Supreme Court New South Wales Medium Neutral Citation: Curtis v Harden Shire Council [2016] NSWSC 82 Hearing dates: 16 February 2016 Decision date: 17 February 2016 Jurisdiction: Common Law Before: Button J Decision: See paragraph 24. Catchwords: PRACTICE AND PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of persons under legal incapacity – whether proposed settlement is in the interests of the plaintiffs Legislation Cited: Civil Procedure Act 2005 (NSW), s 76, s 77 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: Procedural and other rulings Parties: John Curtis (Plaintiff) John Curtis on behalf of Jasmine Patterson, Jacob Patterson, Angus Curtis, and Emily Curtis (Plaintiff) Harden Shire Council (Defendant) Representation: Counsel: R Taylor (Plaintiff) Solicitors: McCabe Partners Lawyers (Plaintiff) Mills Oakley (Defendant) File Number(s): 2007/293512; 2007/293513 Judgment 1. This is an application for approval of a settlement, brought pursuant to s 76 of the Civil Procedure Act 2005 (NSW). The application is required because two of the plaintiffs are under the age of 18 years, and appear by their father, Mr John Curtis, as tutor. 2. The background may be shortly stated. The late Ms Debbie-Anne Paterson, wife of Mr Curtis and mother of Emily, Angus, Jacob and Jasmine, was involved in a single motor vehicle accident on 20 August 2004. The accident occurred after a road maintenance works program performed on a rural highway, and Ms Patterson lost control of her vehicle, which collided with a tree. Tragically, she passed away on 2 September 2004. 3. In due course, proceedings were brought by the plaintiffs, claiming for loss of expectation of financial benefit, and cost of care, supervision and domestic services to replace services which would have been provided by the deceased. To a large degree, the claims of the children of the deceased are dependent upon their ages at the time of the death of their mother, and how many months and years they were away from turning 18. 4. At first instance, liability was successfully denied by the defendant, the Council responsible for the road works. On appeal, the New South Wales Court of Appeal quashed the verdict for the defendant and entered verdicts for the plaintiffs. An application for special leave to appeal to the High Court of Australia by the defendant was successfully resisted by the plaintiffs. Eventually, the pending issue of quantum was resolved by the settlement under discussion. 5. An affidavit of the solicitor for the plaintiffs was read before me, in which it was deposed that each of the adult plaintiffs, and Mr Curtis as tutor for the plaintiffs who are children, has had the terms of settlement fully explained, and are perfectly content with them. There are affidavits of the three adult plaintiffs to identical effect. 6. Counsel, who appeared before me, is similarly very content with the settlement. He by no means has come into the matter at the last minute; to the contrary, he has been involved almost from the commencement of the proceedings. 7. The affidavit of the solicitor explains that there are a number of considerations that underpin his firm opinion that the offer should be accepted, even though it is a substantial discount upon the sum claimed in the schedule of damages of the plaintiffs, which was also placed before me. Those considerations are as follows. 8. First, the claim is partly based upon the thesis that the weekly income of the deceased would have increased substantially were it not for the fatal accident. But that hypothesis is, of its nature, open to question. 9. Secondly, the submission of the defendant that, if the deceased had worked longer hours, she may well have provided less non-financial support to her family (simply by way of the limited number of hours in a day), may have some force, with the effect that part of the claim of the plaintiffs may be open to a valid criticism of "double counting". 10. Thirdly, it is not beyond dispute that the dependency of the claimants who were children at the time of the death of their mother may have ended before they attained the age of 18 years, with a concomitant reduction in their claims. 11. Fourthly, there is a clear divergence of expert opinion between accountants as to the monetary loss that has been suffered by the plaintiffs. There is also divergence in the expert opinions of occupational therapists with regard to the loss, expressed in financial terms, that the plaintiffs suffered as a result of not having the benefit of the services of the deceased. 12. I was told from the Bar table that counsel agrees with the analysis of the solicitor, and also agrees that those four potentially adverse factors sound a loud note of caution. I also had the benefit of a confidential advice of counsel for the plaintiffs. I shall not refer to it, except to say that it confirms that the opinion of counsel is that the claims require a degree of professional reticence. 13. As can be seen from the orders I have been asked to make, the settlement sum is proposed to be divided by way of percentages between the five plaintiffs. It was explained by counsel that those calculations are a reflection of the years of likely dependency of each of the plaintiffs, and are not based on subjective or impressionistic matters. 14. It was also pointed out that the sum payable to the two plaintiffs who are children will be held on trust by the NSW Trustee and Guardian; I was told that there is nothing to suggest that any other plaintiff is under a disability. 15. Finally, I was told that both the firm of solicitors and counsel briefed have an experience in claims of this kind that extends over many years. 16. Turning to my determination, the test is well established and free from complication: it is simply 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). I am satisfied of that proposition, for the following reasons. 17. First, I respectfully consider that the lawyers involved are appropriately qualified to advise on such a significant sum, and have given due consideration to it. 18. Secondly, there is nothing to suggest that Mr Curtis, as tutor for two of the plaintiffs, is motivated by anything other than love for them and a desire to act in their best interests. 19. Thirdly, for the reasons given by the solicitor and concurred in by counsel, I think it appropriate that the claim be approached with a degree of responsible caution. 20. Fourthly, quite apart from that, one can understand why the plaintiffs themselves would wish to avoid, if appropriate, a full-blown hearing, with its possible adverse consequences. 21. Fifthly, I am satisfied that the percentage apportionments, founded as they are on objective calculations rather than subjective considerations, are appropriate. 22. For all of those reasons, I propose to approve the settlement, and make the consent orders that have been placed before me. That includes, of course, the orders that the sums payable to the two children be held on trust by the NSW Trustee and Guardian. 23. Finally, I am content to make the order, commonly sought, that the quantum of settlement is not to be disclosed. 24. I make the following orders by consent: 1. Judgment for the Plaintiffs against the Defendant in the sum of $XXX (the Agreed Sum). 2. The Agreed Sum is to be apportioned between the Plaintiffs as follows: (a) John Curtis: XX% $XXX (b) Jasmine Paterson: XX% $XXX (c) Jacob Paterson: XX% $XXX (d) Angus Curtis: XX% $XXX (e) Emily Curtis: XX% $XXX 1. The Defendant to pay the Plaintiffs' costs of the proceedings, agreed in the sum of $XXX. 2. The funds for Angus Curtis and Emily Curtis are to be paid to the NSW Trustee & Guardian pursuant to s 77 of the Civil Procedure Act 2005 and to be held in trust, by the Public Trustee for the benefit of Angus Curtis and Emily Curtis until they attain 18 years. 3. The parties agree they will not disclose the terms of this Consent Judgment except as required by law or with the express agreement of the other party. 4. The Directions hearing of 26 February 2016 is vacated. 5. The Hearing of 11 to 15 April 2016 in Supreme Court Proceedings numbers 2007/293512 and 2007/293513 is vacated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2016