Lampson & Ors v McKendry & Ors [2002] NSWSC 1015

New South Wales Supreme Court

CITATION : Lampson & Ors v McKendry & Ors [2002] NSWSC 1015 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20477/96 HEARING DATE(S) : 4 October 2002 JUDGMENT DATE : 4 October 2002

Justin Adam Lampson by his tutor John Douglas Jones Cindy Lee Jones Joshua John Lampson PARTIES : Dr Anthony McKendry Dr G W Moore Macquarie Area Health Service The Public Trustee JUDGMENT OF : Sperling J at 1

COUNSEL : Mr K Odgers for the Plaintiffs Mr G Salier (Solicitor) for the Public Trustee SOLICITORS : Coode & Corry Solicitors for the Plaintiffs Gordon A Salier Solicitor for the Public Trustee CATCHWORDS : Infant's Settlement - no question of principle DECISION : See paragraph 9.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Professional Negligence List

Sperling J

Friday, 4 October 2002

20477/96 Justin Adam Lampson & Ors v Dr Anthony Mckendry & Ors

Judgment 1 Sperling J: This application relates to proceedings in which a settlement of some $3.5 million was obtained in favour of a child, Justin Adam Lampson. 2 The applicant is the tutor and grandfather of the child, that is Mr J D Jones. The mother of the child is Ms Cindy Lee Jones. 3 Mr Jones has provided assistance both personal and financial. For present purposes, I refer specifically to financial assistance in relation to the child and in relation to the proceedings which resulted in a settlement. 4 Mr Jones and his wife lived on a residential property which they owned at the time when the proceedings were instituted. It is unnecessary for me to mention specific amounts. They contributed significantly to medico-legal costs in relation to the proceedings. They sold their residential property. They lived for a time in a caravan and for a time in rented premises. During that period, which preceded the settlement, Ms Jones and the child resided with them for some two and a half years without payment of rent. Mr Jones contributed additional funds by way of household expenses incurred due to the child's disabilities, the purchase of successive motor vehicles, which were necessary to enable her to meet the child's needs, and cash payments were also made to Ms Jones to assist her in the care of the child. 5 There are some factors which are difficult to assess with precision. Mr Jones and his wife appear to have suffered a loss of capital gain in relation to the house property that was sold and were also deprived of the opportunity of setting up in business as fruit growers, which was a plan on foot at the time when their property was sold. 6 Mr Jones and his wife now wish to reinstate their domestic arrangements by the purchase of another property and for that purpose look to a payment from the fund obtained by settlement of the child's claim for reimbursement of what they have contributed or partially so. 7 The claim is for $120,000 which seems to me to be sufficiently justified by the evidence. The claim made in the notice of motion is, one, that the Public Trustee pay to Mr Jones the sum of $120,000 from moneys held in trust by the Public Trustee on behalf of the child and, two, that the costs of the motion be paid from trust moneys held by the Public Trustee on behalf of the child. 8 Mr Salier, who appears today for the Public Trustee, does not consent to or oppose the application. 9 For the reasons I have given, I make orders pursuant to paragraphs 1 and 2 of the notice of motion. -oOo-