Supreme Court New South Wales Medium Neutral Citation: Sharp v Home Care Service of NSW [2018] NSWSC 1319 Hearing dates: 21 August 2018 Date of orders: 21 August 2018 Decision date: 21 August 2018 Jurisdiction: Common Law Before: Lonergan J Decision: Settlement approved. Catchwords: CIVIL PROCEDURE – settlement approval – no point of principle – orders made Legislation Cited: Civil Procedure Act 2005 (NSW) s 76 National Disability Insurance Scheme Act 2013 (Cth) ss 4, 9, 13, 33, 65, 107, 116, 117 Cases Cited: AB by her tutor MB v State of New South Wales and Anor [2018] NSWSC 765 Category: Consequential orders (other than Costs) Parties: Tegan Sharp bht Mark Sharp (Plaintiff) Home Care Service of NSW (Defendant) Representation: Counsel: K Andrews (Plaintiff) K Sant (Defendant) Solicitors: Carroll & O'Dea Lawyers (Plaintiff) Mackinson & d'Apice Lawyers (Defendant) File Number(s): 2015/293861 EX TEMPORE Judgment 1. This is an application for approval of a proposed settlement of proceedings that have been commenced by a person under legal incapacity, Tegan Sharp. The application is pursuant to s 76 of the Civil Procedure Act seeking orders that I approve the settlement reached. 2. Tegan is now 25 years old. She was born with cerebral palsy and has lifelong disabilities associated with that condition. As well as being legally blind and deaf, she has profound physical and mental disabilities. 3. It is evident from the material tendered before me on this application, which comprises an affidavit of her father and tutor, Mark Sharp, as well as lengthy affidavits of the solicitors with conduct of the proceedings, Ms Chieffe and Ms Garnett, that Tegan has required 24 hour care and assistance of a multifaceted kind since birth. 4. It is also evident in that affidavit material, the pleadings and the Statement of Particulars filed in January 2016, and in the considered and helpful confidential advice of Mr Andrews, counsel for the plaintiff, that damages sought in these proceedings are of a particular nature and parameters that are different to the care and other needs that Tegan has had from her underlying condition – cerebral palsy – that she has had since birth. 5. This litigation arises from an incident on the 14th of October 2012 when Tegan was unfortunately scalded by hot water whilst being showered by a carer employed by the defendant. 6. The Statement of Claim filed on her behalf on the 6th of October 2015 specifies a claim for injuries, disabilities and damages as set out in the Statement of Particulars. 7. The Statement of Particulars filed in January 2016 sets out with precision a series of injuries and disabilities and claims for damages which are confined to the scalding injury. The injuries are described as: "severe third degree burns, scarring, abdominal injury, gastro intestinal injury, respiratory injury, shock and psychological injury". 8. The disabilities outlined focussed on the sequelae of the burn including digestive and psychological problems. The claims for past and future treatment and the claims for gratuitously provided domestic assistance and attendant care are also focussed on those injuries. 9. The claim for care/domestic assistance spells out that "Prior to the accident, due to unrelated disabilities, the plaintiff was in receipt of home care and assistance, but, following the accident the plaintiff has required additional care of a gratuitous nature provided by and continuing to be provided by her immediate family, including her parents." 1. Mr Andrews has outlined in oral submissions today that that gratuitous care particularly related to emotional distress and the need for parental presence and support, when being showered, due to Tegan's fears associated with that necessary daily task. 2. The Defence initially filed in the proceedings denied liability. However, an amended defence was subsequently filed which admitted breach of duty of care, but placed broadly in issue the nature and extent of the damages due to the plaintiff although acknowledging that the plaintiff had been burnt in the incident. 3. Expert opinions were retained for both the plaintiff and the defendant, and these experts were responsibly directed towards an examination of issues relevant to proper compensation being awarded, or agreed, that arise from, and only from, the injuries and sequelae caused by the incident on the 14th of October 2012. 4. Issues arose over life expectancy, additional care needs referable to the scalding incident, the nature and amount of additional care, and the nature and amount of future treatment. 5. It is uncertain how all of those issues would have been resolved and determined by a court, but, what is crystal clear, is that compensation in these proceedings can only be given for the injury sustained in the incident. 6. This is of significance given the highly unsatisfactory position Tegan and her parents find themselves in today because of the NDIA refusal to appropriately consider and determine the proper legislatively-sanctioned payback due to it in the circumstances that arise in this case. 7. Within the affidavit of Ms Chieffe is evidence of repeated, courteous and clear articulation of the facts and the plaintiff's claim and arguments as to why there ought to be no payback due to the NDIS from the settlement sum I am today to approve. 8. The responses of the NDIA, as correctly pointed out by Mr Andrews, have either deliberately avoided the issues raised, or discourteously simply been responded to by apparently pre-formatted correspondence that makes no effort to consider or deal with the issues properly raised by the plaintiff's solicitor relating to the payback question. 