Supreme Court New South Wales Medium Neutral Citation: Chelsea Higgins BHT Kerry Higgins v Equestrian NSW Incorporated [2022] NSWSC 237 Hearing dates: 14 February 2022 Date of orders: 14 February 2022 Decision date: 14 February 2022 Jurisdiction: Common Law Before: Walton J Decision: 1 The Plaintiff shall cause her action to be mentioned in Court and apply for approval of this settlement and for such other order as may be considered expedient in line with the provisions of the Civil Procedure Act 2005 (NSW). 2 Subject to the approval, the Plaintiff and Defendants agree that, without admission of liability, judgment is entered in favour of the Plaintiff in the total sum of $[REDACTED], on the following terms: (a) The First, Second, Third and Fourth Defendants to pay the Plaintiff the sum of $[REDACTED] (Damages Sum). (b) Payment of the Damages Sum to be made into the nominated bank account, as directed by the Tutor, to be held in trust on behalf of the Plaintiff. (c) The Defendants to pay the Plaintiff's costs and disbursements (Costs Sum): (i) $[REDACTED] in respect of professional legal costs. (ii) $[REDACTED] in respect of disbursements. together, the Damages Sum and Costs Sum comprise the Settlement Sum) 3 All previous costs orders be vacated. 4 This settlement is the subject of the provisions of the Health & Other Services (Compensation) Act 1995 (Cth) and the Health & Other Services (Compensation) Care Charges Act 1995 (Cth) regarding release of the Settlement Sum. 5 The Plaintiff acknowledges that she may be liable to pay amounts from the Settlement Sum pursuant to the provisions of the Health & Other Services (Compensation) Act 1995 (Cth) and the Health & Other Services (Compensation) Care Charges Act 1995 (Cth), and any amounts whosoever payable pursuant to the Social Security Act 1991 (Cth). 6 The Plaintiff acknowledges and agrees that the portion of the Damages Sum payable to the Plaintiff will be satisfied by the Defendants having made the following payments (as applicable): (a) any amount to be paid to Medicare Australia pursuant to the amendments to the Health & Other Services (Compensation) Act 1995; (b) any amount payable to any person or body under any relevant statutory provision, in respect of which notification of the amount to be deducted from the Damages Sum has been provided to the Defendants' solicitors; and (c) the balance of the Damages Sum to be paid to the Plaintiff. 7 No interest will be payable in respect to the amount referred to in paragraph 6(c) above on or before the later of: (a) 28 days from the date judgment is entered; or (b) 28 days after receipt by the Defendants of an executed authority to receive from the Plaintiff; or (c) 28 days after receipt by the Defendants of a copy of the Consent Judgment duly sealed or initialled by an officer of the Court; or (d) 28 days after the receipt by the Defendants or its respective insurer of a notice issued by the Managing Director of Medicare Australia pursuant to sections 24 or 25 of the Health & Other Services (Compensation) Act 1995 (Cth). 8 No interest is payable by the Defendants in respect of the Settlement Sum forwarded in complying with its obligations under the Health & Other Services (Compensation) Act 1995 (Cth) and Social Security Act 1991 (Cth). 9 The details of the payments made to the Plaintiff, as set out in paragraph 2, are not to be disclosed except to the extent as required by law. Catchwords: SETTLEMENT – approval of settlement under s 76 of the Civil Procedure Act 2005 Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Principal judgment Parties: Chelsea Higgs BHT Kerry Higgins (Plaintiff) Equestrian NSW Incorporated (First Defendant) Equestrian Australia Limited (Second Defendant) Richard Massey (Third Defendant) James Scobie (Fourth Defendant) Representation: Counsel: R Sheldon SC with M Sandoval (Plaintiff) H Turner (Defendants) Solicitors: Koffels (Plaintiff) Hall and Wilcox (Defendants) File Number(s): 2017/304533 Publication restriction: Nil EX TEMPORE Judgment 1. HIS HONOUR: The court has an application before it to approve the terms of a settlement in the form of a consent judgment executed on 14 February 2022 pursuant to s76 of the Civil Procedure Act 2005 (NSW). Mr Sheldon SC and Ms Sandoval, solicitor, appear on behalf of the plaintiff, Chelsea Higgins by her Tutor Kerry Higgins, Ms Higgins' mother. Ms H Turner, solicitor, appears for the four named defendants. The first named defendant is Equestrian NSW Incorporated. 