Amelia Bullard by her tutor NSW Trustee & Guardian v State of NSW [2019] NSWSC 1668

Supreme Court New South Wales

Medium Neutral Citation: Amelia Bullard by her tutor NSW Trustee & Guardian v State of NSW [2019] NSWSC 1668 Hearing dates: 19 November 2019 Decision date: 03 December 2019 Jurisdiction: Common Law Before: Button J Decision: Settlement approved Catchwords: PRACTICE AND PROCEDURE – Application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – Whether proposed settlement is beneficial to the interests of the plaintiff – Settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Principal judgment Parties: Amelia Bullard by her tutor NSW Trustee & Guardian (Plaintiff) State of NSW (Defendant) Representation: Counsel: L Saw (Plaintiff) M Fordham SC (Defendant)

Solicitors: Carroll & O'Dea Lawyers (Plaintiff) Norton Rose Fulbright Australia (Defendant) File Number(s): 2019/339102

Judgment 1. This is an application for approval of a settlement of a claim for negligence pursuant to s 75 of the Civil Procedure Act 2005 (NSW) that came before me in the Duty list recently. 2. The transcript of the hearing shows that I received concise but very effective assistance in the form of oral submissions from each counsel on the application. This judgment is based very largely on that assistance. Furthermore, in my opinion there can be no controversy about the fact that this settlement is beneficial to the interests of the plaintiff. For those reasons, I believe that I can now be brief. 3. The background of this sad matter is as follows. The plaintiff, now 23 years of age, was mistreated terribly as a child. Many notifications of that mistreatment were made to a manifestation of the defendant. The allegation of the plaintiff is that the defendant was negligent in its response, with the result that the plaintiff has developed chronic, disabling, seemingly permanent psychiatric conditions. It is those conditions that have led to the New South Wales Trustee & Guardian (NSWTG) having been appointed her tutor, which in turn gives rise to the need for my approval. 4. Since the commencement of the proceedings, a successful mediation took place, the result of which is simply sought to be approved by me, with the proceedings thereafter coming to a prompt conclusion. 5. Without descending to a level of detail, it is clear that the settlement sum is a very large proportion of the total claim. In other words, this is not a case in which a judge of this Court may be concerned about a marked divergence between the quantum of the total initial claim, and the subsequent proposed settlement. Indeed, senior counsel for the defendant made it clear that the approach of his client was that its own concern was to ensure that any settlement would appropriately provide in particular for the care of the plaintiff in the future. 6. It was also made clear by both counsel that, although at this stage it is necessarily unclear whether the National Disability Insurance Agency (NDIA) will subsequently put any funds towards the future care of the plaintiff, the settlement proceeds on the basis that that will not occur; in other words, a joint approach of "abundant caution" has been taken. 7. In short, I was assured by both parties that, whatever the approach adopted by the NDIA in future, there can be no question of the plaintiff not receiving the care she needs for the rest of her life. 8. There was also evidence placed before me that the officer of the NSWTG who acts as the tutor of the plaintiff has been fully involved in the settlement process, and is quite content with the proposed outcome. So is the plaintiff, and I infer that in light of her difficulties the resolution of this litigation will be a great relief to her. 9. I have also had the benefit of a confidential advice from counsel for the plaintiff, who I accept is soundly experienced in matters such as these. And I have her assurance, again without descending into detail, that all of the deductions contained in the settlement are entirely orthodox, and constitute no inappropriate detriment to her client. 10. Finally, I have been assured that there is no question of a very substantial sum of money being placed in the hands of a young woman who is psychiatrically disturbed; all of the funds will be in the hands of the NSWTG, which will of course manage them for her benefit. 11. In my opinion, in any litigation, erring on the side of caution rather than "gambling" by pushing a claim to its limit is very often soundly appropriate. And in this particular litigation, a degree of caution is particularly sound, in my opinion. That is because, if things were fully disputed, there could be a question about causation, in that it could be said that at least one of the conditions from which the plaintiff suffers has a genetic element, and that at the least she had a genetic predisposition to the development of one or more of her conditions. 12. In other words, if the matter were not settled, and if the defendant chose to take a different course, a fundamental precondition of success of the claim of the plaintiff could be in forensic question. 13. But in any event, as I have said, the difference between the initial claim and the proposed settlement is in fact not marked; in other words, even though there are grounds for caution one could not infer that too much of it has been applied by the legal team of the plaintiff. 14. In all the circumstances, I regard it as completely appropriate for me to approve this settlement. Finally, although this judgment will appear on Caselaw, the sum involved will be suppressed, in an effort to minimise the possibility of others seeking to take advantage of a vulnerable person.