Supreme Court New South Wales Medium Neutral Citation: Silva by his tutor Helen Leech v Gunlake Concrete NSW Pty Limited [2023] NSWSC 1463 Hearing dates: 28 November 2023 Date of orders: 28 November 2023 Decision date: 28 November 2023 Jurisdiction: Common Law Before: Lonergan J Decision: Settlement approved. Catchwords: CIVIL PROCEDURE – settlement approval – whether proposed settlement in best interest of plaintiff – traumatic brain injury to adult male at work site – strong liability case – settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Principal judgment Parties: Geoffrey Bruce Silva by his tutor Helen Leech (Plaintiff) Gunlake Concrete NSW Pty Limited (First Defendant) Equip Plumbing Pty Limited (Second Defendant) Soligo Concrete Constructions Pty Limited (Third Defendant) Representation: Counsel: Mr P Mooney SC (Plaintiff) Solicitors: Chadwick Lawyers (Plaintiff) Carter Newell Lawyers (First Defendant) Hall & Wilcox (Second Defendant) Sparke Helmore Lawyers (Third Defendant) File Number(s): 2021/00304823 Publication restriction: Nil JUDGMENT 1. On 29 October 2018, Geoffrey Silva suffered a serious injury to his head whilst at a work site in Banksmeadow. Briefly stated, employees of the defendants implemented an unsafe ad hoc system to unload large PVC pipes from a truck. In the process of moving them, the pipes swung and dropped from a makeshift sling, striking Mr Silva on the head. 2. Mr Silva's head injuries comprised extremely severe traumatic brain injury with 30 days of post traumatic amnesia, subdural haematomas and subarachnoid haemorrhages, parietal and temporal cortical contusions, and multiple skull fractures. There were also injuries to his cervical spine and right leg comprising a fracture of the right tibial plateau, a tear of the anterior cruciate ligament and a torn meniscus. 3. Mr Silva was 55 years old at the time and is now 63. He planned to work to age 67 and now cannot work at all. His enjoyment of life is severely curtailed. Medical reports tendered in support of the application for approval demonstrate clearly that Mr Silva cannot return to work, cannot drive, has a significant cognitive impairment and serious emotional and behavioural impairments. He had to undergo a number of surgical evacuations of the bleeding in his skull in the immediate post injury period and has ongoing difficulties with his leg injuries. 4. There was an issue between the occupational therapists as to what level of care and assistance Mr Silva would need. He has difficulty planning and organising himself and his household, and he undoubtedly needs household and personal care and assistance on a regular basis of some hours per day. I am satisfied that the settlement amount includes an appropriate allowance for this necessary care. 5. The proceedings have resolved following mediation. I am now asked to approve a settlement in favour of Mr Silva in the sum of $2.9 million from which there will be a payment of solicitors costs and disbursements as permitted by the Protective Division and the trustee, Ability One, the Health Insurance Commission of $902.85, a refund to the workers compensation insurer of $260,000.00, and set up fees and ongoing fees and expenses for managing the settlement fund estimated in a letter of Mr Grant of Ability One dated 10 November 2023 to be a sum of approximately $354,000.00 over Mr Silva's 25 year life expectancy. 6. I was assisted by a thorough and considered confidential advice by Mr Mooney SC who, as highly experienced senior counsel recommends the settlement. His advice addresses issues of liability and damages comprehensively and demonstrates sound reasons why the settlement was recommended. 7. The affidavits of Mr Chadwick solicitor and Mr Silva's (sister and) tutor Helen Leech both explain, and in Ms Leech's case accept, the rationale for the settlement sum. 8. I am of the view that the settlement is a good outcome for Mr Silva, and it is in his interest for it to be approved. I understand application will be made via the Protective Division of this Court for orders for payment out and management of Mr Silva's settlement fund at an appropriate time. 9. In the circumstances I make the following orders: 1. Pursuant to section 76(4) of the Civil Procedure Act 2005 (NSW), the court approves the proposed settlement as set out in the Consent Judgment. 2. Judgment for the plaintiff against the first defendant in the sum set out in paragraph 1 of the Consent Judgment. 3. Judgment for the plaintiff against the second defendant in the sum set out in paragraph 2 of the Consent Judgment. 4. Judgment for the plaintiff against the third defendant in the sum set out in paragraph 3 of the Consent Judgment. 5. Note the parties agreements at paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Consent Judgment. 6. Pursuant to section 77(3) of the Civil Procedure Act 2005 (NSW), the net sum remaining after the deductions referred to in paragraphs 5(a), 5(b) and 7(a) of the Consent Judgment to be paid into the court and invested until further order. ********** 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: 29 November 2023