Norman Mark Bloomfield bht Dianne Hardy v State of New South Wales

Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76, 77

Cases Cited: Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840
Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336
Wigmans v AMP Limited (2021) 270 CLR 623; [2021] HCA 7

Category: Principal judgment

Parties: Norman Mark Bloomfield by his tutor Dianne Hardy (Plaintiff)
State of New South Wales (First Defendant)
Westhaven Limited (Second Defendant)

Representation: Counsel:
P Karp (solicitor advocate) / J Herbert (solicitor advocate) (Plaintiff)
R Cvetkovska (solicitor advocate) (First Defendant)
G Tanner (solicitor advocate) (Second Defendant)
Solicitors:
Karp O’Neill Lawyers (Plaintiff)
Crown Solicitor’s Office (First Defendant)
Herbert Smith Freehills Kramer (Second Defendant)

File Number(s): 2024/00238429

Judgment- ex tempore (Revised)

1. By a statement of claim filed on 28 June 2024, the plaintiff by his tutor claims damages from the first and second defendant arising out of psychiatric injury, loss and damage suffered by the plaintiff as a result of child abuse for which the first defendant is claimed to be liable in negligence and the second defendant is claimed to be liable in negligence and vicariously liable for the negligence of its employees having regard, inter alia, to Pt 1B of the Civil Liability Act 2002 (NSW) and the Crown Proceedings Act 1988 (NSW) where relevant.

2. In 1971 when the plaintiff was about 7 years old he was removed from parental care and was committed to the care of the Minister, being made a ward of the State as his parents were unable to care for him. He was placed by the Minister in a facility operated by the second defendant in Dubbo, New South Wales. The plaintiff’s case is that from about February 1971 until about 1980, when he was about 17 years old, he was physically, verbally and psychologically abused by various staff members at that facility.

3. The plaintiff’s claim is that, as a result of the negligence of the defendants and those for whom the second defendant was vicariously liable which led to him being abused, he sustained psychiatric injuries which resulted in his suffering post traumatic stress disorder (PTSD) with ongoing PTSD symptoms, anxiety and what was described as nervous shock as well as other psychiatric and psychological sequalae. It is claimed that, as a result, the plaintiff suffers numerous disabilities and that he has suffered general damages as well as past economic loss and a diminution in earning capacity. The plaintiff has also claimed aggravated damages.

4. The plaintiff is currently 64 years of age.

5. The evidence included the affidavit of his solicitor Ms Judith Herbert sworn 15 August 2025 which had annexed to it a number of reports. They included the report of Mr Neil Woodger, forensic psychologist, who interviewed the plaintiff in 2023. In his report dated 31 October 2023, he gives evidence of the diagnoses that I have referred to. He also records in his report the plaintiff’s intellectual handicap, the assistance he requires, his ability to provide information about his experience of prolonged abuse and what Mr Woodger assessed as a difficulty comprehending many issues and questions.

6. It was said that the plaintiff's presentation reflected his intellectual status, and he also reported on the results of IQ testing and the plaintiff's reading ability. Mr Woodger's report did include a statement that, “[i]t was reported that he was unable to respond at any level to attempts to remediate his illiteracy.’ In addition it then continued, “[h]e cannot tell the time, nor manage his finances beyond simple shopping needs. He can manage some domestic chores including mowing the lawn and cleaning.”

7. As a result of opinions in relation to the plaintiff’s ability to conduct litigation, proceedings were commenced on the plaintiff’s behalf by his tutor, who has known the plaintiff all his life and whose husband is a relative of the plaintiff.

8. In addition to Mr Woodger’s evidence, the evidence also included a subsequently obtained report of Dr Alice Neale, consultant psychiatrist, dated 27 March 2025. Dr Neale interviewed the plaintiff by video link on 24 March 2025 and had regard to relevant medical and related records. In substance, Dr Neale’s diagnoses were consistent with those of Mr Woodger. However, in relation to the present proceedings and management of his affairs, Dr Neale’s report included that the plaintiff said he first commenced the current litigation process after he told his cousin, Diane, that is his tutor, about the past alleged abuse. He denied feeling pressured to commence or continue the process and he said he felt like he was doing it for his brother and himself. He reflected that he had been through a lot.

9. He identified that his lawyer and his cousin had explained things to him, and he described feeling comfortable discussing his concerns with his cousin and having her advocate on his behalf. It was identified that he needed simple explanations to ensure his understanding and it was also noted that he had denied any previous significant debt. It was identified that he managed his own money and had no difficulty with that. Dr Neale also said that the plaintiff presented with symptoms consistent with PTSD in remission, and cognitive impairment secondary to measles encephalopathy.

