Morrissey bhnf McMahon v McMahon [2015] NSWSC 624

Supreme Court New South Wales

Medium Neutral Citation: Morrissey bhnf McMahon v McMahon [2015] NSWSC 624 Hearing dates: 12 December 2014 Date of orders: 12 December 2014 Decision date: 25 May 2015 Jurisdiction: Common Law Before: Wilson J Decision: Settlement approved subject to consent judgment Catchwords: PROCEDURE - settlement approval - order for settlement approval - order made Legislation Cited: Civil Procedure Act 2005 (NSW) Motor Accident Compensation Act 1999 (NSW) Cases Cited: Fairhurst v Fairhurst [2012] NSWSC 388 Category: Principal judgment Parties: Emily Maree Morrissey bhnf Deborah Lee-Anne McMahon (Plaintiff) Jessica Maree McMahon (Defendant) Representation: Counsel: L Brazel (Plaintiff) E Ferguson (Defendant)

Solicitors: Clayton James Solicitor (Plaintiff) Moray & Agnew (Defendant) File Number(s): (2011/327068)

Judgment 1. The plaintiff in these proceedings was born on 4 July 2007 and is thus a person under legal incapacity within the meaning set out by s 3 of the Civil Procedure Act 2005 (NSW) (the Act). She is a person to whom s 76(1)(a) of the Act applies. The plaintiff is represented by her tutor, Deborah Lee-Anne McMahon, who is her maternal grandmother. 2. By motion filed on 9 December 2014, approval was sought of an agreement reached between the parties in settlement of the plaintiff's claim. The motion was supported by affidavits sworn by the plaintiff's tutor, Deborah Lee-Anne McMahon and the plaintiff's solicitor, Clayton James. 3. That evidence establishes that on 28 August 2008 the defendant had a motor vehicle crash at a time when the infant plaintiff was located in the rear passenger seat of the car. The crash was reported to the police on the same day and an insurance claim was filed within one month of the accident. The insurer admitted liability on 9 December 2008. An application for exemption was granted on 23 August 2011 by the Claims Assessment and Review Service. 4. On 13 October 2011, the plaintiff, by her tutor, Deborah Lee-Anne McMahon, filed a statement of claim seeking damages pursuant to the Motor Accidents Compensation Act 1999. The statement of claim pleads that the accident occurred as a result of the defendant's negligence and thay, as a result of the collision, the plaintiff sustained injury, loss, and damage.