Bell v State of New South Wales [2015] NSWSC 1591

Supreme Court New South Wales

Medium Neutral Citation: Bell v State of New South Wales [2015] NSWSC 1591 Hearing dates: 22 October 2015 Decision date: 29 October 2015 Jurisdiction: Common Law Before: Button J Decision: (1) Pursuant to s 76 of the Civil Procedure Act 2005 (NSW) the settlement is approved. (2) The Court orders that the defendant is to pay the sum of $xxxxxx less the current Medicare charge of $xxxx into court pending further order of the Supreme Court Equity Division as to appointment of a financial manager. (3) The defendant pay the plaintiff's costs as agreed or assessed. 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), s 76 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: Matthew Bell (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: S Longhurst (Plaintiff) J Ryan (Defendant)

Solicitors: Slater and Gordon (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2010/150893

Judgment 1. This is an application for approval of a settlement in personal injury proceedings commenced on behalf of the plaintiff by his tutor. The approval is sought pursuant to s 76 of the Civil Procedure Act 2005 (NSW). Background 1. The background is as follows. Matthew Luke Bell, the plaintiff, was born in July 1988, and is now 27 years of age. After the advent of a severe epileptic fit when he was aged six, he has suffered from very profound disabilities. They include an inability to communicate through words, though those who are close to him are able to read his moods, and to understand him to some degree. 2. As one would expect, his care has been a very great challenge to his parents over the years. In the past, they took advantage of respite care offered by the Department of Ageing, Disability and Home Care. 3. On 4 June 2009, the plaintiff was in respite care pursuant to that arrangement. Regrettably, another resident of the care facility who suffers from severe autism attacked the plaintiff and inflicted physical injuries upon him. The case for the plaintiff is, in a nutshell, that the defendant was negligent in permitting that to happen, and that the plaintiff suffered longstanding psychological consequences, including Post Traumatic Stress Disorder (PTSD), as a result. 4. In due course, the plaintiff filed a statement of claim in the District Court on 22 June 2010. The matter was subsequently transferred to this Court on 9 July 2013. A defence was filed, but the matter was eventually resolved at a mediation on 18 September 2015. It is that resolution that requires my approval. Evidence and submissions 1. The plaintiff, of course, is not in a position to play any role in assessing the appropriateness of the settlement. As for others, in a very detailed affidavit his father, Mr Simon Bell, has set out the background of the whole matter, including the loving care that he and his wife have provided to the plaintiff over the years. Mr Bell, as tutor, expresses his personal contentment with the settlement, having received advice from the solicitor of his son, along with the advice of junior and senior counsel. 2. There is not the slightest evidence to suggest that, in accepting the settlement, Mr Bell is motivated by anything other than the best interests of his son. 3. An affidavit of Mr Legzdin, solicitor, was also read in support of the application. It sets out the forensic background in helpful detail, and also confirms that Mr Legzdin is quite content with the settlement as well. 4. The final documentary exhibit was confidential exhibit A, that being a written advice from junior counsel who appeared on the application before me. As is usual, that document was tendered without it having been made available to the defendant. Of course, I shall not breach that confidentiality by analysing its contents in detail. But suffice to say it sounds a note of caution with regard to the claim. Apart from anything else, the plaintiff is self-evidently incapable of giving evidence about any aspect of the matter, including what actually occurred on the day in question, and also of his psychological state before and after the assault. 5. Junior counsel for the plaintiff, in oral submissions, explained what the practical result would be if I were to approve the settlement. He explained that there will be a substantial lump sum, along with regular payments permitting respite care into the future. He also explained that those payments would only come to an end once the National Disability Insurance Scheme (NDIS) commences to the benefit of the plaintiff. 6. Finally, the solicitor for the defendant submitted simply that the settlement should be approved, and contradicted nothing said on behalf of the plaintiff. Determination 1. Turning to my determination, the principles upon which such an application needs to be considered are well-established and free from intricacy. Suffice to say that the test to be applied is 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). 2. In short, I consider that the cautious approach by those representing the plaintiff adopted in this case is a sound one, in light of the inherent evidential difficulties in the matter. I also infer that all lawyers instructed or briefed for the plaintiff have a substantial degree of expertise in this area. And I repeat my satisfaction that the tutor is motivated by nothing other than love for his son. 3. In those circumstances, I accept the joint submission of the parties that I should approve the settlement, and make the three orders contained in the document headed "Consent Judgment" that was helpfully provided to my Associate before the hearing. Orders 1. I make the following orders: 1. Pursuant to s 76 of the Civil Procedure Act 2005 (NSW) the settlement is approved. 2. The Court orders that the defendant is to pay the sum of $xxxxxx less the current Medicare charge of $xxx into court pending further order of the Supreme Court Equity Division as to appointment of a financial manager. 3. The defendant pay the plaintiff's costs as agreed or assessed.