This matter has been listed before me today to seek the Court's approval of a proposed settlement of the proceedings brought on behalf of the plaintiff, who is a legally incapacitated person by virtue of her minority. I will, without disrespect, refer to her by her first given name of Scarlett. Scarlett was only four years old at the date of the accident the subject of these proceedings. She is now nine years of age.
The accident said to give rise to her cause of action occurred on 4 November 2017 when in the company of her mother and other members of her family she attended the New South Wales Country Show Jumping Championship held at the Equestrian Centre, Charles Sturt University at Wagga Wagga. After entering the premises, and while standing beside a roadway in an area designated for the parking of horse floats and the like, a horse ridden by an experienced equestrian was ridden in close proximity to where Scarlett and her mother were standing. Something occurred to "spook" the horse, as it is sometimes put, and it reversed at speed in the direction of the family, who were standing about 10 metres from where the horse commenced its movement colliding with Scarlett and falling on her.
Scarlett suffered severe personal injury consisting of a complex fracture of the base of her skull, which has given rise to not insignificant sequelae. The nature and extent of her original injury and of the disabilities consequent thereon are matters which are the subject of some dispute. Having said that the only material I have seen from the defendants in relation to the medical questions is the neuropsychological report of Mr Cirpiani, to which I will return.
The proposed settlement is in the sum of $XXXXXX plus costs, which have been agreed in the sum of $XXXXXX. From the settlement moneys deductions are required to be made in respect of a charge under the Health and Other Services (Compensation) Care Charges Act 1995 (Cth) and a refund to Medibank, which I take to be the family's private health insurer. The net amount of the settlement is just a little over $XXXXXX.
It is my task, for the purpose of exercising the power conferred on the Court by the provisions of s 76 of the Civil Procedure Act 2005 (NSW), to consider the material put before me by the parties and to make an assessment whether in my judgment the proposed settlement is in the best interests of the plaintiff. For that purpose, the parties have put before me detailed evidence both as to liability and damages. I have received an affidavit from Scarlett's father, Mr Anthony Robinson, sworn on 10 November 2022. I have also been favoured with an affidavit from the solicitor from the defendants, Mr Michael Stein, sworn 22 November 2022, detailing the issues as to liability as he sees them from the viewpoint of each of the four defendants he represents.
In accordance with the usual practice, the confidential advice of Mr Kelvin Andrews of counsel has been tendered as Exhibit A. Due to illness, Mr Andrews has not appeared today, but Scarlett has been ably represented by Mr Carrigan of counsel and her solicitor, Mr O'Hare, who is also present in court.
It is fair to say, as Mr Carrigan said to me, that the settlement does not have Mr Andrews' imprimatur. Mr Andrews is well-known to the Court. He is a very experienced senior practitioner in the personal injuries field, specialising mainly in plaintiff's work. His opinion is entitled to considerable weight. The defendant is represented by an equally experienced counsel in the field, Mr Gambi, who is likewise well known to the Court. Mr Gambi has put to me matters relevant to the question of liability as encapsulated in Mr Stein's affidavit.
Looking at the matter for myself I have closely read and considered the competing expert reports of Dr MacLean and Ms Bailey on liability questions. I have formed the impression that while: first, there is no certainty of result in litigation; secondly, there are live issues to be determined at the hearing of the matter; and thirdly, allowing for the summary manner in which an impression is to be formed on the basis of limited materials within a limited time, the plaintiff has the better of the argument on liability. Having said that my opinion of course will count for naught if I disapprove of the settlement and the matter proceeds to trial before another judge.
While speaking of liability, I should also say that there is an outstanding notice of motion brought by the defendants to join the plaintiff's mother as a cross-defendant in the proceedings. Now that is not an entirely unprecedented procedure, but it is not often seen. There are questions about whether a parent qua parent owes actionable duties to his or her child. I need not further expand those matters. I accept that at a practicable level the threat of those proceedings hanging over the family is no doubt a worry for them and a possible source of considerable stress. In the short exposition of the facts that I have already given I have failed to mention that the precise circumstances of the accident are somewhat in dispute as is apparent from the averments contained in the proposed cross-claim to join Mrs Robinson. Her joinder is opposed by the plaintiff for reasons addressed by Mr Andrews, but it would seem to me that the probabilities suggest that if the settlement is disapproved that motion will proceed and has prospects of succeeding. I say nothing about the potential liability of Mrs Robinson after trial. Whereas I accept that this is, as I have said, a possible source of stress within the family, my focus must be on the best interests of Scarlett in terms of the litigation and its prospects of success. That will be my focus in this judgment.
