is fair and reasonable in the best interests of the Plaintiff.
In further support of the application, reliance is placed upon an affidavit by Ms Foster who, as stated above, is the Plaintiff's tutor and mother. The affidavit contains details of the Plaintiff's current condition. The affidavit reveals that Ms Foster has a clear understanding of the terms of the proposed settlement, including the statutory and other deductions which it contemplates. Ms Foster expresses the view that, after considering all aspects of the matter, the settlement is in the best interests of the Plaintiff.
Having regard to the evidence adduced on the application, I am satisfied that the Plaintiff is a person under a legal incapacity for the purposes of s 76(1) of the Civil Procedure Act 2005. Having regard to the evidence adduced on the application, the two confidential Memorandums of advice, the opinion of counsel and the solicitor for the Plaintiff, and the evidence of Ms Foster, I am satisfied that the court approve the proposed settlement, which is in the best interests of the Plaintiff.
When considering whether or not to approve a proposed settlement under s 76(4), the Court's task is to satisfy itself that the settlement is in the best interests of, in this case, the Plaintiff: Robinson the Riverina Equestrian Association [2022] NSWSC 1613 at [5] (Campbell J).
The principles to be applied when undertaking this task were summarised by the O'Keefe J in Yu Ge by her tutor Tao Ge v River Island Clothing Pty Ltd [2002] NSWSC 28 at [32]. Although addressed to the provisions of an earlier statute, the same principles apply to s 76(4) of the Civil Procedure Act 2005. Justice O'Keefe said:
"32 The following principles apply in relation to the approval of infant settlements in actions for damages:
1. The jurisdiction of the Court under the Damages (Infants and Persons of Unsound Mind) Act 1929 is protective in character.
2. Before approving an infant's settlement the Court must be satisfied that the terms of settlement are proper in the interests of the plaintiff.
3. In some cases, where the trial has proceeded to a sufficient extent, the Court will be able to make its own assessment as to the propriety of the amount of the settlement on the material which has already emerged.
4. In other cases the Court will require evidence to satisfy itself as to the propriety of the amount of the settlement.
5. The Court will often have to rely to a significant extent on the assessment of the parties. Such assessment should be evidenced to the Court by an appropriate affidavit from the solicitor for the plaintiff which reveals to the Court the opinion of counsel, if any, retained in the matter as well as that of the solicitor for the plaintiff. Where counsel for the plaintiff propounds the settlement to the Court a statement from the Bar table by counsel as to the adequacy of the settlement in the circumstances may be sufficient.
6. If there has been a compromise, the basis on which the matter was compromised should be evidenced to the Court. This may involve the defendant revealing to the Court, but not necessarily to the legal advisers of the plaintiff, the nature and quality of the material which supports the need for the plaintiff to compromise.
7. In determining whether the amount or other terms of settlement are proper in the interests of the plaintiff the Court will not substitute its own assessment for that of the parties, provided that the amount or terms agreed is or are within parameters determined by the Court to be appropriate.
8. In exercising the jurisdiction the Court should act cautiously and if in doubt decline to approve the settlement.
9. Where a judge declines to approve a settlement in a non-jury case such judge should not, except in special circumstances, proceed to hear the action."
For the purposes of considering the settlement there will be cases where it is necessary for the Court substantially to rely on the independent approach of both counsel and the solicitor acting in the case: Yu Ge by her tutor Tao Ge v River Island Clothing Pty Ltd at [31]. The Plaintiff's case is such a case. The case is prepared for hearing and the Plaintiff's counsel and solicitor have available to them sufficient information to make a thorough assessment of both prospects and likely outcome. In this regard, it is a case where counsel and the solicitor are in a superior position to the Court.
In those circumstances, I make by consent the orders and notations set out in the document entitled "Consent Judgment" dated 17 July 2024 and signed by the solicitors for the parties, initialled and dated by me and placed with the papers.
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Decision last updated: 19 July 2024