Cho v State of New South Wales [2015] NSWSC 882

Supreme Court New South Wales

Medium Neutral Citation: Cho v State of New South Wales [2015] NSWSC 882 Hearing dates: 2 July 2015 Decision date: 02 July 2015 Jurisdiction: Common Law Before: Adamson J Decision: By consent: 1. Order the plaintiff to pay the sum of $10,000.00 into a Trust account on account of Amanda Cho pending her attaining the age of eighteen (18) years. 2. Judgment for the defendant. 3. Each party to bear his or its own costs of the proceedings. 4. Approve the settlement of the proceedings pursuant to s 77(3) Civil Procedure Act 2005 (NSW), such approval being required as Amanda Cho is a minor. Catchwords: INFANT SETTLEMENT – no question of principle – settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW) ss 76, 77 Compensation to Relatives Act 1897 (NSW) NSW Trustee and Guardianship Act 2009 (NSW) Category: Principal judgment Parties: Henry Van Tien Cho (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: M Cranitch SC (Plaintiff) C Faunt (Solicitor) (Defendant)

Solicitors: Donald Bedford Courtenay Poulden (Plaintiff) Hicksons Lawyers (Defendant) File Number(s): 2015/61712

Judgment: Ex tempore

Introduction 1. On 19 May 2011, Raymond Cho (the deceased) died of anaphylactic shock at school as a result of eating a biscuit that contained nuts. The plaintiff, the deceased's father, brought the present proceedings under the Compensation to Relatives Act 1897 (NSW) on his own behalf and on behalf of his wife, Kuan Lian Cho, and his daughters Fiona Cho and Amanda Cho (the Compensation to Relatives Proceedings). 2. Members of the deceased's family have also brought separate claims against the defendant for damages for nervous shock (the Nervous Shock Proceedings). Both sets of proceedings allege that the defendant's negligence caused the deceased's death. At the time of the deceased's death, Amanda was five years old. 3. I note that the Nervous Shock Proceedings in respect of the deceased's father, mother and sister, Fiona, have already been resolved by the payment of substantial sums. The Nervous Shock Proceedings in respect of Amanda Cho have not yet resolved as her condition has not yet stabilised. 4. By notice of motion filed on 26 June 2015, the plaintiff, Henry Cho, sought orders that this Court approve a proposed consent order and order that the sum of $10,000 be paid by him into a trust account on account of Amanda Cho, his youngest daughter, pending her attaining the age of 18 years. The proposed consent order is that there be judgment for the defendant and that each party bear his or its own costs of the proceedings. The purpose of these orders is to resolve Amanda Cho's rights under the Compensation to Relatives Act. 5. This Court's approval is required as Amanda Cho is still a minor and therefore under a legal incapacity: Civil Procedure Act 2005 (NSW), s 76.