2. The court has the assistance in reaching a conclusion as to the present application of a confidential advice prepared by Mr Sheldon and Mr D Stanton of counsel together with a substantial volume of material which makes up the court book containing various affidavit material as well as expert opinions in relation to the subject matter of the proceedings initiated by Ms Higgins. The proceedings essentially relate to a claim for damages as a result of Ms Higgins sustaining, amongst other things, traumatic brain injury while competing in the Horseland Equestrian Australia Interschool National Championships on 22 September 2010. 3. I do not propose to refer to the terms of the confidential advice as to do so would be to contravene the ruling that the court has made to treat that advice as confidential in the proceedings. I will however refer briefly to the affidavit of Ms Higgins' tutor sworn on 10 February 2022. 4. In that affidavit the Tutor indicates that she is the plaintiff's mother, the plaintiff was born on 3 September 1994 and at the time of the accident was 16 years of age. She indicates that Ms Higgins was an experienced rider having been a member of the Equestrian Queensland Team as a child and a competitor in the championship. At the time of the accident, Ms Higgins was competing in the pre-novice class cross country event riding a horse called Moni Ami Scaramouche. The cross country event was conducted on a course which contained a number of obstacles over which competitors and their horses were required to jump. Ms Higgins' accident occurred at Obstacle 17A when her horse clipped the top of the obstacle which caused the obstacle to move forward or dislodge from the ground. As well, the horse suffered a rotational fall. As a result of the accident, Ms Higgins suffered, amongst other things as I have mentioned, a traumatic brain injury, a lacerated liver, a fractured scapula and collapsed lung. 5. The Tutor indicated in her affidavit that, despite rehabilitation, Ms Higgins has been left with severe cognitive impairment, emotional and behavioural impairment, severe anxiety and a depressive disorder requiring medication. That is not to say that Ms Higgins has not made some steps forward. I note she is employed in her mother's restaurant and still undertakes riding. There are various statements made in the Tutor's affidavit regarding the nature of the settlement which I do not refer to specifically but have had regard to together with the confidential advice for the purposes of assessing the present application. 6. Mr Sheldon took me this morning to various opinions expressed within the conclave report from the conclave held on 12 August 2021 between two expert witnesses assembled by the respective interests, namely, Mr Wayne Copping and Mr Evin Kellett. The opinions expressed there, which I do not repeat for present purposes, are opinions which were discussed in the course of the confidential advice. Particular attention was drawn to paragraphs 4, 8 and 9 of the opinion, each of which has a bearing upon conclusions that, if the matter were to proceed to trial, issues would arise with respect to duty of care and causation. 7. These are matters, in my opinion, that have a relevant bearing upon the ultimate settlement reached as between the parties and are foundational to the conclusion I have reached in relation to that settlement. Having regard to the entirety of the factors which bear upon an assessment under s 76: the evidence contained within the court book regarding the circumstances of the incident giving rise to the litigation to which I have referred; the opinion of two persons who are experts relevant to the subject matter to which they refer in the conclave; and the confidential opinion before the court, I am of the opinion that the settlement reached between the parties should be approved and I do so pursuant to s76 of the Civil Procedure Act. 8. The consent judgment proposed by the parties contains a number of ancillary considerations in relation to the settlement of the matter, all of which, in my view, are appropriate. I therefore enter judgment in terms of the consent judgment proposed by the parties. ********** Amendments 09 March 2022 - Amount of judgment sums redacted 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: 09 March 2022