Serone v Crawford; Serone v Crawford; Serone v Crawford; Serone v Crawford

Supreme Court of NSW|2023-08-09|Before: Chen J

JUDGMENT ex tempore

This is an application for approval - and apportionment - of a claim under the Compensation to Relatives Act 1897 (NSW), and approval of three "nervous shock" claims.

Introduction

On 19 February 2019, at around 5:15am, Gregory Serone was riding his motorcycle on Eltham Road, Eltham, NSW. At a point, approximately 20 metres west of the intersection of Gray's Road, Mr Serone collided with a black cow on the roadway - and was tragically killed.
Investigations undertaken by the police ascertained that the cow was owned by the defendant - whose property was adjacent to the roadway. Further investigations found that the fence lines adjacent to the roadway had loose wires and were missing some fence posts.

Background

I have earlier set out the circumstances giving rise to the accident. Although the defendant, by her defence, has contested liability, the objective evidence (together with expert evidence from an agricultural consultant) suggests that the fence was in a poor state of repair, readily explaining the escape of the cow onto the roadway. The solicitor for the plaintiffs, in his affidavit sworn 27 June 2023, approached the resolution of the matter (as did counsel) on the basis that the case on liability was strong, and that the defendant was unlikely to succeed in its defence of contributory negligence: pars 4-5. In my view, based upon the material in the current application, that is a reasonable assessment of the case on liability.
At the time of Mr Serone's death he resided with his wife and children in a three-bedroom house in Casino, NSW. He was employed at Kooyong Pig Abattoir, earning approximately $55,000 per annum and, in addition, he worked 3 hours per night, 3 times per week in a local supermarket as a night filler earning $200 per week.
Mr Serone also cared for, and provided services to, his children and to the plaintiff.
The plaintiff, in May 2021, remarried. The plaintiff, her new partner and her children, live together in their own home.
Gregory, who will turn 18 in September 2023, is currently working, and seeking to obtain an apprenticeship as a diesel mechanic.
Grahame, who will turn 16 in September 2023, is currently in year 10 at school. His intention is to leave school at the end of the year, and obtain an apprenticeship as a carpenter.
Zakary, who will turn 15 in August 2023, is currently attending high school but arrangements are being made for him to commence a TAFE course in the final semester of this current year, in conjunction with his school, in order to pursue a career as a motor mechanic.

Approval: the relevant principles

When the Court is asked to approve a settlement of proceedings commenced by or on behalf of a person under legal incapacity, its function is protective. The ultimate question is whether any compromise entered into is beneficial to the interests of the person and thus in their best interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 at [29] (Hammerschlag J) ('Mills'); Budini v Sunnyfield (No. 3) [2021] FCA 1540 at [10] (Perry J).
It is the Court's responsibility to determine this matter itself, albeit that it will be assisted - but not bound - by the provision of a confidential advice by the person's legal representatives that they consider the settlement to be beneficial to, and in the best interests of, the person: Mills at [29]; Scandolera bhnf Robinson v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 at [27] (Mortimer J) ('Scandolera').
The Court, as part of its assessment, is to consider "the advantages and disadvantages of the litigation continuing not only in terms of whether the applicants might secure a more advantageous award from the Court at trial, but also issues such as the prospects of an appeal and the costs and pressures imposed on [the plaintiff] if the litigation were to continue": Scandolera at [29].
The tutor must also provide their assent to the compromise. That has occurred in this case: see the plaintiff's affidavit sworn 27 June 2023, pars 8 and 63.

