Mahfoud v State of New South Wales [2014] NSWSC 438

Supreme Court New South Wales

Medium Neutral Citation: Mahfoud v State of New South Wales [2014] NSWSC 438 Hearing dates: 3 April 2014 Decision date: 03 April 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: Settlement approved. Catchwords: INFANT SETTLEMENT - approval - settlement reflects acceptance that liability in dispute - no question of principle. Legislation Cited: - Civil Procedure Act 2005 (NSW), s 76(1), 76(3) Category: Principal judgment Parties: Ahmed Mahfoud bhnf Jehan Hussein (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Dr A.S. Morrison SC (Plaintiff) M. Fordham SC (Defendant) Solicitors: Matthews Folbigg (Plaintiff) Hicksons (Defendant) File Number(s): 2011/413165

ex tempore Judgment 1Before me is an application for the Court to approve a compromise between the parties in accordance with s 76(3) of the Civil Procedure Act 2005 (NSW). 2The plaintiff was born on 12 June 1996 and for that reason is under a legal incapacity (see s 76(1)(a)). There is also evidence that he is incapable of managing his own affairs (s 76(1)(c)). 3On 23 December 2011 the plaintiff, with his mother acting as his tutor, commenced these proceedings. The plaintiff sued the State of New South Wales as the legal entity responsible for the "care, control and management" of Condell Park High School. The plaintiff enrolled in that school in 2010 when he was in Year 9. 4The further amended statement of claim pleads that throughout 2010 and into 2011 he was subjected to continuous and, in some respects, severe instances of bullying by other students. This was said to have included physical assaults including assaults committed around Easter 2010, and on or about 6 September 2010, 13 October 2010 and 17 February 2011. 5The incident on 6 September 2010 is said to have been the worst aspect of the conduct that he was subjected to. It is said to have involved him being bashed by a group of students. He suffered a fractured left clavicle. He has also pleaded that on 13 October 2010 he was further assaulted which led to a back injury and an aggravation of a shoulder injury he suffered in a previous assault. 6The proposed settlement involves a compromise under which there would be a payment of $750,000.00 together with an agreed amount of costs of $190,000.00. An affidavit from the plaintiff's solicitors states that, after deduction of various medical expenses and similar fees as well as the solicitor/client component of his costs, the net amount retained for the plaintiff is expected to be $640,000.00. 7As stated, the plaintiff's tutor is his mother. She has sworn an affidavit stating that she consents and agrees to settlement on those terms. She also expresses a concern that the on-going pursuit of these proceedings would not be in her son's best interests. 8As is the usual course, both parties tendered material to assist the Court in determining whether the settlement should be approved. I have had the opportunity to read that material in advance of today's hearing and I will briefly describe some of it. 9Each party tendered a report from a person with expertise in dealing with the approach of educational authorities to preventing and responding to instances of bullying in schools. It is to be remembered that the plaintiff's case involved an attempt to fix the defendant with legal responsibility for the actions, which were in some respects criminal, of third parties. It suffices to note that each expert appears to have been given different factual information about what bullying occurred, what the plaintiff's role in it was, what the school staff were aware of and how they responded. It is evident from this material that, if the trial proceeded, there was likely to be a vigorous dispute about all of those matters as well as a sustained attack on the plaintiff's credit. 10As an example, one of the defendant's medical reports recites the contents of some CCTV footage taken at the high school on 13 October 2010 which is said by the defendant to be inconsistent with the plaintiff's version of events. 11The parties also tendered reports from orthopaedic surgeons. There is no doubt he suffered a fractured left clavicle as a result of an incident at the school on 6 September 2010. The plaintiff's orthopaedic surgeon, Dr Dixon, stated he also suffered from spondylolisthesis as a result of the attack. However this was disputed by the defendant's orthopaedic surgeon, Dr Stephens. Dr Stephens accepted there was such a condition but stated that it was not related to the incidents of 6 September 2010 and 13 October 2010. This conclusion appears to be based on the CCTV footage to which I have referred. 12The parties also tendered psychiatric and psychological evidence. All of the reports recounted the plaintiff displaying substantial psychiatric symptoms, including that he has become almost a complete recluse never leaving his home and with little or no outside interests. 13The plaintiff's psychiatrist diagnosed severe major depression illness. The defendant's psychiatrist considered the instances of bullying may have aggravated a pre-existing psychological disorder. 14The psychologist retained by the defendant appears to have undertaken` an exhaustive analysis of his pre-existing school performance and behaviour. That analysis appears to inform the defendant's position that almost every factual contention made by the plaintiff in support of his case was in issue. 15The material from the plaintiff also included a report from an occupational therapist indicating that he required a very high level of care at least in the next few years. This was very much disputed by the defendant's material. It struck me as more of an ambit claim than a realistic assessment. 16The material provided by the plaintiff suggests there was a strong case for the plaintiff establishing some substantial economic loss. There is some material capable of suggesting that he was managing an adequate level of performance at school prior to attending the subject high school, although that is put in dispute by the material outlined in the psychologist's report that I have referred to. 17In 2011 the plaintiff left the high school. In 2012 he enrolled in TAFE but he has struggled. Dr Dixon states the plaintiff is unlikely to be able to perform manual work. 18I was also provided with a number of opinions from the very experienced senior counsel who appears on behalf of the plaintiff. I will not delve into the details of those opinions, but suffice to say they set out a proper basis for recommending that the matter be compromised on the terms that are proposed. 19The material that has been provided concerning the effects of the incidents as recounted by the plaintiff suggests that they have had a very significant effect on his life and his future. It seems to me if he succeeded on every aspect of his case and, if it was accepted in its entirety, it is likely that the damages he would recover would exceed to a reasonably significant level the proposed settlement. However that is a very big "if". Overall, the material suggests that there are significant obstacles in the way of the plaintiff succeeding on liability and, even if he did succeed, there are a number of permutations and findings which could reduce the damages to a figure around or below the amount that is proposed to be paid. 20In those circumstances the Court can well understand the plaintiff's mother's assessment that a trial would not be in his best interests. The settlement allows the plaintiff to trade in the present uncertainty surrounding his future for certainty and move on with his life. I consider that it should be approved. 21Accordingly the Court will make orders 1 and 2 in the document titled "Order" which will be signed, dated today and placed with the papers. The Court will also make order 1 in the document now marked "Order Part 2" which will be signed, dated today and placed with the papers.