KELLY McCANN v. NSW SELF INSURANCE GROUP [2012] NSWSC 488

Supreme Court New South Wales

Medium Neutral Citation: KELLY McCANN v. NSW SELF INSURANCE GROUP [2012] NSWSC 488 Hearing dates: 10 May 2012 Decision date: 11 May 2012 Jurisdiction: Common Law Before: Justice Stephen Campbell Decision: 1. Declare, until further order of the Court, that under the terms of the Deed of Settlement between the parties dated 8th March 2011 and approved by this Court on 6th April 2011 in matter no. 2011/00030817, the plaintiff is entitled to and the defendant is obliged to bear the cost of, the provision of 29 hours per week of additional domestic assistance including handyman, gardening and maintenance assistance. 2. Declare, until further order of the Court, that the plaintiff is entitled to, and the defendant is obliged to bear the cost of, case management services under the provisions of the Deed dated 28th November 1986 between the parties and approved by this Court in matter no. 13500 of 1986. 3. Declare, until further of the Court, that the plaintiff is entitled to, and the defendant is obliged to bear the cost of, her nursing carers' admission fees to entertainments attended by the plaintiff, under the terms of clause 2A of the Deed between the parties dated 28th November 1986 and approved by this Court in matter no. 13500 of 1986. 4. Judgment for the plaintiff against the defendant in the sum of $12,422.22. 5. The proceeds of the judgment are to be paid to the N.S.W. Trustee & Guardian in its capacity as attorney managing the affairs of the plaintiff pursuant to s.77(3) Civil Procedure Act 2005. 6. The defendant to pay the plaintiff's costs of the proceedings on the ordinary basis. Catchwords: INSURANCE - catastrophic injury - structured settlement - construction of deed - entitlement to 29 hours care and case management services - entitlement to cost of entrance ticket for nurse or carer at recreational events -REMEDIES - declaration - discretionary nature of relief Legislation Cited: Civil Procedure Act 2005 Damages (Infants and Persons of Unsound Mind) Act 1929 (NSW) Motor Vehicles (Third Party Insurance) Act 1942 (NSW) New South Wales Self Insurance Corporation Act 2004 (NSW) Government Insurance Office (Privatisation) Act 1991 (NSW) Government Insurance Act 1927 (NSW) N.S.W Trustee and Guardian Act 2009 (NSW) Protected Estates Act 1983 (NSW) Cases Cited: Advanced Abor Services Pty Ltd v. Phung [2009] NSWSC 1331 Australian Broadcasting Commission v. Australasian Performing Right Association (1973) 129 CLR 99 Baltic Shipping Co. v. Dillon (1993) 176 CLR 344 Blanch and Others t/as Hicksons v British American Tobacco Australia Pty Ltd (2005) 62 NSWLR 653 Forster v Jododex Australia Pty Limited & Another (1972) 127 CLR 421 Griffiths v. Kerkemeyer (1977) 139 CLR 161 Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 Hide and Skin Pty Ltd v. Oceanic Meat Traders Limited (1990) 20 NSWLR 310 Jireh International Pty Ltd v. Western Export Services Inc [2011] NSWCA 137 Kars v Kars (1996) 187 CLR 354 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Redlands Bricks Limited v. Morris & Anor [1970] AC 652 Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Limited [1921] 2 AC 438 Sullivan v. Gordon (1999) 47 NSWLR 319 Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 Van Gervan v. Fenton (1992) 175 CLR 327 Category: Principal judgment Parties: Kelly McCann NSW Self Insurance Corporation Representation: Counsel: Mr. D. Stanton (Defendant) Solicitors: Mr. T.D. Kelly (Solicitor) with Mr. Watson (Solicitor) (Plaintiff) File Number(s): 11/280615 Publication restriction: None