Maez by his tutor Maez v Corbett [2015] NSWSC 102

Supreme Court New South Wales

Medium Neutral Citation: Maez by his tutor Maez v Corbett [2015] NSWSC 102 Hearing dates: 5 - 6 February 2015 Date of orders: 23 February 2015 Decision date: 23 February 2015 Jurisdiction: Common Law Before: Button J Decision: See paragraph 23. Catchwords: PRACTICE AND PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – whether proposed settlement is in the interests of the plaintiff Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76, 77(3) Motor Accidents Compensation Act 1999 (NSW), ss 83, 131 Health and Other Services (Compensation) Act 1995 (Cth), ss 21, 22(1)(a) Health and Other Services (Compensation) Care Charge Act 1995 (Cth) Cases Cited: Fisher by her tutor Fisher v Marin [2008] NSWSC 1357 Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298 Permanent Trustees v Mills [2007] NSWSC 336; (2007) 71 NSWLR 1 Category: Principal judgment Parties: Frank Maez (Plaintiff) Karen Corbett (Defendant) Representation: Counsel: P Frame (Plaintiff)

Solicitors: Lex Fori Lawyers (Plaintiff) Curwoods Lawyers (Defendant) File Number(s): 2013/341338

Judgment 1. This is an application for approval of a settlement brought pursuant to s 76 of the Civil Procedure Act 2005 (NSW) (the Act). Approval is required because the plaintiff, who sues through his tutor, his father, was born on 10 October 2005, and accordingly is nine years of age. 2. Counsel for the plaintiff read two affidavits in support of the application. The first was sworn by his instructing solicitor, and sets out a very useful summary of the medical evidence, and annexes all relevant reports. It also explains the basis upon which the solicitor has come to the view that the settlement is appropriate in the interests of his client. 3. The second affidavit was sworn by the father of the plaintiff, and expresses his own understanding of the basis upon which the legal advisers of his son have advised that the settlement is an appropriate one. The tutor expresses his own satisfaction with the course proposed. 4. The third and final document placed before me was a confidential exhibit that constitutes a brief outline of the basis upon which counsel for the plaintiff is of the view that the proposed settlement should be accepted by his client. 5. The background of the application may be shortly stated. At about 3:30 pm on 10 January 2013, the plaintiff, then aged six years and some months, was playing on the footpath of a suburban street. As children are wont to do, he impetuously ran onto the road and was struck by a car. An ambulance was promptly called, and he was taken to hospital. The plaintiff had suffered serious injuries to his teeth, a number of lacerations to his face, an undisplaced fracture of the upper spine, and an undisplaced fracture of the left elbow. 6. The plaintiff remained in an intensive care unit for one day, and thereafter in hospital for six weeks. An operation was performed on 11 January 2012 with regard to a laceration to his lip and the injuries to his teeth. As one would imagine, the injuries suffered by this young boy were painful. The whole experience distressed him, and shortly after the collision he suffered from an acute stress disorder. 7. Thankfully, all of the injuries to which I have referred have resolved. The plaintiff is no longer in pain, and the stress of the accident has very much subsided. His elbow has healed and is fully functional, although there is a little scaring. The same may be said of his face and upper spine. 8. As for the significant injuries to his teeth, as one would expect of a boy of his age, they were to his deciduous "milk" teeth. The result is that, although at one stage it was thought that there could be very significant dental expenses in the future, that is no longer the case. To the contrary, it is now thought that, if there is to be any long-term dental problem as a result of the accident, it will be a minor one. 9. There was at one stage a separate cause for concern. After the accident, it became clear that the plaintiff was suffering from significant cognitive deficits. He continues to do so, and they will be permanent. A great deal of investigation has been undertaken as to whether those deficits could have been caused by the collision. In particular, many experts have been consulted as to whether or not the plaintiff could have suffered a brain injury as a result of the collision, and whether it could be such an injury that has caused the deficits. 10. The evidence placed before me shows that the unanimous opinion of the experts is that the balance of probabilities favours the proposition that the cognitive deficits of the plaintiff are the result, not of a brain injury, but rather of a developmental disability. Whilst it is quite correct to say that the plaintiff has been diagnosed with a mild to moderate intellectual disability, no expert is of the view that it was caused by the collision; indeed, many experts are of the view that it was not. 11. That final issue having been resolved, the evidence establishes that the plaintiff has suffered no substantial long-term consequences of the collision. 12. Counsel for the plaintiff helpfully analysed before me the various potential heads of damage as follows. 13. Because the whole person impairment of the plaintiff certainly falls below 10 per cent, pursuant to s 131 of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff is not entitled to recover damages for non-economic loss. 14. The plaintiff has suffered no past loss of earnings. 15. He will suffer no future loss of earnings caused by the accident. 16. Medical expenses in the past occasioned by the collision have been met by the defendant. Medical expenses in the future (if any) are expected to be small, and the settlement sum is intended to reflect them. 17. In the circumstances of this case, there can be no question of aggravated or exemplary damages. 18. The final piece of material placed before me that I should mention is that counsel for the plaintiff (on my enquiry, and not immodestly) explained that he has a deep and long-standing experience in this area of law. He also explained that his instructing solicitor, though somewhat less experienced, has been practising in this field for many years. 19. Turning to the test that I am called upon to apply, it is well established and free from intricacy. It may be stated simply as being whether I am satisfied that the settlement is beneficial to the interests of the plaintiff under incapacity: see Permanent Trustees v Mills [2007] NSWSC 336; (2007) 71 NSWLR 1 at [19] (Hammerschlag J); Fisher by her tutor Fisher v Marin [2008] NSWSC 1357 at [29] and [41] (Rothman J); and Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298 at [2] (Allsop P). 20. To state my view simply, I think that the settlement reached in the sum of $60,000 "clear" soundly protects the interests of the plaintiff. In the circumstances that I have set out, I think that it amply guards against the reasonably remote possibility of orthopaedic or dental problems arising. 21. Quite apart from that, there is nothing to suggest that the tutor of the plaintiff is motivated by anything other than love and concern for the best interests of his young son. He expresses his contentment with the settlement, having being advised about it by a solicitor and member of the Bar expert in this field. Whilst the views of the tutor and his legal advisers are of course not determinative of my approval, I consider that, in the circumstances I have outlined, they should be given substantial weight. 22. For the foregoing reasons, I propose to make the orders that were provided to me in draft form at the hearing of the application. Counsel for the plaintiff took me through the intricacies of their various ancillary aspects, and his submissions about them lead me to be satisfied that they are unexceptionable and are in no way adverse to the interests of the plaintiff.