9. For reasons that are completely opaque to analysis, the NDIA has claimed on different occasions initially $34,000, then four months later, $136,000, and then later still, $106,000, as being the proper payback due to it. 10. The absence of reasons for these alarmingly disparate figures underpins a concern I have that these figures sought are without any proper basis. 11. This concern is further highlighted by the undoubtedly correct legislative analysis provided by Mr Andrews to this Court today, that illustrates, in my view, that the NDIA has no proper basis to claim any payback at all in the circumstances of this case. 12. Mr Sharp in his affidavit deposes to having completed a form with the NDIA keeping separate the care and other needs referable to the scalding injury: "[23] When I applied for NDIA support I did not ask the NDIA to provide any supports for Tegan for injuries received from the subject of this claim. In fact I believe that the supports provided to Tegan by the NDIA are for her pre-existing condition. I therefore do not agree that the NDIA supports for the past are a repayable in full or at all." 1. He annexed to his affidavit a form of plan approval forwarded to Tegan by a faceless author (referenced by a number and a GPO Box, but no contactable human) which outlines a number of supports that have been sought and are to be provided, that clearly, on my assessment, relates to the underlying cerebral palsy and associated care and assistance needs. 2. Turning to the legislation, s 4 of the National Disability Insurance Scheme Act 2013 sets out the "General Principles Guiding Actions Under this Act". In sub-section 1 it states the principle that "people with disability have the same rights as other members of Australian society to realise their potential for physical, social, emotional and intellectual development". In sub-section 5, it is said that people with disability "should be supported to receive reasonable and necessary support, including early intervention support". Sub-section 6 says that "people with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation". Sub-section 7, another general principle guiding the actions under this Act says that "people with disability have the same right as other members of Australian society to pursue any grievance". There are other high minded statements of principle set out in section 4. 3. Relevantly, as drawn to my attention by Mr Andrews, sub-section 14 refers to people with disability needing to be "supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate their supports, with the supports provided under the National Disability Insurance Scheme" (emphasis added). 4. This is clearly a statement of general principle that it is expected that persons with disability should continue to rely upon those unfunded, informal supports so often provided by parents and families of people with disability, additionally and separate to supports paid for and to be paid for in the future by the NDIS. 5. This has significance in the context of the claim for payback made by the NDIS in this case, because as articulated by Mr Andrews, the claim for payback appears to be a claim for the very supports provided gratuitously by family that ought not be the subject of payback at all. 6. Section 9 of the legislation defines 'carer' as an individual who provides personal care, support and assistance to another individual who needs it because that other individual is a person with disability, and, critically who does not provide the care support and assistance under a contract of service or in the course of doing voluntary work for a charitable or other organisation or as part of the requirements of a training course. 7. Section 13(2) of the legislation sets out a definition of "general support", as a service provided by the "Agency" to a person or an activity engaged in by an "Agency". 8. That needs to be read with s 117, which defines an "Agency" as a body corporate with other requirements that of course can never apply to the plaintiff's parents or family or the care they have given freely in the past and will give in the future. 9. I pause at this stage to reiterate that the claim agreed in the settlement comprising past and future care in this case is for past and future care gratuitously provided, that is provided for free by parents or family, not care by paid "Agencies" or paid government employees. 10. Section 107, as outlined by Mr Andrews, is the enabling provision relied upon by the NDIA to claim back the money it has identified in those various large unexplained sums. That section refers to an "amount of compensation fixed under a consent judgment or settlement in respect of a personal injury that has caused, to any extent, a participant's impairment (whether or not the participant was a participant at the time of the injury)". Sub-section 1(b) requires that before the day of consent judgment or settlement, identification of NDIA amount had been paid in respect of supports in relation to the participant's impairment. 11. I pause here to state that the submission made is that the "impairment" for which Tegan is being compensated in these proceedings is not an impairment for which, as I understand Mr Andrews' submissions, the NDIS has provided any service or services. 12. Also underpinning the argument put forward by Mr Andrews is s 33(6), which refers to "supports" which, as defined in s 9, include general supports. 13. The parents and family of the plaintiff providing gratuitous care can never fit the description of "reasonable and necessary supports funded under the NDIS" and therefore, the sum said to be referrable to past payments due to be repaid to the NDIA and any claim for future gratuitous supports provided by the parents and family are unfounded. 