Solicitors:
Slater and Gordon (First to Fourth Plaintiffs)
Makinson d'Apice Lawyers (Defendant)
File Number(s): 2016/280322
[2]
Judgment
The first and second plaintiffs, and the third and fourth plaintiffs by their tutor Judith Wormleaton, all claim damages from the defendant, for both nervous shock and compensation to relatives arising out of the tragic death of the first plaintiff's son, the second plaintiff's brother and the third and fourth plaintiffs' father.
On 13 February 2013, the deceased travelled to visit his former de facto partner and their two children, the third and fourth plaintiffs, in Coffs Harbour. On 19 September 2013, following an altercation at the premises, the deceased attempted to drive off in a car he had hired for the trip but ended up crashing the vehicle down an embankment, at which point concerned neighbours telephoned the police. The police found the deceased on the ground moaning and in a state of disarray whereupon they formed the view that he was severely intoxicated, put him in the police van and decided to take him back to the police station for further assessment.
Shortly after this, on the way back to the police station, the police called off an ambulance that had been summoned by a resident on the street of the accident and was on its way to attend to the deceased. After arriving at Coffs Harbour Police Station, the deceased was handcuffed and placed in the charge dock, where he was left on the floor and the door was closed. In that location, he was cramped and there was insufficient room for him to be able to stretch out his legs. When the police returned a short time later, the deceased was unconscious, and despite the administering of CPR and the summoning of an ambulance, he was unable to be resuscitated.
On 26 September 2013, an autopsy was conducted, and the cause of death was noted to be:
"As a consequence of methylamphetamine intoxication while be restrained in a confined space. Positional asphyxia as a major contributory factor in the cause of death cannot be excluded."
The matter was the subject of a Coronial Inquest heard between 9 March 2015 and 9 October 2015, at the conclusion of which Deputy State Coroner Forbes made the following findings:
"I find that [the deceased] died on 20 September 2013 at Coffs Harbour Health Campus, NSW. I am satisfied the cause of his death was as a consequence of methyl amphetamine intoxication while being restrained in a confined space. Positional asphyxia as a major contributory factor in the cause of death cannot be excluded. The manner of his death was misadventure."
The plaintiffs' case was that, as a result of the circumstances which unfolded above, the defendant owed a duty of care to the deceased to take reasonable care for his safety whilst he was detained. It is alleged that the defendant breached this duty of care in a number of ways, including, inter alia: failing to identify the risk to the deceased at the scene of the accident; calling off the ambulance en route to attend the deceased; failing to place the deceased in the "recovery position"; and, not adequately monitoring the deceased whilst in the charge dock.
There was a significant dispute whether the deceased was intoxicated with alcohol or illicit drugs or both or whether his condition was the result of his head hitting the windscreen of his vehicle when it went down the embankment. I have had regard to the report of Prof Duflou, a forensic psychiatrist, dated 16 August 2018, which addressed the issue of the deceased's intoxication on the night and the physical and psychological issues that methamphetamine, as a psychostimulant drug, may have had on the deceased's conduct and state. Prof Duflou noted that from the level of methamphetamine found in the deceased's system he was not able to establish whether or not he was intoxicated in the time preceding his death and at the time of death. Furthermore, he stated that it remains entirely possible for the deceased to have been negligibly affected by the drug, or moderately affected, or significantly affected, or even to have died of consumption of the drug. But, I also noted the Coroner's finding referred to above.
Thus, there was a substantial issue whether what occurred in the present case engaged the operation of s 50 of the Civil Liability Act 2002 (NSW) which relevant provides:
"(1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired.
(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.
…"
The parties have agreed to settle the first, second, third and fourth plaintiff's claims on terms recorded in the form of consent judgment provided to the Court, subject to the Court's approval.
Section 76(3) of the Civil Procedure Act 2005 (NSW) (CP Act) provides, in relation to claims made by a person under legal incapacity, such as the third and fourth plaintiffs in this case, that there may not be any settlement of any proceedings as regards a claim made by or on behalf of such a person, except with the approval of the Court. Section 76(4) empowers the Court to approve or disapprove the agreement for settlement.
The Court's function in a hearing pursuant to s 76 of the CP Act is essentially protective in nature. In Permanent Trustee Co 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: Re Ley's Trusts [1964] 1 WLR 640."
Accordingly, the relevant principles in relation to an application such as this can be distilled in the following way:
1. the Court's function is essentially protective;
2. it should scrutinise the terms of the settlement for the purpose of protecting the interests of the person who is under a legal incapacity;
3. approval of the settlement depends ultimately upon whether it is beneficial to the interests of that person,
Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840 at [3].
I have had the great advantage of reading the confidential memorandum of advice prepared by Mr Kelvin Andrews of counsel in relation to the matter. I have taken the contents of that memorandum both in relation to liability and quantum into account.
I have also had regard to the affidavits provided by Ms Judith Wormleaton, who is the maternal grandmother of the deceased's children, in her capacity as a tutor for the third and fourth plaintiffs, as well as the affidavits of the solicitor for the first to fourth plaintiffs, Ms Sarian, as follows:
1. affidavits of Judith Wormleaton, in relation to the third plaintiff sworn 20 November 2020 and in relation to the fourth plaintiff sworn 20 November 2020;
2. affidavits of Eleni Sarian, in relation to the third plaintiff sworn 20 November 2020 and in relation to the fourth plaintiff sworn 20 November 2020; and
3. an affidavit of Eleni Sarian sworn 3 December 2020, annexing a form of consent judgment and various medicolegal reports.