The nervous shock claims

In relation to each of these claims, I have considered the advice from counsel, the affidavit from the solicitor for the plaintiffs and, in particular, the evidence from the plaintiff - as to her observations, and assessment, of each of the children. I have also considered, in each case, the report from the psychiatrist (specialising in child, family and adult psychiatry) qualified to provide a report in respect of each of them - Dr Chris Rikard-Bell.
In relation to Gregory: Dr Rikard-Bell diagnosed him as suffering from a persistent complex bereavement disorder and recommended a period of counselling to assist. He noted, however, that this injury did not appear to him to be having any impact on Gregory's academic pursuits, his capacity to work or to create any particular need for services.
In relation to Grahame: he has some developmental disorders, a blood disorder (thrombasthenia - a form of hereditary platelet disorder). Dr Rikard-Bell diagnosed him as suffering from persistent complex bereavement disorder and recommended a period of counselling to assist. Dr Rikard-Bell considered that the psychological condition "does not appear to have had a major impact on his school pursuits", and otherwise had not created any particular need for care and/or supervision.
In relation to Zakary: Dr Rikard-Bell diagnosed him as suffering from a persistent complex bereavement disorder and recommended a period of counselling to assist. He considered, however, that the psychological condition did not have a major impact on his school functioning, and did not create an increased need for care and/or supervision.
In relation to each of the children, the plaintiff's evidence is that she has discussed with each of them the possibility of undertaking counselling, but each have indicated that they do not wish to undertake it and, further, her observation was that none of the children appeared to demonstrate any need for counselling. The plaintiff has also indicated that each of the children have expressed to her their desire not to participate in any court proceedings. Her evidence was that each of the children, who understandably suffered grief from the loss of their father, are getting on with their lives and appear to be happy and adjusting well.
The plaintiff, in her role as tutor, supports the compromise of the nervous shock claims for each of the children and so too do the solicitor and counsel for them. The figure represents slightly above a finding of 25% of a most extreme case under s 16 of the Civil Liability Act 2002 (NSW).
With the assistance of the detailed advice from Mr Radburn that assesses these claims, and my own review of the evidence, I am well-satisfied that the compromise sum of this claim is beneficial to, and in the best interests of, the dependents. I therefore approve them.