14. Added to that submission is the contents of the letter of the 20th of August 2018 by the NDIA to the solicitor for the plaintiff. The letter, signed by a person described as "Delegate of the CEO NDIS" contains a distinction in paragraph 4 between "reasonable and necessary support" funded under participant's plan, as being a separate and distinct from "general support" as described in s 33(2)(a) and (b). 15. On any analysis, gratuitous care provided by the parents and family of Tegan in the past and future would fit the description of "general supports" that are specifically excluded from funding by NDIS, and this should be excluded from payback. 16. Another matter of concern was that a subpoena was issued for assistance in the necessary task of identifying what payback may have to come out of the settlement sum so that this Court can properly exercise its discretion to approve a settlement reached between parties to litigation involving a person under a legal incapacity. 17. Section 67G provides protections over certain documents from production to court. The way the provision is drafted is unhelpful and somewhat unclear. It provides that: "A person must not, except for the purpose of this Act, be required: (a) to produce any document in his or her possession because of the performance or exercise of his or her duties functions or powers under this Act or, (b) to disclose any matter or thing of which he or she had noticed because of the performance or exercise of such duties functions or powers, to a court, tribunal, authority or a person that had power to require the production of documents or the answering of questions." 1. It seems to me that this application for approval of the settlement requires me to identify the approximate net sum the plaintiff will have for her benefit in resolution of these legal issues. Because the NDIS have made a potentially very large claim affecting this sum, it does involve me in an exercise of analysis dealing with "the purpose of this Act" in broad terms. 2. I also understand that an informal request was made for production of the NDIS Plan and an earlier application relating to Tegan, but provision of that material was refused. That is why a subpoena was issued. 3. The subpoena was for the NDIA to appear and produce documents. I had the "Proper Officer" of the NDIA called three times outside the Court. There was no appearance. 4. I have been informed by counsel for the plaintiff that no documents have been produced in response to the subpoena returnable again today, and that no courtesy of an attendance or acknowledgement or appearance by "the proper officer" or a legal advisor on behalf of the recipient of the subpoena, has been extended. It seems to me on one analysis, this could be considered to be contempt of this Court's process on the part of the NDIA. 5. I find it difficult to understand why an organisation constructed to assist in the funding and empowerment of people with disabilities to function in society, fails to respond to court process or to address proper, carefully considered correspondence from legal advisors to such persons. 6. I agree with and adopt the comments of Johnson J in AB by her tutor MB v State of New South Wales and Anor [2018] NSWSC 765 at [20] in circumstances where a similar problem arose (in that case there was failure by the NDIS or the NDIA to identify what the repayment figure would be at all). His Honour states: "It is highly desirable that persons in the position of MB and AB have some certainty as to their position when an application such as this is brought before the Court." 1. His Honour went on to say that for his part, that ought lead to an appropriate decision by the NDIS not to pursue any sum against the plaintiff and her tutor. 2. In this case I take the same view, not only because of the broader considerations identified by Johnson J, but for the additional reason in this case, that the statutory scheme does not seem to permit any such claim being made in the circumstances specific to this case. 3. The Consent Orders placed before me identify with specificity the heads of damage and how they underpin the sum agreed between the parties as an appropriate compromise. 4. I am of the view that the sum agreed is appropriate and I approve it. In the exercise of the relevant approval function of this Court under the Civil Procedure Act, I bear in mind the risks of litigation and the benefit to the plaintiff in having the matter resolved. 5. It is, however, highly unsatisfactory that the plaintiff and her tutor, her family and their legal representatives are left in unexplained, bureaucratic uncertainty as to what amount is to be repaid to the NDIA/NDIS. 6. It seems to me, given the statutory analysis outlined by Mr Andrews, and (hopefully) re-produced correctly in this judgment, that no sum at all is due to the NDIA/NDIS, either now or in the future, from the compensation figure agreed in this litigation. 7. If, contrary to that view, or contrary to the statutory analysis provided by Mr Andrews, the person(s) in authority at the NDIA consider there is a payback due, I would ask, as suggested by Mr Andrews, that careful consideration be given to s 116 of the National Disability Insurance Scheme Act 2013, and the power of the CEO to exercise his or her discretion to not pursue repayments in the circumstances of this case. 8. I have been greatly assisted by the carefully prepared affidavits, the detailed confidential advice and the oral submissions of Mr Andrews, and the assistance of Ms Sant, counsel for the defendant, in her sensible additional submissions. 9. Accordingly, for the purposes of s 76 of the Civil Procedure Act I approve the settlement proposed. ********** 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: 31 August 2018