Troy William Evans v Northern NSW Local Health District & Ors [2014] NSWSC 1683

Supreme Court New South Wales

Medium Neutral Citation: Troy William Evans v Northern NSW Local Health District & Ors [2014] NSWSC 1683 Hearing dates: 25 November 2014 Decision date: 25 November 2014 Jurisdiction: Common Law Before: Wilson J Decision: Settlement of the Proceedings and the proposed apportionment of the settlement sum approved. Catchwords: CLAIM under Compensation to Relatives Act 1897 - proceedings settled - apportionment of settlement sum between plaintiff and three children - evidence of actuaries - as to apportionment - HELD: settlement sum apportioned in accordance with proposal of the parties. PROCEDURE - action commenced on behalf of children - proceedings settled - court approval of settlement requires pursuant to s.76 Civil Procedure Act - HELD: settlement approved. Legislation Cited: Compensation to Relatives Act 1897 Civil Procedure Act 2005 Category: Principal judgment Parties: Troy William Evans (Plaintiff) Northern NSW Local Health District (First Defendant) Clifton T Washaya (Second Defendant) NSW Ambulance Service (Third Defendant) Representation: Counsel: I D Roberts SC (Plaintiff)

Solicitors: Pollack Greening & Hampshire (Plaintiff) K Kumar – Hicksons (Defendants) File Number(s): 2012/380871

Judgment 1On 25 January 2012 Stacey Lee Armstrong died at the Lismore Base Hospital. 2The plaintiff, Troy William Evans, subsequently commenced an action for damages for the nervous shock he suffered on the death of his partner, Ms. Armstrong. He also sought damages on his own behalf and on behalf of his three children, pursuant to the Compensation to Relatives Act 1897. Each of the children is a person under legal capacity. 3The defendants are the Northern NSW Local Area Health District, Dr. Clifton Washaya, and the Ambulance Service of New South Wales. 4The defendants have admitted liability in respect of the plaintiff's claim and an amount payable as damages to the plaintiff has been agreed between the parties. Pursuant to s.76 of the Civil Procedure Act 2005 (NSW) the Court has approved the Consent Judgment filed by the parties, the precise terms of which are confidential, except where disclosure is required by law. 5There remains the question of apportionment of damages between the plaintiff and each of the three children. 6In submitting to the Court a proposal for the apportionment of the settlement monies the plaintiff relied upon his own affidavit of 23 November 2014 and that of his solicitor, of the same date. Two memoranda of advice from Senior Counsel to the plaintiff were tendered (Exhibit A). The parties had obtained, and relied upon, expert actuarial opinion as to the services that Ms. Armstrong could have been expected to render to her partner and the children into the future, and the anticipated value of such services. 7The Court's approval of the proposed settlement of the Compensation to Relatives Act 1897 proceedings is required because the plaintiff's children, all of whom were dependent to some degree upon Ms. Armstrong (even though the two eldest children were not her natural children), are under legal capacity. 8The proposal placed before the Court is based upon expert assessment of the circumstances of the plaintiff and the children, together with a prediction (which is as realistic as is possible) of the impact into the future of Ms. Armstrong's death upon them. On the evidence before the Court it appears to be a reasonable proposal. I am satisfied that I can do no better than to adopt and approve the proposed apportionment. 9Accordingly, judgment for the plaintiff against the defendants is entered, as set out in the Judgment Order. Approval of the proposed apportionment as set out in Exhibit A and noted in the Consent Orders is given.