The claim under the Compensation to Relatives Act 1897

An action under the Compensation to Relatives Act requires the Court to assess damages based on the reasonable expectation of pecuniary benefit or benefit reducible to money value which the deceased would have applied for the maintenance of his or her family: Halvorsen Boats Pty Limited v Robinson (1993) 31 NSWLR 1, 11; De Sales v Ingrilli (2002) 212 CLR 338; [2002] HCA 52 at [11] and [13] ('De Sales'). Only one action is permissible (see ss.4(1) and 5 of the Act), hence the Court is required to apportion the quantifiable benefits amongst the dependents.
In general terms, an assessment of damages under the Act requires the Court to undertake a three step enquiry: first, to determine the future earnings of, and services provided by, the deceased. This task is necessarily hypothetical and an "approximation" of benefits has been judicially endorsed; secondly, to determine whether there are any legitimate deductions; and, thirdly, to determine the degree of dependency and to undertake an apportionment of damages between dependents. Commonly, the second and third steps involves resort to the 'dependency table' contained in the text by Harold Luntz, Assessment of Damages for Personal Injury and Death, (4th ed, 2002, Lexis Nexis Butterworths), 501 (table 9.1) or some equivalent, with the Court making, where necessary, adjustments to the percentages depending upon the circumstances of a given case.
As to the claim for loss of 'services', it is well established that loss of domestic service is a material loss and the dependents are thus entitled to damages in claims under the Compensation to Relatives Act representing the loss of the value of the deceased's unpaid domestic services: Nguyen v Nguyen (1990) 169 CLR 245, 247, 254 and 265; [1990] HCA 9.
There are two broad issues here. The first is the quantification of the overall pecuniary loss. The second is the apportionment of the sum proposed.
As to the first issue, the quantification of the pecuniary loss referable to the loss of financial support is likely to be a straightforward assessment. There is likely to be, however, some degree of contest about the extent of services particularly given the age of the children, and their increasing independence (financial and otherwise).
Here, with the assistance of the detailed advice from Mr Radburn that assesses the value of the claim, and my own review of the evidence, I am well-satisfied that the compromise sum of this claim is beneficial to, and in the best interests of, the dependents. I have also considered the (entirely understandable) desires of the children for the litigation to be finalised, and the attendant benefits that arise from prompt and early resolution of the claim.
As to the second issue - viz., apportionment of the settlement sum - although, as I have noted, commonly apportionment follows, or is significantly informed by the 'dependency table', ultimately, however, the apportionment exercise is driven by the facts of each case and is a matter for the Court. The method of apportionment that has been proposed essentially provides an amount reflecting dependency until each child attains the age of 18 years, with the balance to be apportioned to the plaintiff.
The logic of that approach is that it is usual to assume that the surviving spouse's dependency would have increased as each child's dependency ceased.
There are two further matters to address. The first is the consequence of the plaintiff's remarriage, in May 2021. The extent to which this remarriage impacts upon damages is, again, fact sensitive but it is plainly relevant: De Sales at [25]ff. Generally speaking it operates to reduce the damages that a claimant might otherwise be entitled to. However, given the quantum of the settlement (and my finding about it: see [30], above) it is unnecessary to dwell upon this.
A second matter relates to Grahame, which is the issue that led me to hesitate in approving the apportionment when it was first listed. He suffers from thrombasthenia - a form of hereditary platelet disorder, and also suffers from some cognitive and intellectual disabilities, which I will outline. (There is no suggestion that the other brothers are afflicted with the disorder, nor with any form of cognitive or intellectual disability).
In relation to the blood disorder, a consequence of it is that, by reason of the absence of a protein essential for normal platelet function, there can be spontaneous bleeding, or bleeding in the context of minimal trauma. And it can be life-threatening when that bleeding is severe or uncontrolled. The report from Dr Ken MacLean, a consultant paediatrician geneticist, dated 30 October 2020, records Grahame's medical history (in connection with this condition) as being "in many respects typical of the disorder in regard to the manifestations, frequent hospital presentations, care required with management and need for a clear management plan and specialist input early in the event of severe or continued bleeding" (report, p 4). Ordinarily, one would expect, that this condition would be capable of management by an individual as they mature. But, initially, the evidence (notably the report from Dr MacLean dated 30 October 2020, p 17) in this case cast some doubt upon this - suggesting that he may require ongoing, possibly high level, supervision given his cognitive disabilities. However, in his report, dated 4 August 2023, Dr MacLean, following his interview of the plaintiff and Grahame on 2 August 2023, revisited this opinion. Put simply, Dr MacLean expressed the opinion that whilst the management of that blood disorder would be ongoing, Grahame had sound knowledge and demonstrated practical management of his bleeding disorder, with an ability to manage that condition to the point of requiring hospitalisation, if necessary. Dr MacLean also noted that Grahame makes "appropriate adjustments to minimise risks" of any bleeding episodes. Dr MacLean specifically addressed his earlier opinion stating that: "this is not required given his demonstrated competency as outlined above" (report, dated 4 October 2023, p 7).
Dr MacLean also addressed, in both reports, Grahame's cognitive and intellectual disabilities. Dr Maclean was also briefed with a considerable amount of material dealing with them, which he canvassed in his first report. Drawing upon those matters, and his own assessment, Dr MacLean noted, again in his first report, that there were features of autism spectrum disorder with features of moderate attentional disorder, severe language and communication difficulties and mild intellectual disability.
Dr MacLean revisited this issue in his second report, and he also was briefed with a considerable amount of further material including Grahame's school reports. In his second report, Dr MacLean expressed the opinion that the evidence suggesting "a diagnosis of ASD is diminishing", and also concluded that, unlike his earlier assessment, the material was consistent with Grahame having a "mild learning and cognitive disability, which is likely to be in a borderline … rather than mild [intellectual disability]. Borderline IQ is not a clinical disorder" (report, p 3). He did consider that Grahame showed evidence of inattention consistent with ADHD, but pointed out that he would require further assessment in order to confirm that diagnosis. Dr MacLean expressed the opinion that Grahame's verbal skills remain a limiting factor and although it would be difficult to predict how he would perform in TAFE based training or an apprenticeship, he expressed the opinion that it "would not be expected to preclude him as a suitable candidate to commence an apprenticeship …" (report, p 8).
In terms of Grahame's day-to-day functioning, Dr MacLean expressed the opinion that Grahame had a "good" ability to live independently, that he was able to attend to his personal and domestic activities of daily living and that he "demonstrates sound basic financial skills based on his current employment".
These opinions are supported by the further evidence of the plaintiff in her affidavit sworn 7 August 2023, pars 6-18.
It is, of course, true that there are some differences between each of the children in terms of their age, but the difference is not so great as to warrant revision. In this respect I think it is appropriate to note that that is the desire of the plaintiff, as the mother of the three boys. Further I am satisfied that, based on the evidence of the plaintiff and Dr MacLean, there is not otherwise a significant reason to differentiate between the children.
In those circumstances, and guided by the advice of experienced counsel and the solicitor for the plaintiffs, I am satisfied that the proposed apportionment is beneficial to, and in the best interests of, each of them and I approve the proposed apportionment of the action under the Compensation to Relatives Act.

