This is an application by the plaintiff, Michael Anthony Gojak who proceeds by his tutor, Samantha Gojak, for approval of the settlement of his claim against the Transport Accident Commission pursuant to section 76 of the Civil Procedure Act 2005 (NSW).
The plaintiff is currently 12.
As set out in a statement of claim filed on 10 October 2018, he alleges that on 26 November 2015 he sustained injuries when struck by the hydraulic lift mechanism of a truck which was at the time being operated by his brother, who was himself at the time only seven.
The plaintiff pursues proceedings against the Transport Accident Commission on the basis that the accident was a transport accident within the meaning of s 35 of the Transport Accident Act 1986 (Vic).
The plaintiff today is represented by Mr Alan Lakeman of counsel who has provided a confidential advice to the Court.
Mr Lakeman has been involved in the matter on a long-term basis. The defendant is represented by Mr Mallos.
The defendant neither opposes nor consents, leaving it to the Court to determine whether the settlement should be approved.
The plaintiff is a person who remains under a legal incapacity, as the term is understood within the meaning of the Civil Procedure Act, having regard to his age. As such, the proposed settlement of the proceedings must be approved by the Court.
The Court's function on such an application for approval is protective. In Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336, Hammerschlag J observed, at [29]:
"The principle is that for the Court to grant approval for a compromise to be entered into by the disable person it must form the view that it is beneficial to his or her interests. The compromise should be assented to by the tutor and there should be opinions from his or her legal advisers that they consider it to be so: Re Birchall. The Court will consider for itself whether the compromise will be beneficial to the disable person: Somerset v Ley [1964] 1 WLR 640; reported sub nom Re Ley's Trusts [1964] 2 All ER 326."
As identified by his Honour the Court must form the view that the settlement is in some way beneficial or in the interests of the plaintiff. That necessarily involves the Court undertaking the process of reviewing any issues on liability, forming a view as to the potential damages that the plaintiff might receive if successful, considering any other factors or issues which might suggest that settlement at the time is appropriate and ultimately coming to a view as to whether it is in the interests of the plaintiff that the matter is settled at the proposed settlement sum at this time.
I have had regard to the confidential advice of Mr Lakeman and considered what issues might arise on liability. Suffice to say that the matter might give rise to some issues, particularly as the person who is said to have operated the controls was the plaintiff's younger brother.
There is no doubt that the accident occurred in the manner alleged, but it is possible that there may be some legal complexities on any hearing.
As a result of the accident, the plaintiff sustained a commuted fracture of the right tibia and fibular as well as lacerations to the right lower leg. He suffered a right vascular compromise as well as shock. He received extensive treatment for the injury which was severe. He was originally admitted to the Mona Vale Hospital and then transferred to the Westmead Children's Hospital. He underwent operative treatment. He suffered from significant pain and discomfort and restriction of movement for a considerable period.
For the purposes of his case, the plaintiff was examined by Dr John Davis, an occupational medicine specialist. Dr Davis noted some ongoing physical complaints arising from the original crash injury. He referred to the developing keloiding of the graft donor site. That issue has been further considered by Dr Harvey. He referred to the risk of development of osteoarthritic changes in the ankle at some time in the future but he could not be specific as to when any treatment might be required.
The plaintiff was also examined for the purposes of the case by Associate Professor Leon Kleinman on behalf the defendant on 9 March 2019.
Dr Kleinman considered that the plaintiff had a good functional outcome from the fracture of his leg but that he has been left with severe scarring. He did not believe that the plaintiff would develop a leg-length discrepancy as it is now three and a half years since the accident.
Dr Delfino Di Mascio, a vascular surgeon, suggested in his report of 25 March 2019 that when he last reviewed the plaintiff he suffered from no disability as result of his alteration in vascular supply.
His treating paediatric surgeon, Dr John Harvey, says in a report dated 11 June 2019 that in terms of his scarring there will be ongoing improvement with the passage of time without further active intervention. As noted by Dr Harvey and as shown in the photograph, the plaintiff does have some scarring and underwent a skin graft.
