Turnbull v Redmond [2022] NSWSC 105

Supreme Court New South Wales

Medium Neutral Citation: Turnbull v Redmond [2022] NSWSC 105 Hearing dates: 14 February 2022 Date of orders: 14 February 2022 Decision date: 14 February 2022 Jurisdiction: Common Law Before: Ierace J Decision: Orders made in terms of the draft consent orders numbered (1) to (3) inclusive. Catchwords: CIVIL PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal capacity – whether proposed settlement is in the interests of the plaintiff Legislation Cited: Civil Procedure Act 2005 (NSW), s 76 Cases Cited: Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 Category: Principal judgment Parties: Adam Turnbull (Plaintiff) Stephen Redmond (Defendant) Representation: Counsel: Mr P Mooney SC (Plaintiff) Mr K Rewell SC (Defendant)

Solicitors: Masselos & Co (Plaintiff) McCabes (Defendant) File Number(s): 2020/185992

Judgment 1. HIS HONOUR: This is an application for approval of a proposed settlement of a claim for damages commenced on behalf of Adam Turnbull, the plaintiff, by his sister, Laura Turnbull ("Ms Turnbull"), as his tutor, against the defendant, Stephen Redmond. The application is made pursuant to s 76 of the Civil Procedure Act 2005 (NSW) ("the Act"), which provides that, in proceedings commenced on behalf of a person under legal incapacity, if an agreement for a compromise or settlement is made, that person is not bound by it unless it is approved by the Court. 2. The plaintiff claims to have suffered certain injuries consequent to a motor vehicle accident on 9 October 2016. A car being driven by the defendant collided with the plaintiff, allegedly after he moved onto a pedestrian crossing on the Old Illawarra Road, Illawong. 3. In a statement of claim filed by the plaintiff on 23 June 2020, the plaintiff alleged that the collision was consequent to negligence on the part of the defendant and that the plaintiff sustained injuries. These alleged injuries were a traumatic brain injury, lacerations, injuries to his face, right shoulder and upper and lower limb injuries, as well as amnesia, post-traumatic stress disorder, a depressive disorder and shock and sequelae. The plaintiff alleged that he suffered, and continues to suffer, loss and damage consequent to the collision. 4. The defendant, in his defence filed on 10 September 2020, admitted the collision and that the plaintiff suffered injury, loss and damage, but did not admit their extent. 5. Certain medical reports obtained by each party, and three reports obtained jointly by the parties, were annexed to an affidavit affirmed on 11 February 2022 by the plaintiff's solicitor, Gregory Masselos. It is apparent from all of the material that the most significant injury suffered by the plaintiff was to his brain and related cognitive and psychiatric impacts. A joint neuropsychologists' report, dated 15 October 2021, assessed the injury as being a severe traumatic brain injury which fell on the lower end of the spectrum of severity, so that it "is not a classic severe traumatic brain injury". A joint psychiatric report, dated November 2021, expressed agreement that the plaintiff's post-injury improvement in his cognitive function had probably plateaued after two years. They diagnosed the plaintiff as having a neurocognitive disorder in association with a chronic adjustment disorder, and agreed that the degree of his incapacity was as a result of an interaction between his cognitive and adjustment disorders. Their joint opinion as to his prognosis was "guarded". 6. The plaintiff was aged 27 at the time of the collision. I note from the material tendered before me that he had been employed since 2007 with the same employer and that a plan was afoot for him to take over his employer's business when he retired in 2017. However, following the collision, the plaintiff's quality of work suffered and his employer postponed his retirement. The plaintiff lost his employment in 2020. 7. In an affidavit affirmed on 10 February 2022, Ms Turnbull stated that she attended a mediation conference between the parties on 11 June 2021. Both before and after the conference she received comprehensive advice from Mr Masselos and Senior Counsel retained on behalf of the plaintiff, Peter Mooney SC, about the range of damages the Court could award the plaintiff. On 27 January 2022, Ms Turnbull gave instructions for an offer of settlement to be made, which was accepted by the defendant. She understands that it will be a full and final settlement and expressed awareness that there will be deductions from the amount and that the balance would be invested. She stated that she has had many discussions with the plaintiff about the proposed settlement and she understands that he wishes the Court to approve it. 8. I have had the benefit of reading a confidential joint memorandum of advice as to the merits of the proposed settlement, prepared by Mr Mooney SC. 9. The Court's function in a hearing pursuant to s 76 of the Act is protective in nature. In Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336, Hammerschlag J, referring to this provision, observed, at [29]: "The principle is that for the Court to grant approval for a compromise to be entered into by the disabled 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[d] person: Somerset v Ley [1964] 1 WLR 640 …" 1. The Court must take into account the possibility that an award of damages at the conclusion of a full hearing may deliver a greater quantum of damages than that which is the proposed settlement amount. 2. Taking into account the confidential joint advice by the plaintiff's Senior Counsel and the affidavits of his instructing solicitor and Ms Turnbull, I am satisfied that the proposed settlement is in the best interests of the plaintiff. 3. Accordingly, I make orders in terms of the draft consent orders numbered (1) to (3) inclusive.