Goldsmith by her tutor the New South Wales Trustee and Guardian v Bisset [2017] NSWSC 864

Supreme Court New South Wales

Medium Neutral Citation: Goldsmith by her tutor the New South Wales Trustee and Guardian v Bisset [2017] NSWSC 864 Hearing dates: 28 June 2017 Date of orders: 28 June 2017 Decision date: 28 June 2017 Jurisdiction: Common Law Before: Campbell J Decision: Settlement approved under s 76(4) of the Civil Procedure Act 2005 (NSW) Catchwords: SETTLEMENT – negligence – injuries arising from a collision with a young child on a pushbike – where child had developmental disabilities – where previous settlement on contributory negligence of the plaintiff – disentanglement of head injuries and pre-existing disability – where there has been no claim for economic loss – proposed settlement held to be in the plaintiff's best interests Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Goldsmith by her tutor the New South Wales Trustee and Guardian v Bissett (No 3) [2015] NSWSC 634 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Purkess v Crittenden (1965) 114 CLR 164 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Category: Consequential orders (other than Costs) Parties: Charmayne Louise Goldsmith (Plaintiff)

Luke Bisset (Defendant) Representation: Counsel: J.E. Maconachie QC with P. Regattieri (Plaintiff) P.R. Stitt QC (Defendant)

Solicitors: Carroll & O'Dea (Plaintiff) Sparke Helmore (Defendant) File Number(s): 2006/298059

Judgment 1. I am asked to approve a settlement under the provisions of s 76 Civil Procedure Act 2005 (NSW). 2. I have had something to do with this case in the past and the background facts giving rise to the claim are fully set out in my earlier judgment: Goldsmith by her tutor the New South Wales Trustee and Guardian v Bissett (No 3) [2015] NSWSC 634. Following that judgment, there was an appeal on the liability issue, which was settled by the parties on the basis of an apportionment of 20 per cent for the plaintiff's contributory negligence. That previous agreement was approved by me as an additional Judge of Appeal under s 76. 3. The difficulty with the claim in relation to quantum relates to the plaintiff's undoubtedly severe pre-existing disabilities. The evidence which has been read in the proceedings for approval before me is to the effect that the plaintiff suffered from an intellectual disability from birth. On the balance of the evidence, that disability is in the mild to moderate range. That type of disability, despite the benignity of the qualifying expressions, is a severe disability and the evidence that the parties have garnered certainly indicates - although there is, as always, a range of views - that there is a real question about whether the plaintiff would have been able to function independently in the activities of daily life, even if the severe accident the subject of these proceedings had not occurred. 4. There is also equally no doubt that the plaintiff did suffer a very severe head injury in the motor vehicle accident and that severe traumatic brain injury was associated with an extensive fracture of her skull. 5. The issue at any hearing on quantum would be whether the consequences of the pre-existing disability and the head injury could be disentangled and who bore the onus of carrying out that task. The plaintiff would contend that Purkess v Crittenden (1965) 114 CLR 164 remains good law and that there is an evidential onus on the defendant to perform the disentanglement. On the other hand, the defendant would rely upon what was said by the Court of Appeal in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 as to the synergy between Purkess v Crittenden and the more recent decision of the High Court of Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. If that case applied, the task of disentanglement is made very much easier for the defendant. 6. There would then be a real question, notwithstanding the severity of the injury caused by the motor vehicle accident, about just what damages are recoverable. 7. That difficulty is enhanced by the fact that whatever the plaintiff's level of functioning but for the injury, it seems to be accepted, correctly, in my view, that she would never be capable of working in the open labour market and no claim has ever been made for economic loss in this case. That, accordingly, reduces the possible heads of damage that can be recovered. Definitely, one would expect that the general damages in the case would be large, so far as the statutory cap allows, but there would be a real issue about the need for attendant care services related to the injury, which could be subject to the difficulty I have identified with the disentanglement. 8. There are a variety of views specified as to the plaintiff's needs, in any event. This, of course, is common enough. On the one hand there is the expression of opinion by Dr Buckley that the case is one which calls for 24-hour care over seven days, and on the other, there are other more moderate views expressed, as well. One would not expect that, reading the whole of the evidence in the case, Dr Buckley's view was especially likely to prevail. 9. The sum proposed is one of $X, inclusive of the cost of fund management. As I understand the material that has been put before the Court, there are some issues about deductions which are set out in the affidavits that have been read. Given the long history of the case, the difficulties it presented to those representing the plaintiff, and the unavoidable necessity for a change of solicitor, more than once, the solicitor and client costs are very high. It is difficult to know what the party and party costs will be at this stage because there is a dispute about the entitlement to costs of the first solicitor who represented the plaintiff. Until that dispute is resolved by an assessment, it is very hard for the defendant to know what claim is made to negotiate a settlement. 10. The probabilities are that the NSW Trustee and Guardian, who manages the plaintiff's estate pursuant to an order made by the then Guardianship Tribunal on 5 December 2012, will authorise a deduction of the solicitor and client costs in advance of the resolution of the issue about the first solicitor's costs. I am told the amount claimed by him will be withheld until assessment. 11. There is also an issue in relation to moneys expended in support of the plaintiff by the Department of Family and Community Services. I am informed, however, that notwithstanding the large amount apparently expended in support of the plaintiff over many years, the plaintiff's solicitor has been informed by an officer of the Department that the Department does not assert an entitlement to refund. 12. Given the uncertainties involved and the potential legal difficulties attending their resolution, I am satisfied that the proposed settlement is in the plaintiff's best interests. 13. In those circumstances and for those reasons, I am prepared to approve the settlement under s 76(4) Civil Procedure Act 2005 (NSW). 1. There will be judgment for the plaintiff in accordance with paragraph 3 of the form of consent judgment. 2. I note the matter in paragraph 4. 3. I make an order in accordance with paragraph 5. 4. In accordance with paragraph 6, I make an order under s 77(3) of the Act that the judgment moneys, after deductions that the defendant is authorised to make, be paid to the NSW Trustee and Guardian, being the manager of the plaintiff's estate by order of the Guardianship Tribunal made on 5 December 2012. 5. I note the contents of paragraphs 7, 8, 9, 10 and 11 and I record the agreement of the parties that otherwise than as required by law the terms of their agreement are not to be disclosed. 6. Those orders may be entered forthwith. 1. I direct that the seal of the Court be affixed to the form of consent order signed by me and dated today.