Supreme Court New South Wales Medium Neutral Citation: Simpson by her tutor Simpson v Simpson [2020] NSWSC 815 Hearing dates: 23 June 2020 Date of orders: 23 June 2020 Decision date: 23 June 2020 Jurisdiction: Common Law Before: Wright J Decision: (1) An order that the settlement of these proceedings be and hereby is approved. (2) Orders in accordance with paragraphs 1, 4, 5 and 6 of the form of consent orders signed on behalf of the parties and signed, sealed and dated with today's date by the Court. Catchwords: CIVIL PROCEDURE – Proceedings brought by person under legal incapacity – Settlement of proceedings arising from a motor vehicle accident – Court approval Legislation Cited: Civil Procedure Act 2005 (NSW) Motor Accidents (Lifetime Care and Support) Act 2006 (NSW). Cases Cited: Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840 Category: Principal judgment Parties: Victoria Simpson by her tutor Garth Simpson (Plaintiff) Deanne Simpson (Defendant) Representation: Counsel: P J Frame (Plaintiff) Solicitors: Burke & Baker Lawyers (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2011/296154 Judgment Ex tempore 1. The plaintiff by her tutor claims damages from the defendant arising out of a motor vehicle accident which occurred approximately five kilometres south of Parkes, on 19 September 2008, when the vehicle driven by the defendant failed to negotiate a bend and struck a tree while travelling at about 90km/h. The plaintiff, who was three years old at the time, was a passenger in the vehicle during this accident and suffered, among other things, serious injury to her spinal cord, rendering her a paraplegic. From the outset, the plaintiff has been a participant in the Lifetime Care Scheme and after a period of two years became a permanent participant. 2. The parties have agreed to settle the plaintiff's claim on terms set out in a form of consent judgment signed on behalf of both parties. The matter has come before me because of s 76(3) of the Civil Procedure Act 2005 (NSW), which provides that any compromise or settlement of proceedings commenced by or on behalf of a person under legal incapacity, such as the plaintiff, 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. 3. The Civil Procedure Act itself does not provide any guidance as to the considerations that the Court should take into account in carrying out the task of approving or disapproving the settlement. However, it is well established that: 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; and 3. the approval depends ultimately on whether the settlement is beneficial in the interests of that person, 4. Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840 at [3]. 1. I have had the considerable advantage of reading the "Confidential Advice" of Mr Frame of Counsel, who appears for the plaintiff, in relation to the matter. I have taken that material into account. 2. The plaintiff's injuries included head and brain injury, extradural haematoma, severe injury to the neck at level C1/2, severe injury to the thoracic spine including disruption at the levels of C7 to T2 and T9/10, severe fracture dislocation at T9/10 severing the spinal cord and causing paraplegia, severe injury to the hips, pelvis and lower limbs and fractures involving the right femur and hip. The resulting disabilities have been substantial and include, most significantly, loss of use of the lower limbs, bladder and bowel dysfunction, reduced control of body temperature and constant dislocating of the left hip. While she spends most of her time in a wheelchair, the plaintiff excels in wheelchair sports and is a strong swimmer and engages in shotput and discus activities. She also plays tennis and goes horse riding, weekly. The plaintiff has a commendable intention of working on completion of her schooling, perhaps teaching horse riding or working in a farming scenario, but her evolving spinal condition and other circumstances must be taken into account in assessing her likely economic loss and other aspects of her damages claims. 3. I have also been provided with two affidavits for the plaintiff's tutor, Garth Simpson, sworn 21 November 2019 and 16 June 2020. I have also taken these into account. In particular, in the later of these affidavits, Mr Simpson stated that it is his understanding that the settlement terms come very close to the optimum financial result attainable for the plaintiff. He has discussed the settlement with his wife and it has been explained to the plaintiff. Mr Simpson also stated that it had been explained to him and he understands that, should the Court approve the settlement, the plaintiff will have no further rights to compensation against the defendant in respect of the subject matter of the present proceedings but she will continue to receive benefits pursuant to the Lifetime Care Scheme and that those rights will be unaffected by the settlement. 4. I have also had regard to the two affidavits of the solicitor for the plaintiff, Mr William Burke, both sworn on 18 June 2020, in which he explained the basis for the proposed settlement figure and the position in relation to solicitor/ client costs. Mr Burke further stated that he regarded this proposed settlement as fair and reasonable and in the interests of the plaintiff. 5. Mr Burke also drew attention to a notice from Medicare, which is provided at Annexure C of Mr Simpson's 16 June 2020 affidavit, dated 14 September 2019, stating that the amount of $8,220.40 is payable to Medicare in relation to the plaintiff's claim for compensation. Mr Burke noted, however, that Lifetime Care will reimburse Medicare for this amount, given the plaintiff has been a participant of Lifetime Care from the outset, with the result that the plaintiff will receive the whole of the benefit of the amount payable, if the settlement is approved. Annexure A to Mr Burke's affidavit sworn 18 June 2020 provides written confirmation from the Lifetime Care and Support Authority that the plaintiff's application for lifetime participation in the scheme was accepted on 5 October 2010 under s 9(1) of the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW). 6. Annexed to this affidavit of Mr Burke was a bundle of medical reports and related materials including reports of Dr Botman, under whose care the plaintiff has been since her admission to The Children's Hospital at Westmead, three days after the motor vehicle accident. These provide a useful basis for assessing the plaintiff's progress and condition and I have taken them into account. 7. The second of Mr Burke's affidavits, sworn on 18 June 2020, has annexed to it a bundle of reports by doctors, a physiotherapist and an occupational therapist who have examined or treated the plaintiff during the period from 2009 to 2018. There was substantial agreement between the specialists concerning the plaintiff's relevant injuries and ongoing condition. 8. Taking all of the above considerations into account and having regard to the amount of the agreed settlement, I am satisfied that what is proposed is prudent and that it would be in the best interests of the plaintiff if the settlement is approved. 9. Accordingly, the Court makes: 1. An order that the settlement of these proceedings be and hereby is approved. and 1. Orders in accordance with paragraphs 1, 4, 5 and 6 of the form of consent orders signed on behalf of the parties and signed, sealed and dated with today's date by the Court. and the Court notes: 1. the undertakings in paragraphs 2 and 3 of the form of consent orders. ********** 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: 26 June 2020