Dalley by her tutor Lisa Walsh v Hood [2020] NSWSC 89

Supreme Court New South Wales

Medium Neutral Citation: Dalley by her tutor Lisa Walsh v Hood [2020] NSWSC 89 Hearing dates: 18 February 2020 Date of orders: 18 February 2020 Decision date: 18 February 2020 Jurisdiction: Common Law Before: Harrison J Decision: Application for approval of settlement refused Catchwords: CIVIL PROCEDURE – settlement of proceedings – disable plaintiff – application for approval – whether proposed settlement in best interests of plaintiff – whether plaintiff's future loss of earning capacity adequately taken into account – approval refused Category: Procedural and other rulings Parties: Zoe Margaret Dalley (Plaintiff) Amie Hood (Defendant) Representation: Counsel: K Andrews (Plaintiff)

Solicitors: Stacks Goudkamp (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2018/391801 Publication restriction: Nil

Judgment 1. HIS HONOUR: Zoe Dalley was seriously injured in Queensland in February 1999 when she was only nine months old. Ms Dalley then was a passenger being held unrestrained in the front passenger seat of a car that was involved in a collision. She sustained severe injuries including a traumatic brain injury that has left her with permanent and persisting neurocognitive, behavioural and emotional dysfunction. Ms Dalley continues to have difficulties with communication, memory, problem solving, motivation and confidence. Her ability to lead a normal life has been significantly compromised. For example, she has had difficulty obtaining and retaining regular employment. She has not achieved any educational qualifications or training skills that qualify her for specific work. She even has difficulty with the regular tasks of daily living, and remains vulnerable to exploitation with respect to money management and basic financial transactions. Despite three attempts, Ms Dalley has so far been unable to obtain a learner's permit to drive a motor vehicle. 2. These proceedings were commenced in 2018. Ms Dalley sues by her tutor. She is no longer an infant. However, I am informed that she remains a disable person by reason of her injuries and disabilities. 3. The parties have reached an agreement to settle this litigation subject to the approval of the Court. Liability is not in issue. The proposed settlement is for the payment of $2,338,500 inclusive of funds management plus costs of $157,500. I am informed that there are modest deductions to be made from the settlement sum on account of medical expenses that have been paid on Ms Dalley's behalf. I am informed that there is an equally modest amount outstanding in solicitor/client costs which the tutor will seek to have released from trust if the settlement is approved. 4. I have been provided with a large series of medical reports that explain Ms Dalley's medical condition in helpful detail. These reports also offer predictions about her ability to work and the extent to which she will require ongoing assistance for the rest of her life. Dr Brian Zeman recently reported to the solicitors acting for the defendant in terms that included the following: "Recommendations: Zoe is physically fit for normal duties but her cognitive functions will limit the type of work that she could do and be trained for. In my opinion, she has work potential for simple, manual and unskilled work similar to the jobs she has been doing previously. Her behavioural difficulties and motivation may further limit improving her potential with any specific formal training other than for very simple tasks. For medicolegal purposes it may be useful to obtain school records indicating her scholastic ability and the details of behavioural issues. Zoe does not require any personal care, attendant care or nursing care as a result of the accident. She does not require any physiotherapy, occupational therapy or similar treatments. She does not require any medical consultations, specialist consultations, further investigations, surgery or similar major interventional procedures. I would agree with Ms Alach that she would benefit from some assistance; mostly supervision and prompting for daily tasks, paperwork etc. I would consider though that only 3.5 hours per week would be necessary for commercial purposes. I would also consider that some of this assistance would have been required even if the accident had not occurred due to her family/behavioural situation and upbringing. Therefore, I would consider that only half of this is necessary as a result of the TBI. I would agree that Zoe has the capacity to live alone. She does not require any major house modifications, air conditioning, a swimming pool, car modifications or mobility aids. It seems unlikely that Zoe will drive after three failed attempts to obtain a Learner's permit let alone test drive a car. In my opinion, she will need to negotiate public transport which she can do or have travel support. In my opinion, she is able to give basic instructions to her solicitors and manage basic budgeting but would have difficulty with large sums of money so that she will have more need of a financial advisor/manager than others of her age. As well there may be a need to consider having any large monies held in trust." (Emphasis added) 1. I note that I have been provided with counsel's estimate of the damages that Ms Dalley might reasonably expect to recover if the proceedings went to trial and her losses were assessed by the Court. Part of that estimate includes the sum of approximately $695,000 for future economic loss, including loss of superannuation contributions. That amount is to be compared with calculations for Ms Dalley's past economic losses to date, in the sum of approximately $142,000. Having regard to Ms Dalley's age and her work history of no more than about four years, there seems to me to be an irreconcilable tension between her losses to date and the (discounted) predictions about what her loss of earnings might produce over the remainder of her working life. Even accepting the view of Dr Zeman that her capacities are not all referable to compensable injuries, the amount factored into the proposed settlement sum appears to me to be inadequate. 2. I am not satisfied that the proposed settlement is in the best interests of Ms Dalley. In expressing that view I do not wish to be taken to have accepted that the proposed settlement is only deficient because the amount calculated for future economic loss appears to be too small. However, having formed the view that I have formed, it is unnecessary to comment upon whether other aspects of the estimate of recoverable damages might also be too low. 3. In the circumstances I do not consider that the prosed settlement is in the best interests of the plaintiff and I decline to approve it.