Tanner v Buddco Pty Limited (No 2) [2022] NSWSC 1585

Supreme Court New South Wales

Medium Neutral Citation: Tanner v Buddco Pty Limited (No 2) [2022] NSWSC 1585 Hearing dates: 10 November 2022 Date of orders: 10 November 2022 Decision date: 10 November 2022 Jurisdiction: Common Law Before: Campbell J Decision: See paragraph 20 of Judgment. Catchwords: CIVIL PROCEDURE – representative proceedings – settlement or discontinuance – court approval Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW), ss 76, 77 Compensation to Relatives Act 1897 (NSW) Category: Principal judgment Parties: Rachel Louise Tanner (First Plaintiff) Harper Craig Tanner by his tutor Rachel Louise Tanner (Second Plaintiff) Oliver Brian Tanner (Third Plaintiff) Flynn Anthony Tanner (Fourth Plaintiff) Buddco Pty Ltd (First Defendant) DIC Australia Pty Limited (Second Defendant) Representation: Counsel: J Turnbull SC with Ms A Lim for the Plaintiffs T Pitt (Solicitor) for the First Defendant J Braithwaite for the Second Defendant

Solicitors: Foulsham & Geddes (Plaintiffs) Moray & Agnew (First Defendant) Clyde & Co (Second Defendant) File Number(s): 2019/318150

