Shaw v Shaw [2016] NSWSC 1776

Supreme Court New South Wales

Medium Neutral Citation: Shaw v Shaw [2016] NSWSC 1776 Hearing dates: 9 December 2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Jurisdiction: Common Law Before: Schmidt J Decision: The settlement is approved by the Court Catchwords: PROCEDURE – settlement approval – orders made Legislation Cited: Civil Procedure Act 2005 (NSW) Civil Liability Act 2002 (NSW) Cases Cited: Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357 Category: Consequential orders (other than Costs) Parties: Sid Shaw by his tutor Emma Shaw (Plaintiff) Stephen Shaw (First defendant) Kate Shaw (Second defendant) Representation: Counsel: Mr M J Perry (Plaintiff)

Solicitors: Fishburn Watson O'Brien (Plaintiff) HWL Ebsworth Lawyers (First and Second Defendants) File Number(s): 2014/00018173-1 Publication restriction: Nil

Judgment 1. In this matter, the Court's approval of a settlement is sought under s 76 of the Civil Procedure Act 2005 (NSW), which empowers the Court to approve settlements arrived at in cases where a person is under legal incapacity, as it is common ground the plaintiff is, given his age. 2. As explained by Rothman J in Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357 at [29], the Court's jurisdiction to approve a settlement is protective and "the overriding principle is that the Court will base the approval or disapproval upon the formation of an opinion that the agreement is or is not beneficial to the interests of the person under the incapacity". That is a matter for the Court to determine. 3. The proceedings were brought in negligence against other members of the plaintiff's family, following an accident in which he was injured, when aged 12 years, while being towed by ski rope behind a vessel, while riding a knee board, which had no fins. The boat attempted a U-turn and the plaintiff was whipped toward the shore line, with the result that he struck a tree on the bank, sustaining various bodily injuries, as well as a traumatic brain injury. He still suffers the consequences of those injuries, despite considerable rehabilitation, now being aged 17 years. Some of his injuries have had a permanent impact upon him. 4. The proceedings were defended. In issue were factual and other matters, including liability; whether the accident was the result of the materialisation of an obvious risk to which s 5L of the Civil Liability Act 2002 (NSW) applied; contributory negligence; and damages. 5. There is affidavit evidence from the plaintiff's tutor, his mother, as to the advice received about a settlement reached at a Court-ordered settlement conference, including as to the risks of the litigation, given the issues lying between the parties, and the consequences for the plaintiff of the acceptance of the offer. Both his mother and the plaintiff himself understand the advice they have received and favour settlement on the terms agreed, over the risks involved in any trial. 6. There is also affidavit evidence from the plaintiff's solicitor, Ms Hilton, as to the costs and disbursements which the plaintiff has incurred in the proceedings; statutory and other deductions which would have to be made from the settlement sum; and the resulting funds available to be invested for the plaintiff's benefit, with the NSW Trustee & Guardian, until he turns 18 in eight months' time; as well as the consequences of such an investment. 7. In evidence is also confidential advice given by the plaintiff's counsel, Mr Perry, as to the terms of the settlement, to which was also annexed extracts from relevant medical reports. 8. Having considered all that I have discussed, I am satisfied that the Court's approval of the settlement must be given. There is here a real risk that the plaintiff will not succeed at trial, or that there will be a finding of some, albeit limited, contributory negligence, which has been appropriately reflected in the compromise which the parties have reached. The compromise also reflects departures from some claims, but they reflect aspects of the evidence which would be led at trial, including as to the consequences of the plaintiff's admirable pursuit of rehabilitation, which on the expert reports has been of real benefit to him and his future health and earning capacity. 9. When all of these matters are considered together with what a trial would involve for this plaintiff, when compared to the obvious benefits which will flow to him from the proceeds of this settlement, I am satisfied that it must be concluded that the settlement is beneficial to the plaintiff and so should be approved by the Court. That approval is accordingly given.