District Court New South Wales Medium Neutral Citation: Brown (bht Arsenovic) v Brothers [2020] NSWDC 319 Hearing dates: On the papers Date of orders: 19 June 2020 Decision date: 19 June 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 26-27 Catchwords: PRACTICE AND PROCEDURE – uncontested application for approval of settlement of plaintiff's claim for damages arising from motor vehicle accident – where plaintiff is a 'person under legal capacity' Legislation Cited: Civil Procedure Act 2005 (NSW), s 76 Motor Accidents Compensation Act 1999 (NSW), s 131 Cases Cited: Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 Category: Principal judgment Parties: Mr K Brown by his tutor Ms D Arsenovic (Plaintiff) Mr RF Brothers (Defendant) Representation: Counsel: Mr W Reynolds for the Plaintiff Solicitors: Crown Solicitor's Office for the Plaintiff Sparke Helmore Lawyers for the Defendant File Number(s): 2014/100840 Publication restriction: Nil Judgment INTRODUCTION 1. Before the Court is an application brought under s 76 of the Civil Procedure Act 2005 (NSW) for approval of a settlement of a proceeding involving a claim for damages sustained as a result of the plaintiff, Mr Kai Brown suffering injury in a motor vehicle accident on 26 June 2011. It is brought with the consent of the tutor for the plaintiff, Ms Arsenovic. The circumstances in which Ms Arsenovic consents to the settlement will be elaborated below. 2. The accident occurred when Mr Brown was aged 10 years old. Mr Brown is now aged 19, but continues to be under both a legal and financial incapacity; requiring a tutor and the Court's approval to the proposed settlement. A term of the consent judgment is that the settlement sum be paid to the NSW Trustee & Guardian. That office has indicated its willingness to hold the sum and apply the monies, on trust, for Mr Brown's benefit, subject to the settlement sum being released if that office assesses that he is capable of managing his affairs. 3. Mr Brown was a passenger in a vehicle driven by Ms Suzanne Brown in an easterly direction on Ocean View Parade, Caves Beach. That vehicle was struck by another car, travelling in an westerly direction, which attempted to make a right turn across the path of the vehicle that the plaintiff was travelling in. 4. The defendant admitted liability and there has been no defence of contributory negligence. At the time of the settlement, the only outstanding issue was the assessment of damages. 5. The parties have placed before the Court two affidavits, one from Ms Arsenovic and the other from Ms Jennifer Casperson. Ms Casperson is a Senior Solicitor of the Crown Solicitor's Office, which acts for the plaintiff in the matter. Ms Casperson's affidavit was identified as being confidential, even though much of it is not truly confidential. Be that as it may, I propose not to intentionally disclose any part of it that is confidential. A confidential opinion from Counsel, dated 16 May 2020 has also been placed before the Court. The subject matter of that opinion was Counsel's views as to the prospects of Mr Brown recovering the heads of damage he claimed. ROLE OF THE COURT ON THE APPLICATION 1. It is uncontroversial that for an application of this kind, the Court's role is protective and the Court's task, more specifically, is to scrutinize the terms of settlement to ensure that the settlement is beneficial to the interests of the person under the legal capacity. In practical terms, the Court will consider whether there is sufficient prospect that the plaintiff will obtain a more favourable judgment sum if the proceeding continues, in comparison with the benefit of achieving the certain outcome, derived from compromise, through the settlement: see for example, Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 at [30]-[40]. 2. Further, in this context, the Court customarily attaches significant weight to the opinion of the person's legal adviser and, where it arises, any grounds of opposition, to any settlement. 3. There is no opposition to the settlement. No evidence has been received on behalf of the defendant in relation to the application. However, on 11 June 2020, the solicitor for the defendant executed, on behalf of the defendant and on a 'without admissions' basis, a proposed consent judgment giving effect to the settlement. MR BROWN'S CLAIM FOR DAMAGES 1. By his statement of particulars filed at the time the proceeding was commenced, on 28 March 2014, Mr Brown's injuries were identified as consisting of abdominal injury and psychiatric injury. The document contained claims for past out of pocket expenses and loss of income. 2. These particulars were subsequently amended on about 1 September 2016, and then again in November 2018 when, on each occasion, it was asserted that Mr Brown had sustained a soft tissue injury to his abdomen, but the psychiatric injury was specified as comprising a generalised phobia disorder and social phobia. It was confirmed that Mr Brown pressed his claims for future substantial impairment to his earning capacity and past out of pocket expenses, as well as future costs of treatment. As to the former, it was acknowledged that no claim for past loss of earning capacity was brought and that, to the extent that the claim was brought for future loss of earning capacity, the claim was put on two alternative bases: being either the average weekly earnings of an adult male until the pension age or a substantial buffer, or a lump sum. 3. On 10 October 2019, a MAS assessor (Assessor Samuels) certified that, in his opinion, none of the injuries referred to him for his assessment were related to the motor accident and he determined, therefore, that there was no basis for a permanent impairment assessment. That opinion was unsuccessfully challenged on an application for review. Consequently, Mr Brown has no entitlement to recover damages for non-economic loss (per s 131 of the Motor Accidents Compensation Act 1999 (NSW)). 