Mr Andrews has conventionally set out his assessment of the likely result. I accept that it is implicit that the outcome of the damages aspect of a case is as equally uncertain as the liability issues, at least in absolute terms. However, there is no doubt that the injury Scarlett received was a very serious one and at a very young age. She is only nine now, as I have said. It is beyond dispute that she has a very severe disability in terms of, effectively, total deafness in her left ear. This will be a permanent disability. Notwithstanding the availability of curative apparatus, like hearing aids and possibly cochlear implants, which has been referred to in the medical evidence, that disability will stay with her and will interfere with her normal enjoyment of life for the whole of her life. It also represents a significant loss of the amenity of life, and it will preclude her from certain occupations. This latter matter is always an important factor to be considered when one is assessing damages for an untried child. These matters are significant.
There is a real question about whether Scarlett has suffered a traumatic brain injury and medical opinion seems somewhat divided in relation to that. I have given considerable weight to the observations of Mr Robinson in regard to Scarlett's development, especially in comparison to the observations he has made in relation to her twin. Having said that, my impression of the medical evidence is that it is somewhat early to tell whether as she further matures Scarlett will evince manifestations of a traumatic brain injury in terms of neurocognitive issues. So far as that is concerned, I have had significant regard to the opinion of Dr Ken MacLean, a paediatrician, who has diagnosed what he describes as a "complicated moderate traumatic brain injury". That opinion gains strength from the opinion of Mr Dino Cirpiani, a well-known neuropsychologist, whose report obtained by the defendant has been served and tendered before me.
Mr Cirpiani's report is the only neuropsychological opinion in the case. His opinion is that the clinical presentation and the history he received from Scarlett's parents together with his neuropsychological testing is consistent with the conclusion that Scarlett has sustained a moderate traumatic brain injury from which she has made a good cognitive recovery. Her intellectual, memory and academic abilities are mostly in the high average range. But Mr Cirpiani qualifies that positive expression of opinion in subsequent paragraphs. He notes that there are more obvious behavioural and emotional changes and that it is likely that Scarlett will require ongoing tuition in primary and high school with accommodation in high school. The accommodation he refers to is the need for extra time in examinations and for completion of major assignments.
In part the question about whether Scarlett has suffered a traumatic brain injury is complicated by the consideration that there is a difference of opinion in the medical evidence about the interpretation of the CT scan taken on 5 November 2017, roughly contemporaneously with the accident. There are some views which would suggest that so far as it shows possibly significant radiological signs, they are more consistent with physiological variants than trauma. However, Dr MacLean certainly seems to have formed the opinion that they are consistent with trauma.
I repeat that the advice of counsel honestly expressed may well prove in the event to have been somewhat optimistic. Those are the fortunes of litigation with which all experienced practitioners are familiar on a daily basis. Having said that, the sum proposed is about a third of the amount assessed by Mr Andrews as being realistic in the case. I am not satisfied that the issues on liability, real as they may be, justify such a heavy compromise. That is to say I am not satisfied that viewed objectively, for the reasons I have given, that the settlement is in Scarlett's best interests.
I have not overlooked the strong opinion of Mr Robinson and I have certainly given it anxious consideration. I acknowledge the superior position of a parent, and a conscientious, one in assessing the best interests of his child in many respects. However, my legal obligation is quite different. I can acknowledge that there are benefits to Scarlett and to the whole family, which is not irrelevant, in bringing an early end to these proceedings. I repeat, she is only nine years of age. On the medical evidence I have read the prognosis is uncertain and I am not affirmatively satisfied that the proposed settlement is in her best interests.
My orders are:
1. In accordance with the terms of s 76 Civil Procedure Act 2005 (NSW) I disapprove of the proposed settlement.
2. Proposed consent orders may be returned to the parties.
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Decision last updated: 24 November 2022