Supreme Court New South Wales Medium Neutral Citation: Adam Tyson bht Ian Tyson v Paul Sciberras [2024] NSWSC 287 Hearing dates: 8 March 2024 Date of orders: 8 March 2024 Decision date: 08 March 2024 Jurisdiction: Common Law Before: Campbell J Decision: (1) Approve the proposed settlement as set out in the Consent Judgment dated 5 February 2024 as amended by the Court on 8 March 2024. (2) Direct, from the amounts paid into Court the sum of $73,000 be paid out to Stacks Goudkamp, to be held in their trust account until the completion of final costs accounting. (3) Grant liberty to the plaintiff by his tutor to apply for payment out of the moneys held in Court under s 77(3) Civil Procedure Act 2005 (NSW) on three days' notice to the Associate to the Honourable Campbell J and to the defendants. Catchwords: CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76, 77 Health and Other Services (Compensation) Act 1995 (Cth), ss 24, 25 Category: Principal judgment Parties: Adam Tyson by his tutor Ian Tyson (Plaintiff) Paul John Sciberras (First Defendant) Loren Kelly Sciberras (Second Defendant) Boing Pty Ltd (Deregistered) (Third Defendant) QBE Insurance (Australia) Limited (Fourth Defendant) Representation: Counsel: J Gumbert (Plaintiff) TChester (Solicitor) (First and Second Defendant) A Cass (Solicitor) (Fourth Defendant) Solicitors: Stacks Goudkamp (Plaintiff) Meridian Lawyers (First and Second Defendant) Sparke Helmore (Fourth Defendant) File Number(s): 2021/159707 JUDGMENT 1. I am dealing with an application for approval of a settlement under s 76 Civil Procedure Act 2005 (NSW) (the "Act"). The plaintiff Adam Tyson is currently 15 years of age. He will turn 16 in August, and for that reason he is a person under a legal disability and the settlement of his proceedings requires the approval of the Court. The cause of action occurred when Adam was 10 years old and attending a friend's birthday party on 15 September 2018. The hosts, his friend's parents, had hired a number of inflatable play devices for the entertainment and enjoyment of the children at the party. One of those apparatus was a large inflatable waterslide which had the name, which I assume was chosen without irony, Toxic Waterslide. It was a very large item. The slide itself was 20 metres long. It was 6.5 metres wide and sat at a height of approximately 9 metres. 2. As things transpired, it was a windy day and in the course of the day the wind became stronger and meteorological evidence suggests that there were gusts up to 65 kilometres per hour. In fact, a gust of that force was apparently recorded in the vicinity by the Bureau of Meteorology at 3:18 PM, and the probabilities are that it was that particular gust which dislodged the slide from its anchor, or anchors, just as Adam was at its top preparing to slide down. He was thrown off the slide backwards and as the slide was blown away, he was dragged with it for a distance of about 4 or 5 metres. He suffered significant orthopaedic injuries, the most serious of which was a compound fracture of his right ankle and compression fractures of his spinal vertebrae between T11 and L5. The most serious of those seems to be at the L2 level where there was a 25% loss of height. The serious ankle injury had to be surgically reduced. 3. The liability issues in the case have been well summarised by Ms Gumbert of learned counsel in Confidential Exhibit "A". Essentially, the expert for the plaintiff is of the opinion that the fixation of the slide to the ground was insufficient to the extent it was unsuitable for use in the high winds that developed on the day, and it should not have been left to the supervision of ordinary householders when it required a supervisor who was familiar with the risks involved in use of the equipment. The defendants' expert evidence is to a different effect. Both experts for the householders and the insurer standing in the place of the supplier, respectively, are of the view that the fixation of the slide to the ground fully complied with the relevant Australian standard. However, the opinion of the expert engaged on behalf of the insurer is that it was not unreasonable for the apparatus to be left under the supervision of the householders. The opinion of the expert engaged for the householders is to the contrary. 4. There is also a factual issue about whether a specific warning was given to the householders by text message by the supplier as the wind developed during the afternoon. I am inclined to agree with Ms Gumbert with respect that the plaintiff is likely to have the better of the liability argument were the matter to proceed to trial. Having said that, there are real issues to be determined and anyone with any passing familiarity with civil litigation is well aware of the uncertainty that always attends the outcome of a court case. There is no such thing as a plaintiff's case that cannot fail. Were that so, lawyers would have no work to do. 5. Having said that, the sum proposed for settlement is an appropriately large one and costs appropriately are to be paid separately on the ordinary basis. Without going through all of the details relating to Adam's injuries, at this stage he has made what might be regarded as a very good recovery from what were serious injuries. However, he is only 15 and all things being equal, has a long life ahead of him, and it seems appropriate allowances have been made for the contingencies which may attend his future development. 