4. This has meant that the plaintiff was left with claims for past and future out of pocket expenses, and past and future loss of earning capacity. No claim was brought for past or future domestic assistance. Medical evidence 1. As indicated, I am confined by what I can say about the medical evidence. 2. It is common ground, however, that prior to the accident, Mr Brown was autistic and suffered learning difficulties. 3. In a joint report of Professor Einfeld (the plaintiff's psychiatrist), Dr Rickard-Bell (the defendant's psychiatrist) and Dr Teoh (another psychiatrist for the plaintiff), dated 4 June 2018, the experts identified Mr Brown's pre-existing condition as "Autistic Spectrum Disorder and Expressive Language Delay". They concluded that the accident had caused 'Adjustment Disorder with Anxiety' – a different diagnosis to that which had been made earlier by Professor Einfeld. Both of these conditions continued. They agreed that Mr Brown's autism would impact upon his capacity for employment, in that he would not be able to undertake work involving a high level of social skills, but he would find work of a more impersonal or mechanical nature to be more suitable for him. They agreed that the Adjustment Disorder, assuming it continued, might make it difficult for Mr Brown to undertake new challenges in the workplace, as he may worry excessively about either his performance or how others might regard him. They concluded that he would require psychological treatment for his anxiety for 12 sessions a year, for two years at an estimated cost of $6,000. 4. A reasonable inference from the report is that these experts do not discount the possibility that the anxiety disorder diagnosed as having resulted from the motor vehicle accident may impair his future earning capacity. Counsel's opinion 1. This was expressed to be confidential. It was rendered by highly experienced junior counsel, who had the opportunity of conferring with Mr Brown on 6 May 2020 and identifying his present circumstances and future career aspirations. 2. Without delving into the specific content of the confidential opinion, the strengths and weaknesses of Mr Brown's claims under each of damage were thoroughly canvassed, with reference to the Assessor's opinion, and the other medical evidence. Counsel formed an opinion of the likely recovery of damages. 3. The agreed settlement sum of $70,000 in no way reflects any substantial undervalue having regard to Counsel's opinion. Ms Casperson's opinion 1. Independently of Counsel, Ms Casperson also conducted a thorough view of the medical evidence obtained by the parties, and the MAS assessments, and developed her own view as to the prospects of each claim; which broadly coincided with Counsel's opinion; if not specifically on the estimated quantum of each claim. THE TUTOR'S POSITION 1. Ms Arsenovic consented to act as tutor for Mr Brown on 20 June 2018. She says she has no interest adverse to Mr Brown's interests. 2. Having read the analyses by Counsel and Ms Casperson, and the underlying medical reports, and acknowledging that some deduction will be made from the settlement sum, the tutor opines that it is in Mr Brown's best interests for the Court to approve the settlement. She indicated this view on the understanding that if the settlement is approved, it will bring to an end any further entitlement he may have to claim future damages. 3. Ms Arsenovic supports the application for the Court's approval of the settlement. CONSIDERATION 1. As noted, the Court places significant weight upon the opinions of both the experienced Counsel and the solicitor for the plaintiff as to the likely recoverable award for damages if the action proceeded and whether the settlement is in the best interests of the claimant. In addition, a usual point of reference when considering whether to approve or reject a settlement is the position articulated by the tutor and, specifically, whether objection is taken to the settlement by the tutor. That is not the position that pertains in this case. 2. I do not consider that the settlement amount received represents any undervaluation of Mr Brown's damages claim. 3. Noting also the support of the defendant to the settlement, pursuant to s 76(3) of the Civil Procedure Act, I approve the proposed settlement and note that, pursuant to s 76(6), the settlement is binding upon Mr Brown. 4. By consent, and without admissions, I make orders in accordance with paragraphs 1 to 8 of the Consent Judgment supplied to the Court, as executed on behalf of the parties and as signed and dated by me. ********** 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: 19 June 2020