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. Orders 1. I make the following orders: 1. Pursuant to Section 75 of the Civil Procedure Act 2005, the settlement of the Plaintiff's claim be approved. 2. Judgment for the Plaintiff in the sum of XXX inclusive of any interest and/or Medicare and/or Centrelink payback and/or National Disability Insurance Scheme payback (the Judgment Sum). 3. The Defendant will pay the Plaintiffs costs and disbursements as agreed or assessed. 4. The amount specified by Medicare is to be deducted and paid by the Defendant to Medicare Australia. The current estimate of that deduction is $1,330. 5. The amount of $42,000 repayable to Victims Services NSW is to be deducted and paid by the Defendant. 6. The amount specified by the Department of Human Services is to be deducted and paid by the Defendant. The amount is currently unspecified. 7. The amount specified by the National Disability Insurance Agency (NDIA) to be repayable is to be deducted and paid by the Defendant to the NDIA. The estimate of that deduction as at 23 September 2019 is $19,375.55. 8. Any amounts required by statute to be repaid are to be deducted and paid by the Defendant. 9. Noting that, on 9 July 2018, the NSW Trustee was appointed the financial manager of the plaintiff, the balance of the Judgment Sum, after deduction of the amounts referred to in paragraphs 4, 5, 6, 7 and 8 is to be paid to the Plaintiffs tutor, the NSW Trustee & Guardian as financial manager of the plaintiff. 10. The Court notes: 1. No interest shall be payable in respect of the judgment referred to in paragraph 2 if it is paid within 28 days, whichever is the later, of the following: 1. From the date of judgment; or 2. In the event that the terms are filed in the Court, until 28 days after receipt by the Defendant's solicitors of the sealed consent judgment; 3. Receipt by the Defendant of a notice under section 24 or 25 of the Health and Other Services (Compensation) Act 1995; 4. Receipt by the Defendant of a notice of charge from Centrelink; 5. Receipt by the Defendant's solicitor of a signed authority to receive from the Plaintiffs solicitor; 6. Receipt by the Defendant's solicitor of a Recovery Notice under section 111 (2) of the National Disability Insurance Scheme Act 2013. 1. The Defendant acknowledges it has been informed of its possible liability to pay to the NDIA money assessed as recoverable under the National Disability Insurance Scheme Act 2013 as a result of this settlement. 2. The Plaintiff's tutor acknowledges that it has been informed of the Plaintiffs possible liability to pay to the Commonwealth of Australia money assessed as owing under the Health and Other Services (Compensation) Act 1995, the Health and Other Services (Compensation) Care Changes Act 1995 or the Social Security Act 1991 (Cth), as a result of this settlement. 3. The Plaintiff's tutor undertakes and agrees to pay out of the Judgment Sum in paragraph 2 any money repayable by the Plaintiff to any person or body whether in respect of social services, Medicare, NDIA or otherwise which may not have been deducted by the Defendant pursuant to this consent judgment and also to pay any party entitled all outstanding medical, hospital, ambulance and other out of pocket expenses the Defendant is authorised to. 4. The Defendant is authorised to deduct and/or pay from the Judgment Sum any money payable by the Plaintiff to any person or body whether in respect of social services, Medicare, NDIA or otherwise and whether in respect of any statute, regulation, award or agreement or otherwise concerning which demand or notice has been served on or given to the Defendant or their solicitors or insurers (either before, on or after the date hereof). Interest under this consent judgment will not be recoverable by the Plaintiff in respect of that part of the judgment covered by any such deduction or payment. 5. The Court directs: 1. The confidential material placed before the court on behalf of the Plaintiff will be retained by the Court file in an envelope marked "only to be opened by order of a judge". 2. These orders not to be disclosed otherwise than as required by law. ********** 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: 04 December 2019