Both the third and fourth plaintiffs remain under a legal incapacity in that they are still under the age of 18 years. I shall consider the settlements in respect of both these plaintiff's claims separately.
[3]
The Third Plaintiff
Ms Wormleaton has explained that, in her capacity as tutor, she read the expert report of Dr Newlyn, a family and child psychiatrist, dated 30 October 2018. She also stated that she received advice from Mr Andrews of counsel and Ms Sarian and understood that by agreeing to resolve her grandson's claim, the third plaintiff can never sue the defendant for the damage sustained as a result of what occurred, even if his condition deteriorates and even if he requires ongoing treatment. She also indicated that she understood that the defendant will have no further liability for ongoing treatment or other losses in the future arising out of the subject matter of the proceedings, if the settlement is approved and the orders made. Ms Wormleaton also stated that she was aware that there was $1,917.05 due to the Health Insurance Commission to be deducted from the proposed judgment sum.
In relation to damages, besides the inherent difficulties in establishing psychiatric illness arising from events which occurred when the third plaintiff was only six years old, there are in this case additional issues surrounding the question of liability, stemming from the possibility of a finding against the plaintiffs as a result of the operation of s 50 of the Civil Liability Act 2002 (NSW) and other disputed factual matters.
Dr Newlyn's assessment of the third plaintiff was that his psychiatric mental status met the DSM-5 diagnostic criteria for a principal diagnosis of Adjustment Disorder with Mixed Disturbance of Emotions and Conduct and that the adjustment disorder was caused by the unexpected death of his father. However, Dr Newlyn also opined, by way of prognosis, that these problems would resolve with the passage of time.
It also appears, from material such as the observations in the witness statement of Judith Wormleaton, dated 19 December 2018, that the continuation of these proceedings is unlikely to be in the best interests of the third plaintiff as it would prolong his association with the tragic circumstances of his father's death.
Taking all those considerations into account and having regard to the amount of the agreed settlement in all the circumstances, I am satisfied that what is proposed is prudent and it would be in the third plaintiff's best interests if the settlement is approved, as requested by his tutor.
[4]
The Fourth Plaintiff
In the affidavit of Judith Wormleaton, in her capacity as tutor for the fourth plaintiff, she explained that she had read the expert report of Dr Newlyn, dated 30 October 2018, obtained by the fourth plaintiff's solicitor. She also stated that she had received advice from Mr Andrews and Ms Sarian, and her understanding was to the effect as already mentioned in relation to the third plaintiff.
In a similar vein to his report for the third plaintiff, the report of Dr Newlyn, who had reviewed: clinical notes; the Coroner's report; various Infant school reports; counsellor records; and, records from the International Football and Tennis School, assessed the fourth plaintiff as meeting the DSM-5 diagnostic criteria for a principal diagnosis of Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. It also opined that this adjustment disorder was caused by the unexpected death of his father. However, Dr Newlyn was of the opinion that the problems that the fourth plaintiff was currently experiencing, which included behavioural difficulties and periods of melancholy, would resolve with the passage of time. The doctor was not of the opinion that the fourth plaintiff would suffer from any employment incapacity or would need any domestic assistance.
In light of the material before me, it appears that the factual issues relating to causation and the nature and extent of loss and damage are far from clear cut. This is especially so given the fourth plaintiff was only three years old at the time of the accident. As noted for the third plaintiff, the success of the fourth plaintiff's case, if this matter were to proceed to a hearing, would depend to a significant extent upon findings in relation to whether the deceased was intoxicated and the effect of any intoxication on what eventuated.
It seems to me that the resolution of these proceedings is in the best interests of the fourth plaintiff, so as not to prolong his association unnecessarily with the distressing matters surrounding his father's death which would be an inevitability if the litigation were to continue.
Taking the significant issues in relation to liability and causation into account and having regard to the quantum of the agreed settlement, as well as the opinion provided by Mr Andrews, I am satisfied that what is proposed is prudent and that it would be in the fourth plaintiff's best interests if the settlement is approved as sought by his tutor.
[5]
Payment of settlement money
Section 77(2) of the CP Act requires that, because the third and fourth plaintiffs are under a legal incapacity by virtue of their being minors, any money paid pursuant to the orders made as a result of the approval of the settlements be paid into court. The third and fourth plaintiffs' tutor in her affidavits has sought orders, which may be made under s 77(3)(a) of the CP Act, that the amount payable to those plaintiffs as a result of the settlement be paid to the NSW Trustee and Guardian. In the absence of confirmation that the NSW Trustee and Guardian is willing to act as trustee, it appears to me to be premature to make the order sought, although such a direction may be made under s 77(4)(a) when there is confirmation of the NSW Trustee and Guardian's willingness to act. Accordingly, Mr Brown of counsel who appeared for the plaintiffs submitted that I should not make any order under s 77 on the basis that all monies recovered by the third and fourth plaintiffs as a result of the settlement are to be paid into court, by virtue of s 77(2). Ms Perez, solicitor, who appeared for the defendant, did not oppose this course. I accept that this is the appropriate course to adopt.
[6]
Orders
Accordingly:
The Court orders that:
1. In so far as these proceedings relate to the third and fourth plaintiffs, the settlement of these proceedings is approved.
By consent, the Court makes orders:
1. in accordance with paragraphs 1, 2 ,3 ,4, 5, 6, 7, 8 and 9 of the form of consent judgment, as amended, signed and dated with today's date and to which the Court seal has been affixed (the Form of Consent Judgment).
The Court notes the agreement between the parties in paragraphs 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the Form of Consent Judgment.
[7]
Amendments
09 December 2020 - Catchwords not uploaded.
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Decision last updated: 09 December 2020