Orders

As I have earlier noted, Gregory Serone was born on XX September 2005, and so will shortly turn 18 years of age. In those circumstances, there is reluctance to incur the cost of having the damages for his nervous shock claim (and any amount apportioned to him in the action under the Compensation to Relatives Act) managed for what is to be an extremely short period (just under 2 months). On the evidence, there would be a significant cost to him if that were to be managed for that confined time.
In the action involving Gregory Serone (2022/31626), I make the following orders: 1. The settlement recorded in par 1 of the Consent Judgment dated 27 June 2023 and filed in Court on 9 August 2023, signed by the legal representatives for the parties, is approved pursuant to s 76(4) of Civil Procedure Act 2005 (NSW). 2. Judgment for the plaintiff in accordance with par 1 of the Consent Judgment dated 27 June 2023. 3. Order in accordance with par 2 of the Consent Judgment and pars 3, 4, 6 and 7 of the Consent Judgment are noted. (It is noted that par 5 of the Consent Judgment has been superseded by the order that follows). 4. Pursuant to s 77(2) of the Civil Procedure Act 2005 (NSW), the Court directs that the sum of $XX ('the settlement sum'), less the statutory deductions authorised by par 4 of the Consent Judgement, is to be paid into Court and thereafter in accordance with s 77(4) of the Civil Procedure Act 2005 (NSW) be paid out to Gregory Jaymz Serone on 30 September 2023 upon him attaining the age of 18 years. 5. Order the confidential advices from counsel for the plaintiff dated 27 June and 11 July 2023 be placed in a sealed envelope, with access to that envelope to be granted only by leave of a judge of the Court.
In relation to Grahame and Zakary, the evidence of the solicitor for the plaintiffs is that, in approximate terms, the cost to invest the amount with the NSW Trustee & Guardian would be around $XX (for two years), and around $XX (for three years): affidavit of Robert Warren sworn 27 June 2023, pars 37-40. That would involve a significant burden on each of them: there would be a negative return on the sum invested. The legal representatives for each of those children, in the circumstances, seek an order, pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW) that the monies be paid into the trust account of the solicitor for the plaintiffs, to be paid into an account operated jointly by the solicitor for the plaintiff and the plaintiff as trustees. Given the confined period of time until each attains majority, and the costs of otherwise managing the fund for that period, I propose to make that order.
In the action involving Grahame Serone (2022/31643), I make the following orders: 1. The settlement recorded in par 1 of the Consent Judgment dated 27 June 2023 and filed in Court on 9 August 2023, signed by the legal representatives for the parties, is approved pursuant to s 76(4) of Civil Procedure Act 2005 (NSW). 2. Judgment for the plaintiff in accordance with par 1 of the Consent Judgment dated 27 June 2023. 3. Order in accordance with par 2 of the Consent Judgment and pars 3, 4, 6 and 7 of the Consent Judgment are noted. (It is noted that par 5 of the Consent Judgment has been superseded by the order that follows). 4. Order the confidential advices from counsel for the plaintiff dated 27 June and 11 July 2023 be placed in a sealed envelope, with access to that envelope to be granted only by leave of a judge of the Court. 5. Pursuant to s 77(3) of the Civil Procedure Act 2005 NSW the Court directs that the settlement sum ($XX) not be paid into Court but be paid to the Trust Account of Somerville Laundry Lomax Solicitors, 1 Carrington Street Lismore in the State of New South Wales upon their undertaking to pay same into a fixed term deposit account in the joint name of Robert Andrew Warren and Nikki Lee Serone as trustees for Grahame Michal Serone with the Greater Bank, Lismore Branch, in the State of New South Wales until Grahame Michal Serone attains the age of 18 years. It is further ordered that it is a term of such trust and any account that any withdrawals from such account must be first approved by order of the court and signed by both trustees namely Robert Andrew Warren and Nikki Lee Serone.