6. The evidence before me is that Adam did have some learning difficulties prior to the accident and it sems unlikely for that reason that he would be suitable to progress into a professional occupation in the future. In any event, his strong desire has been to follow his father into the family business and Mr Tyson is a successful carpenter-builder and the family also runs a farm. From a very early age, I am informed by the evidence, Adam has been involved in both ventures as much as he possibly can be. He has now left school and is apprenticed to his Dad in the carpentry trade. From Mr Tyson's affidavit I have the impression that although he is still only 15 and has a fair bit of physical maturity to acquire, he is progressing very well in his apprenticeship, and it seems likely that he will have a future in the family business. 7. No-one can foretell the future, of course, and one must bear in mind that if for some reason he is thrown upon the open labour market he will definitely be at a disadvantage, both because of his pre-existing issues and the limitation upon his employment opportunities that they bespeak, but also because of the lingering and ongoing effects of these severe injuries. His youth, according to the evidence of the orthopaedic surgeon, Dr Gehr, has worked to his advantage and hopefully there will be no bad consequences as a long-term result of the various fractures. 8. My function is to decide whether this settlement is in the plaintiff's best interests. As I have said, I have had the benefit of the very thorough and careful advice of Ms Gumbert and I have had the opportunity to read some of the material for myself. I should record that Adam's parents and sister are in court today and he is obviously going to be very well supported by his close family in the years ahead. It does seem to me that the proposed settlement does appropriately reflect both his prospects of success on liability and an appropriate amount to guard against the future contingencies. For that reason I am satisfied that the settlement is in his best interests and I propose to approve it in accordance with the provisions of s 76(4) of the Act. 9. Ms Gumbert makes an application for payment out of the net proceeds of the settlement to Adam's father for investment, probably in a suitable property, for Adam's future benefit. As I have said, there is only about two and a half years to go before Adam attains his majority and there is a risk I think, as Ms Gumbert argues, that over that short period of time the fees appropriately charged by the NSW Trustee and Guardian for management of funds is likely to deplete, rather than increase, the settlement figure. I am satisfied from the evidence I have received, and from having the opportunity to see the family sitting in the back of the Court that both of Adam's parents are appropriately responsible, sober and concerned, and could be trusted, if I can put it that way, to take on the responsibility of looking after the settlement proceeds for Adam's benefit. I have indicated that I would be prepared for those reasons to order payment out to Mr and Mrs Tyson as trustees for Adam. However, at the moment the proposal is a little lacking in shape, and I have indicated in my discussion with Ms Gumbert what I would like to see by way of a more or less specific proposal in relation to investment or management of the funds. For that reason, I propose to order payment into Court and grant liberty to the plaintiff to apply for an order for payment out on short notice. 10. As I have said, the defendants have agreed to pay the plaintiff's costs on the ordinary basis and the evidence before me indicates, as is always the case, that there will be a shortfall between solicitor and client costs and costs on the ordinary basis, and an amount has been assessed in relation to the maximum potential shortfall. There is on the evidence a discrepancy between what Mr Tyson says he had been told originally and what Ms Camus, the solicitor handling the matter, now says, but I am assured by Ms Gumbert, and I fully accept, that the difference in those figures have been fully explained to Mr Tyson. He understands the reason for the difference, and he accepts that the somewhat higher figure that Ms Camus mentions is not inappropriate. And for that reason, I propose to direct that a sum be paid out to the plaintiff's solicitors to be held in trust until the negotiation of costs on the ordinary basis, and proper costs accounting and that any balance may also be added to the funds available to Adam for investment of the net proceeds of the settlement. 11. For these reasons, as I have said, in accordance with the consent judgment handed up and signed by the solicitors for the parties, I approve the settlement under s 76 of the Act. I enter judgment for the plaintiff in accordance with paras 2 and 3 of the consent judgment. I note the order for costs in para 5 and the agreement between the parties in paras 4, 7, 8, 10 and 11 of the consent judgment. 12. I make an order in accordance with para 6 for the dismissal of the cross-claims with no order as to costs. In accordance with para 9 of the consent judgment as amended by me, I direct that the amount of judgment sums, or the balance thereof after deductions made pursuant to para 7, shall be paid into Court pursuant to s 77 of the Act within 28 days of the receipt by the defendants or their insurers of a notice form the Managing Director of Medicare Australia under ss 24 or 25 of the Health and Other Services (Compensation) Act 1995 (Cth) as amended. From the amounts paid into Court the sum of $73,000 may be paid out to Stacks Goudkamp solicitors, to be held by them in their trust account until the completion of final costs accounting. In accordance with relevant professional regulations, they are to account to the plaintiff's tutor for the sums held and any balance payable. 13. I also reserve liberty to the plaintiff by his tutor to apply for payment out of the moneys held in Court under s 77(3) of the Act on three days' notice to my associate and to the defendants. ********** 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: 21 March 2024