Supreme Court New South Wales Medium Neutral Citation: Cabigting v State of New South Wales [2021] NSWSC 1417 Hearing dates: 01 November 2021 Date of orders: 01 November 2021 Decision date: 01 November 2021 Jurisdiction: Common Law Before: Wright J Decision: The Court made: (1) an order that the settlement of these proceedings be and hereby is approved; and (2) orders in accordance with pars 1, 2, 3, 4 (with the word "dismissed" replaced by the words "set aside"), 10 and 11 of the form of consent orders initialled by me and dated 1 November 2021. And the Court noted: (3) the undertaking of the plaintiff and the agreement between the parties in pars 9 and 12 of the form of consent orders; and (4) the acknowledgements, consents and authorisations in pars 5, 6, 7 and 8 of the form of consent orders. Catchwords: CIVIL PROCEDURE — proceedings commenced by person under legal incapacity — settlement of proceedings — Court approval Legislation Cited: Civil Procedure Act 2005 (NSW), s 76 Cases Cited: Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840 Category: Principal judgment Parties: Prince Andrei Cabigting (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: M Campbell (Plaintiff) Solicitors: Brydens Lawyers (Plaintiff) Wendy Blacker Lawyers (Defendant) File Number(s): 2019/00400859 EX TEMPORE Judgment (REVISED) 1. In this matter the plaintiff by his tutor claims damages from the defendant arising out of an injury suffered by the plaintiff when on 9 March 2017 he was hit in the eye by a lemon whilst at school under the care, control and management of the defendant. The plaintiff was twelve years old at the time of the injury and is now seventeen years old. The parties have agreed to settle the plaintiff's claim upon terms set out in a form of consent judgment which has been provided to the Court. 2. The matter has come before me because s 76(3) of the Civil Procedure Act 2005 (NSW) provides that any compromise or settlement of proceedings commenced by or on behalf of a person under legal incapacity, such as the plaintiff because he is under the age of eighteen, 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. The Civil Procedure Act itself does not provide any specific guidance as to the considerations that the Court should take into account in carrying out the task of approving or disapproving of the settlement. Nonetheless, it is well established by authorities such as Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840 at [3] that: 1. the Court's function is essentially protective; 2. the Court 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. 1. I have been provided with two affidavits of the plaintiff's solicitor, Mr Kheir, which I have taken into account. These affidavits outline the nature and extent of the plaintiff's claim and have annexed copies of relevant expert reports. In addition, the affidavit of 20 September 2021 has annexed as Annexure D the terms of the proposed consent judgment which the parties have agreed. I shall initial that document and date it with today's date and have it kept with the court papers. 2. The evidence before the Court establishes that the injury to the plaintiff's left eye involved a significant blunt injury resulting in a left traumatic maculopathy causing atrophy at the retina which has effectively left him with ongoing and permanent loss of vision in that eye which cannot be improved with spectacle correction. The report of Dr Tronc, consultant in educational administration, deals with liability issues and I have taken that material into account. 3. The report of Dr Delaney, ophthalmic surgeon, establishes that as a result of his severe loss of vision the plaintiff has ongoing difficulties judging depth and distance in certain circumstances especially when he is required to make quick decisions. Dr Delaney was of the opinion that no further treatment is possible and the plaintiff will be left with his current impairment and loss of vision for the foreseeable future. Although he has good peripheral vision he will never regain any of the loss of his fine central vision in his left eye. 4. Dr Rikard-Bell, child consultant family psychiatrist, was of the opinion that there was evidence of an adjustment disorder and the plaintiff ran the risk of becoming depressed in his mid to late teenage years when he would benefit from treatment sessions with a clinical psychologist. 5. The plaintiff indicated his interest in becoming an architect to Dr Delaney, who considered that he would be able to carry out this work but he may be slightly slower than normal while carrying out detailed monitor-based work. He has also shown interest in civil engineering. I accept that there is a significant possibility that his ability to undertake extensive and detailed monitor-based work will be affected by his loss of vision. 6. I have also had the considerable advantage of reading the confidential advice of Mr Robert Sheldon of Senior Counsel and have taken that into account. 7. I have also been provided with two affidavits from the plaintiff's tutor, Ms Cabigting, both sworn on 20 September 2021. I have taken that evidence into account. In particular, Ms Cabigting states that she gave instructions to finalise the plaintiff's claim, subject to the Court's approval, for the amount of the proposed settlement plus costs after receiving advice from Mr Kheir, solicitor for the plaintiff, regarding the appropriate range of settlement. 8. Ms Cabigting also stated that it had been explained to her that should the Court approve the settlement, then the plaintiff will have no further rights to compensation against the defendant in respect of the subject matter of the present proceedings. She understands that the settlement funds will be held in trust for the plaintiff by the NSW Trustee and Guardian or a private trust manager approved by the Court and that those funds may be drawn down to pay for medical treatment, rehabilitation and other reasonable expenses of the plaintiff. 9. Ms Cabigting has also given evidence of the plaintiff's sporting activities and friendships, and his positive attitude and continued participation in those respects despite his injury. In my view, the plaintiff's attitude and participation are to be particularly commended. 10. Ms Cabigting has also been advised that the plaintiff's solicitors will accept in full payment of their costs, fees and disbursements whatever is recovered by way of party and party costs from the defendant and will not look to the plaintiff for any additional amount. This was confirmed by Mr Kheir, the plaintiff's solicitor, in his affidavit of 20 September 2021. 11. The defendant has not paid for any treatment expenses of the plaintiff and Ms Cabigting and Mr Kheir understand that the maximum that Medicare will seek to recover is $58.85. Ms Cabigting also understands that the proposed settlement sum less $58.85 is the amount to be deposited with the NSW Trustee and Guardian or another funds manager approved by the Court. Both Ms Cabigting and the plaintiff's solicitor support the plaintiff's approval of the settlement and it is consistent with Mr Sheldon's advice. 12. The tutor sought that the funds be paid into the plaintiff's solicitors' controlled moneys account and not to the NSW Trustee and Guardian. The basis was that there were only eight months to run, it would be unlikely that there would be any risk to the plaintiff of loss of the funds and it might assist in saving fees. As the function of the Court is protective and, even given the bases put forward, it remains in my view preferable that the moneys be paid to the NSW Trustee and Guardian as originally proposed in the terms of the proposed consent orders which I have initialled and dated and placed with the papers. 13. 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. 14. Accordingly, the Court makes: 1. an order that the settlement of these proceedings be and hereby is approved; and 2. orders in accordance with pars 1, 2, 3, 4 (with the word "dismissed" replaced by the words "set aside"), 10 and 11 of the form of consent orders initialled by me and dated with today's date. And, the Court notes: 1. the undertaking of the plaintiff and the agreement between the parties in pars 9 and 12 of the form of consent orders; and 2. the acknowledgements, consents and authorisations in pars 5, 6, 7 and 8 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: 03 November 2021