There is also evidence of a psychological response to the accident. There is a report from Nicole Matheson dated 2 August 2018 and a report from a registered psychologist, Dr Rachel Upperton, dated 2 September 2019.
The plaintiff suffers from autism and has a mild intellectual disability.
However, Dr Upperton noted that at the time of assessment he is a positive and happy 12-year-old boy with few concerns or responsibilities. He has good support from his family and has recovered from his injury well. He may develop self-consciousness or self-esteem issues regarding his scar and reduced abilities to participate in his physical activities.
On a review of all of the medical evidence, it does seem that the plaintiff has generally resumed his activities and resumed his life in the same way as before the accident. However, the accident did produce a significant injury and he is left with scarring.
As perhaps is customary in these matters there is some difference between the medico-legal practitioners as to the extent to which the plaintiff has recovered from his physical disabilities.
However, having regard to the confidential advice of Mr Lakeman and the matters contained therein, the medical evidence which has been put before the Court today, as well as the affidavit of the plaintiff's tutor, Samantha Gojak, I am satisfied that the settlement is in the interests of the plaintiff and thus that it should be approved.
I am in receipt of a consent judgment. I will make the orders sought in the consent judgment, but during oral submissions today Mr Lakeman raised a number of other points which require consideration.
As set out in her affidavit, Ms Gojak requests that the sum of $16,811.20 be released to her husband and her, representing an amount that is calculated in accordance with annexures to the affidavit as being the value of the gratuitous care which was provided to the plaintiff by them as his parents. Of course, I do not doubt that such care was provided and the claim may have been available in respect of such gratuitous care. However, the claim for gratuitous care is that of the plaintiff. The damages that are recovered in an action such as this are those of the plaintiff.
It has long been established that a plaintiff is entitled to claim the cost of care gratuitously provided by persons such as his parents, as regulated by s 15 of the Civil Liability Act 2002 (NSW), but I am not aware of any case or principle which would support a proposition that the amount that might have been allowed for gratuitous care is payable to the people who provided the gratuitous care rather than to the plaintiff.
I appreciate that Mrs Gojak was forced to cease work to look after the plaintiff and appreciate, as submitted by Mr Lakeman, the difficult financial circumstances which may have arisen because of the plaintiff's injury, but I am not persuaded that I should order that such a sum be deducted from the plaintiff's damages and paid directly to Mr and Mrs Gojak. As raised by Mr Lakeman, that does not mean that the matter cannot be taken up with the NSW Trustee and Guardian, but that is a matter for the NSW Trustee and Guardian, having regard to any information that is provided to it and any matter which Mr and Mrs Gojak may wish to put before it in support of what they seek.
Mrs Gojak also seeks a deduction in respect of out-of-pocket expenses actually incurred by her and her husband in the sum of $1,808.95. That is a different matter and she falls into the same category as other persons who might have incurred expenses and seek reimbursement. In the circumstances I would be prepared to order the release of that amount directly to Mrs Gojak.
[2]
Orders
In the circumstances I make the following orders in accordance with the consent judgment proposed, pursuant to section 76 of the Civil Procedure Act 2005 (NSW):
1. I approve the agreement between the parties set out in the consent order which I will seal and place with the papers on the terms set out in the consent orders.
2. There will be judgment for the plaintiff in the sum set out in para 2 of the consent judgment. Such sum will be in addition to the funds management fees and costs agreed to as referred to in para 2 of the consent judgment.
3. I make Order 3 as set out in the consent orders. I note the parties' agreement in paras 4, 5, 7, and 9. I make the orders proposed in para 6 of the consent orders.
4. I also order that the amount of $1,808.95 be deducted from the settlement sum and paid directly to Samantha Gojak in reimbursement of the medical expenses which she has incurred.
5. The advice of counsel for the plaintiff will remain on the file in the envelope marked Confidential and access should not be granted to it without leave of the judge of the court and without prior notice to the plaintiff so as to allow him an opportunity to be heard in respect of the application for access.
[3]
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Decision last updated: 06 December 2019