10. Dr Neale also gave more detailed consideration to the plaintiff's educational trajectory and in her view it was primarily impacted by his intellectual impairment. This, she said, had given him limited work capacity as a result. She did not consider that his mental health symptoms had in the past negatively impacted his capacity to engage in employment. She did not recommend that additional treatment should be commenced and while she understood that the plaintiff continued to experience ruminations about past traumas, she considered that treatment was unlikely to have any significant impact on this cognitive loop.

11. In relation to the proceedings, Dr Neale was of the view that although the plaintiff had an intellectual impairment, capacity was to be assumed and she questioned him at length about his understanding of the current case. She considered, on balance, that the plaintiff had capacity to provide legal instructions, provided he was given simple instructions and explanations and adequate time to double-check his understanding.

12. There was also a further report dated 29 July 2025 obtained from the plaintiff's treating general practitioner, Dr Scott Porter, who said that he understood that the plaintiff looked after his own finances. For example, Dr Porter in his report said the plaintiff pays all his own bills and he has had a gold saver account with the Commonwealth Bank for the last three to four years and he intends to put his settlement into that account.

13. As to the plaintiff’s ability to manage his financial affairs and related matters, I note the evidence of his tutor, Ms Hardy, that she did not say what Mr Woodger recorded in his report. Nonetheless, it does appear that the plaintiff does has difficulties with literacy and has not been responsible for managing finances, other than small day to day expenses, in the past. He is also dependent on others to help him. Furthermore, it was not clear what Dr Neale understood by the plaintiff saying that he managed his own money. Dr Porter’s opinion appears to be based on managing day to day small transactions.

14. In all the circumstances on the material before the Court presently, I do not feel that I can be satisfied on the balance of probabilities that the plaintiff could manage a large sum of money on his own. It might be the case that he can, but the evidence before me does not establish that. I accept that the plaintiff has managed simple shopping needs and similar financial tasks and has a savings account but the difference between the amounts involved in that and the amount of the settlement is, in my view, significant.

15. Given all the plaintiff’s circumstances which have been outlined in the reports, as I have said, I cannot be satisfied that it would be in his best interests to have that sum paid directly to him.

16. As a result of an offer made at a mediation on 17 June 2025 an agreement was reached on 18 June 2025 to resolve the matter subject to the Court approving the settlement.

17. The terms of the settlement are set out in a Deed of Settlement dated 4 August 2025 (the Deed) which has been signed on behalf of the parties and provided to the Court. The Deed provided that it would only be binding if the Court approved the consent judgment which was annexure A to the Deed and which the parties have now signed.

18. Ms Herbert states in her affidavit that “[w]e consider the settlement is reasonable” and refers to the range advised by counsel and her firm prior to the mediation. I understood her evidence to include that, in her opinion, the settlement is in the interests of the plaintiff and she had explained to the plaintiff’s tutor the effect of the settlement if it was approved and the fact that the plaintiff would have no further recourse to proceedings to recover any further sums in respect of the present claim if approved. There was an explanation given to the Court that there would be no further solicitor/own client costs sought in respect of the proceedings beyond the amount of costs that was agreed as part of the settlement. Ms Herbert also gave evidence that there would be no likelihood of any significant repayment to Medicare, Centrelink, or any other agency that might usually be relevant.

19. I did note there was no confidential advice from counsel who acted for the plaintiff in relation to the mediation, Mr Christopher Simpson, provided to the Court as usually occurs but there was evidence that his assessment of the range of damages that might be likely to be recovered was one which included the proposed amount of the settlement.

20. Ms Herbert also says that if the plaintiff requires assistance with managing the funds, his nephew Shane Moore is prepared to assist him. In that regard there was also an affidavit from Mr Moore, and an affidavit from his mother, Ms Rennie Moore, who were prepared to be the plaintiff’s attorneys if it was thought appropriate for the money to be paid directly to someone, either the plaintiff, or if the plaintiff needed assistance, the attorneys.

21. Given the state of the evidence, I cannot make a finding as to the plaintiff's ability to manage such a large sum. In those circumstances it is not appropriate to do anything other than to order that the money be paid into Court and then for the issue of the extent of the plaintiff's need for assistance to be determined properly on the evidence, in an application made to the Equity Division.