Judgment 1. These proceedings are brought under the Compensation to Relatives Act 1897 (NSW) by Mrs Rachel Tanner on her own and on behalf of each of her three sons: Harper Tanner, Flynn Tanner and Oliver Tanner. Each of the plaintiffs also sues for damages for nervous shock under the provisions of Pt 3 of the Civil Liability Act 2002 (NSW). 2. The proceedings arise out of the death of Mrs Tanner's husband and the father of her three boys on 7 December 2017. The circumstances of Mr Tanner's death need not be recited here. They sufficiently appear, for present purposes, from the pleadings in the file and also from the confidential memorandum of advice of Mr Turnbull SC of 8 November 2022. I have duly informed myself by reference to that document and by reference to the pleadings. 3. Mr Turnbull's advice will be exhibit A before me. I direct that it be placed in a sealed envelope endorsed not to be opened except by an order of a judge of the Supreme Court. 4. The parties have, following a second mediation that occurred on Monday, settled the proceedings. The matter has come before me for the consideration of the Court's approval of the settlement, having regard to the consideration that Mrs Tanner's sons are still of relatively tender age and are yet to attain their majority. 5. In considering whether to approve the settlement, I have to be guided by the consideration of whether I am persuaded that the settlement so far as it affects the children is in their best interests. 6. I should say that I am aware that the trial of the proceedings is fixed to commence on Monday, 14 November. It is necessary, in order that the parties may avoid the incurring of unnecessary costs, that the decision be made today. 7. It is necessary to mention what is proposed. I will direct, however, that in any published version of my reasons that the figures referable to the apportionment of damages to the children should be suppressed, or at least not published, to any person other than to the parties and their legal representatives. 8. The total settlement is in the sum of XXXXXX inclusive of costs. In respect of the children, a figure of XXXXXX in total is to be apportioned between the nervous shock claim and entitlement to a share of the damages under the Compensation to Relatives Act of each of them according to matters discussed between Mr Turnbull and I during the hearing of the application. 9. Although the children are close in age, so far as the financial injury is concerned, if strict logic were to be applied, there may be some small differences between the amount to be apportioned in each case. However, as I remarked during the hearing, there is no great difference in age amongst the boys; and it is the wish of their mother, whose wishes I respect and think it appropriate to consider, that each should have the same total amount apportioned to him. As I say, that may not accord with a strict, logical application of the law, but I recognise the practical wisdom of it. It seems to me, in any event, that the requirements of strict logic would not produce any great differences in the figures to which each boy would be entitled. 10. As I have said, I have read the court book and read the material in relation to damages which it contains. I need only concern myself with the position of the plaintiffs who are minors. Mrs Tanner is sui juris and entitled to make her own decisions. 11. I am of the view that the case on liability is a strong one, subject to an argument about contributory negligence. I accept, for settlement purposes, it is prudent to make some allowance in that regard; but the claim of the defendants about that, bearing in mind they carry the onus, does not seem pellucidly clear. The main issue seemed to me to be about quantum, especially in relation to the nervous shock claims for the boys. There is a real question to be determined at a trial as to whether the statutory conditions underpinning a claim under Pt 3 of the Civil Liability Act would be satisfied, given the disputed, competing medical evidence. Accordingly, I am satisfied that it is in the best interests of the boys and each of them that settlement be approved. 12. Mr Tanner was a self-employed tradesman or technician. In cases involving self-employed people, there is always room for a great deal of argument about financial loss. This case is no different. I have considered the joint report of the forensic accountants. There is clear daylight between them. I am not in any position, in approval proceedings, to attempt to resolve those differences, nor would it be appropriate for me to do so. I am satisfied that the settlement is indeed a prudent one and it is one which, in my judgment, is in the best interests of the boys and each of them, as I have said. 13. It seems to me that it is necessary to notionally, at least, apportion the settlement figure between each boy's individual cause of action for nervous shock and his entitlement to a share in the Compensation to Relatives damages. I think it is sufficient that a rough and ready approach be taken to that exercise. In accordance with the submission of Mr Turnbull, I think it appropriate to regard the sum of XXXXXX payable in respect of each boy in the following amounts. As to the nervous shock case, XXXXXX; and I approve a settlement of that claim in that amount. As to the Compensation to Relatives Act claim, the sum of XXXXXX; and I approve a settlement in each case or in each interest in that amount. 14. An order under s 77(3) of the Civil Procedure Act 2005 (NSW) is also sought. It is sought on the basis that the total sum to which each child is entitled under the settlement as approved be paid not into court but directly to Mrs Tanner as trustee for each of her sons in the amount payable. I am told that it is her intention that the sum be invested securely for each of her sons in an interest-bearing term deposit or the like. No doubt she will take prudent financial advice, until they, in turn, achieve their majority. She would prefer to hold the funds back for longer; but, as Mr Turnbull submits, that is not an option for me or that I may give effect to. 15. I am satisfied that Mrs Tanner is an appropriately responsible, sober and concerned parent. I am satisfied that she is an appropriate person to appoint as manager and trustee of the proceeds of the settlement so far as her sons are concerned. 16. In making that order, I have taken into account the reality that were the Trustee and Guardian, or some private trustee company, appointed, the fees properly chargeable by such an entity would, in all probability, exceed the current interest rates available, even in a rising market so far as interest is concerned, and would significantly erode the settlement sum by the time each of the boys reaches his majority. The parties have agreed, and I am not in a position to interfere with that agreement, that there should be no allowance for funds management in the overall settlement. 17. For those reasons, I am satisfied that the orders sought under s 77(3) sought should be made. 18. The final form of the settlement consists of annexure A attached to the proposed deed of settlement, which will result in judgment for each of the defendants and dismissal of the cross-claims with no order as to costs. Given the terms of the deed, such orders, when entered in due course, in each claim are appropriate. To the extent to which it is necessary for me to express my approval under s 76 of the actual form of orders disposing of the litigation, I do so. 19. I should also say that Mr Turnbull has informed me that his solicitors do not propose to charge solicitor and client costs in respect of the work done to prosecute the claim on behalf of each of the boys. I commend them for adopting such an attractively old-fashioned approach to litigation on behalf of children which sadly is not always evident in modern legal practice. 20. I make orders in accordance with the short minutes of order to which each of the legal representatives of the parties has signified their assent in open court, signed by me and dated today. The orders may be entered forthwith.