In the action involving Zakary Serone (2022/31604), I make the following orders: 1. The settlement recorded in par 1 of the Consent Judgment dated 27 June 2023 and filed in Court on 9 August 2023, signed by the legal representatives for the parties, is approved pursuant to s 76(4) of Civil Procedure Act 2005 (NSW). 2. Judgment for the plaintiff in accordance with par 1 of the Consent Judgment dated 27 June 2023. 3. Order in accordance with par 2 of the Consent Judgment and pars 3, 4, 6 and 7 of the Consent Judgment are noted. (It is noted that par 5 of the Consent Judgment has been superseded by the order that follows). 4. Order the confidential advices from counsel for the plaintiff dated 27 June and 11 July 2023 be placed in a sealed envelope, with access to that envelope to be granted only by leave of a judge of the Court. 5. Pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW) the Court directs that the settlement sum ($XX) not be paid into Court but be paid to the Trust Account of Somerville Laundry Lomax Solicitors, 1 Carrington Street Lismore in the State of New South Wales upon their undertaking to pay same into a fixed term deposit account in the joint name of Robert Andrew Warren and Nikki Lee Serone as trustees for Grahame Michal Serone with the Greater Bank, Lismore Branch, in the State of New South Wales until Grahame Michal Serone attains the age of 18 years. It is further ordered that it is a term of such trust and any account that any withdrawals from such account must be first approved by order of the court and signed by both trustees namely Robert Andrew Warren and Nikki Lee Serone.
In the action under the Compensation to Relatives Act (2022/31583) and the individual claim by the plaintiff, I make the following orders: 1. The settlement recorded in par 1 of the Consent Judgment filed 5 July 2023, signed by the legal representatives for the parties, is approved pursuant to s 76(4) of Civil Procedure Act 2005 (NSW) (the Act). 2. Judgment for the plaintiff in the proceedings under the Compensation to Relatives Act 1897 (NSW) in accordance with par 1 of the Consent Judgment filed 5 July 2023. 3. Judgment for the plaintiff in relation to the claim for nervous shock in accordance with par 3 of the Consent Judgment filed 5 July 2023. 4. Orders in accordance with pars 2 and 4 of the Consent Judgment filed 5 July 2023 and pars 5-11 inclusive of the Consent Judgment are noted. 5. Pursuant to s 76 of the Civil Procedure Act 2005 (NSW), the Court approves that there be paid the sum of $XX from the judgment in the proceedings under the Compensation to Relatives Act 1897 (NSW) to each of the following persons: 1. Gregory Jaymz Serone 2. Grahame Michal Serone 3. Zakary Riley Serone 1. Pursuant to s 77(2) of the Civil Procedure Act 2005 (NSW), the Court directs that the sum referred to in par 5(a), above, namely $XX be paid into Court and thereafter pursuant to s 77(4) of the Civil Procedure Act 2005 (NSW) paid to Gregory Jaymz Serone upon his attaining the age of 18 years on XX September 2023. 2. Pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW) the Court directs that the following amounts not be paid into court, but instead be paid as follows: 1. As to the sum of $XX referred to in par 5(b), above, to be paid to the Trust Account of Somerville Laundry Lomax Solicitors, 1 Carrington Street Lismore in the State of New South Wales upon their undertaking to pay same into a fixed term deposit account in the joint name of Robert Andrew Warren and Nikki Lee Serone as trustees for Grahame Michal Serone with the Greater Bank, Lismore Branch, in the State of New South Wales until Grahame Michal Serone attains the age of 18 years. It is further ordered that it is a term of such trust and any account that any withdrawals from such account must be first approved by order of the Court and signed by both trustees namely Robert Andrew Warren and Nikki Lee Serone. 2. As to the sum of $XX referred to in paragraph 5(c), above, to be paid to the Trust Account of Somerville Laundry Lomax Solicitors, 1 Carrington Street Lismore in the State of New South Wales upon their undertaking to pay same into a fixed term deposit account in the joint name of Robert Andrew Warren and Nikki Lee Serone as trustees for Zakary Robin Serone with the Greater Bank, Lismore Branch, in the State of New South Wales until Zakary Robin Serone attains the age of 18 years. It is further ordered that it is a term of such trust and any account that any withdrawals from such account must be first approved by order of the Court and signed by both trustees namely Robert Andrew Warren and Nikki Lee Serone.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2023

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