Dunsmore v Dank [2017] NSWSC 1177

Supreme Court New South Wales

Medium Neutral Citation: Dunsmore v Dank [2017] NSWSC 1177 Hearing dates: 17 August 2017 Date of orders: 17 August 2017 Decision date: 17 August 2017 Jurisdiction: Common Law Before: Walton J Decision: The Court makes the orders contained within the short minutes of order in these proceedings in the terms proposed. Catchwords: PRACTICE AND PROCEDURE – proceedings involve a plaintiff who was appointed a tutor – ss 75 and 77 of the Civil Procedure Act – consent orders – requisite legal incapacity – proper basis for the approval of settlement under ss 75(2) and 77 – settlement approved – verdict and judgment for the plaintiff Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Principal judgment Parties: Rickey James Dunsmore (Plaintiff) Kevin Dank (Defendant) Representation: Counsel: J A Gracie (Plaintiff)

Solicitors: Bourke Love Lawyers (Plaintiff) File Number(s): 2017/221200

EX TEMPORE Judgment 1. HIS HONOUR: These proceedings concern an application by Ricky James Dunsmore, through his tutor Rebecca Beryl Dunsmore, for the approval of a proposed settlement pursuant to s 75(2) of the Civil Procedure Act 2005 (NSW). The application is supported by an application by Mrs Dunsmore and by an affidavit of Lynetta James, who is the solicitor for the plaintiff. 2. The Court has before it consent orders duly executed by the solicitors for the respective parties. By that consent order, it was stated that the plaintiff will cause the present action to be mentioned in court and apply for approval of this consent order and for each other order as may be deemed expedient in accordance with the provisions of ss 75 and 77 of the Civil Procedure Act. Subject to that approval, consent was given, inter alia, in the following terms: Without admission of liability, Judgment for the Plaintiff in the sum of $1,020,000.00 inclusive of Funds Management, plus Rehabilitation Costs of $35,836.70 paid pursuant to S83 Motor Accidents Compensation Act (NSW) 1999, plus costs as agreed in the sum of $105,000.00. 1. The affidavit of Mrs Dunsmore deposed that she is the wife of the plaintiff. It further deposed that he was born on 18 July 1963 and that he and Mrs Dunsmore were married in 1986. Accordingly, they have been married for 31 years. They have three children, aged 31, 29 and 18. The two oldest girls are independent. However, their son, Harrison, still resides at home. He is in year 12 at Xavier Catholic College. It was also deposed that Mrs Dunsmore works as a technician in a compound pharmacy in Ballina, four days per week. 2. Ms James deposed that the plaintiff's cause of action arises as a result of his involvement in a motor bike accident on 30 October 2013 on the Pacific Highway in St Helena, when a Toyota Hilux ute turned onto the highway and crossed the plaintiff's path, causing a collision. She further deposed that the plaintiff suffered various physical injuries but more significantly, in terms of the present application, he suffered traumatic brain injury as well as focal dyscognitive seizures secondary, mild executive dysfunction secondary and post traumatic brain injury fatigue. 3. Finally, it was deposed in Ms James' affidavit that the plaintiff suffered a traumatic brain injury, which resulted in the plaintiff being rendered unable to perform his pre-accident store person duties and that he has, in real and practical terms, no residual earning capacity. 4. In the proceedings today, the plaintiff was represented by counsel, Mr J A Gracie. I have had the advantage of receiving his advice in writing of 4 July 2017. That comes before the Court as a confidential exhibit. In that advice Mr Gracie gives an opinion as to non-economic loss, economic loss, the necessary care to be afforded the plaintiff as well as out of pocket expenses and an opinion as to the funds management. 5. Given the confidential nature of the exhibit, I do not propose to outline any of the opinions expressed in it beyond those that I have mentioned. I do note, however, that there is annexed to it material which enables comparative analysis in terms of the assessment of loss in the present matter. 6. In his submissions today, Mr Gracie made two primary submissions. First, the plaintiff is unable to work. The medical evidence is unequivocal that he cannot work. Secondly, the consent orders before the Court, reflected in the short minutes of order proposed, represent a compromise but one which in its terms is very close to the maximum value available to the plaintiff in the settlement of this kind. 7. In my view, Mr Gracie has established a proper basis for the approval of the settlement (reflected in the consent orders) under s 75(2) of the Civil Procedure Act (and related orders under s 77 of that Act). 8. The Court finds, first, the plaintiff has the requisite legal incapacity – he is incapable of managing his own affairs and secondly, that approval of the settlement should be given in the circumstances outlined in this judgment. It was specifically sought in the short minutes of order that the Court enter verdict and judgment for the plaintiff in accordance with para 2 of the consent orders filed in court, which, as a matter of specificity, I do. 9. In the circumstances, the Court makes the orders contained within the short minutes of order in these proceedings in the terms proposed.