22. The plaintiff’s tutor, Ms Dianne Hardy, provided an affidavit of 20 August 2025. She explained her relationship with the plaintiff but said that she had no reason to believe that he could not manage his own finances. She explained that she had received advice from counsel, Mr Simpson, at the mediation and she considered it in the plaintiff’s best interests to settle the matter on the basis proposed indicating her understanding that the settlement sum was clear of costs but subject to any repayments to Medicare and Centrelink and that the plaintiff would never be able to make another claim against the defendants in respect of this matter.

23. In regards to the evidence from Mr Moore and Ms Moore. I note there is a power of attorney signed by them, which they offered to do in order to assist the plaintiff. While their willingness to assist is commendable, the state of the evidence, as I have explained, does not allow me to order on a properly informed basis that the money be paid to them rather than to the plaintiff or any other appropriate body.

24. The matter has come before me because s 76(3) of the Civil Procedure Act 2005 (NSW) provides that any compromise or settlement of proceedings commenced by or on behalf of a person under legal incapacity may not proceed except with the approval of the Court. Moreover, s 76(4) empowers the Court either to approve or disapprove such an agreement. In light of the reports of Mr Woodger and Dr Neale and the fact that it was thought appropriate for a tutor to be appointed, I am satisfied that the plaintiff is a person under an incapacity for the purposes of s 76.

25. The Civil Procedure Act itself does not provide any specific guidance as to the considerations that the Court should take into account in carrying out the task of approving or disapproving of the settlement. Nonetheless, it is well established by authorities such as Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 at [29] (Hammerschlag J) (cited with approval by the High Court in Wigmans v AMP Limited (2021) 270 CLR 623; [2021] HCA 7 at [112]) and Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840 at [3] (McCallum J) that:

26. the Court’s function is essentially protective;

27. the settlement should be assented to by the tutor and there should be opinions from the person’s legal advisers that they consider the settlement to be in the interests of the person under legal incapacity; and

28. the Court should scrutinise the settlement for itself and be satisfied that the settlement is beneficial to the interests of the person under legal incapacity.

29. I have already referred to the evidence provided to the Court in support of the application for approval.

30. I note that solicitor own client costs will not be in addition to the costs that would be recoverable under the settlement. I have also taken into account the further evidence that Ms Herbert gave orally concerning the advice to the tutor, and the likelihood of there being no deductions or no substantial deductions that are likely to be made from the settlement sum.

31. I have also taken into account the evidence of the plaintiff’s tutor in her affidavit I have already referred to. Her evidence includes her understanding of the plaintiff’s circumstances and aspects of his case. She said that accepting the legal advice to settle the matter was in the plaintiff’s best interest. She also states that she understands that should the settlement be approved, the plaintiff will not be able to bring any further claim against the defendant in the future in relation to this matter. The tutor also notes that, in relation to deductions, the amount paid to the plaintiff may be reduced if there is any amount to be repaid to Medicare or Centrelink or other body referred to in the form of consent judgment. She also notes the amount the plaintiff would receive if the settlement is approved, clear of legal costs.

32. Taking all of the above considerations into account including the difficulties that may be encountered in relation to liability and the difficulties that may be encountered in relation to causation of loss and damage as well as having regard to the nature of the claim, the plaintiff’s circumstances and the amount and terms of the agreed settlement I am satisfied that what is proposed is prudent and that it would be beneficial to the interests of the plaintiff if the settlement is approved.

33. As to the payment of the settlement sum less any permitted deductions, in my view it should be paid into court in accordance with s 77(2) of the Civil Procedure Act 2005 (NSW). The essential reason for doing so is that the evidence before me does not allow me to be satisfied as to whether or not the plaintiff is capable of managing his financial affairs and the arrangements to be made if he is not.

34. As I have already indicated, an application can then be made in the Protective List of the Equity Division for appropriate orders for payment out of the settlement sum on the basis of such evidence as may be led on that application.

35. Accordingly, the Court orders that:

36. The settlement of these proceedings be and hereby is approved.

37. By consent and without admission of liability, the Court makes orders in accordance with pars 2 and 2(a) which will read, "The judgment sum, less the agreed costs and disbursements, and any permitted deductions is to be paid into Court in accordance with s 72(2) of the Civil Procedure Act 2005 NSW” and 7 with par (b) deleted, of the form of consent order annexed to the deed of settlement.

By consent, the Court notes:

3. the agreement between the parties in paras 3 and 8 of the form of consent orders.
4. The undertaking of the plaintiff in para 4 of the form of consent orders.
5. The acknowledgement, consents and authorisations in paras 5 and 6 of the form of consent orders.

The Court orders:

6. that there be no order as to the costs of today.

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