Settlement Approved for Person Under Legal Incapacity in NSW Supreme Court

The NSW Supreme Court approved a settlement for a person under legal incapacity, ensuring it was beneficial to the individual under section 76 of the Civil Procedure Act 2005 (NSW). The court considered the person's severe disability and the comprehensive confidential advice of counsel.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v State of New South Wales [2020] NSWSC 1004 Hearing dates: 30 July 2020 Date of orders: 30 July 2020 Decision date: 30 July 2020 Jurisdiction: Common Law Before: Lonergan J Decision: The settlement is approved (orders are set out in [21] of this judgment). Catchwords: CIVIL PROCEDURE — approval of settlement by consent — whether the Court is satisfied that the settlement is beneficial to the person under the legal incapacity — settlement approved Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Protected Estates Act 1983 (NSW) Category: Procedural and other rulings Parties: [NAME] (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: [redacted] A Williams (Defendant)

Solicitors: [redacted] [NAME] (Defendant) File Number(s): 2018/233613 Publication restriction: Nil

Judgment 1. This is an application for approval of settlement pursuant to s 76 of the Civil Procedure Act 2005 (NSW) ("the Act") of proceedings brought by [NAME] by his tutor, his mother, [NAME], against the State of New South Wales. 2. [NAME] is a 39-year-old man who was violently bashed whilst in custody, awaiting his appeal from a sentence of imprisonment arising out of a car accident where a cyclist was killed. 3. [NAME] suffered significant brain damage and is severely disabled. He requires 24 hour care, is dependent upon a motorised wheelchair for mobility and has speech and cognition issues.

4. Before his injuries, [NAME] is described as an industrious and hard-working married man, with eclectic interests and hobbies. I acknowledge the effect these injuries he now lives with must have on [NAME], his family and friends, and his parents in particular, whom it seems have provided, and continue to provide, an heroic amount of unpaid care to [NAME].

5. The application for approval of the settlement reached is one part of orders sought in the notice of motion filed on 20 July 2020. In addition to that order under s 76 of the Act, ancillary orders are sought for the deduction of certain specified and unspecified sums of money and for payment out of the settlement sum to the NSW Trustee and Guardian.

6. One alternative order proposed was that the Court order payment of the full settlement sum, less statutory deductions, directly to the NSW Trustee and Guardian on the basis that the plaintiff already has in place a Guardianship Order.

7. I was not satisfied that was an appropriate order to make, given the provisions of s 77(3) of the Act, which in my view limit that option to cases where the plaintiff is a minor or where there has been an order made under the Protected Estates Act 1983 (NSW). Neither circumstance apply here.

8. I was assisted by the provision of an Affidavit of [NAME] as well as a detailed affidavit of [NAME], solicitor, sworn 20 July 2020, to which was exhibited various expert liability and medical reports. Those reports explain the issues and detail [NAME]'s care and treatment needs, which are, understandably, significant.

9. I was greatly assisted by the comprehensive confidential advice of [NAME] of counsel dated 13 July 2020. [NAME] is a highly experienced member of the Bar in claims of this nature. I have placed great reliance on his assessment of the liability and medical issues in this case. I accept his advice as a proper reflection of the legal principles, the liability issues and the medical and damages issues. His advice formed an essential basis of my comfortable satisfaction that the settlement is in the best interests of the plaintiff.

10. The plaintiff was born in early 1981 and was approximately 34 years old at the time of his injuries. He was an inmate in the Wellington correctional facility under the care and in the custody of the NSW Department of Corrections. He was assaulted by an inmate who subsequently pleaded guilty to assault causing grievous bodily harm.

11. The injuries to [NAME] comprised multiple skull base fractures, and fractures to the nasal bones and both eye sockets; clearly a very savage beating.

12. The person who assaulted him was alleged in the statement of claim to have been a known violent offender, at high risk of assaulting other prisoners, and that the State was aware of that.

13. It is alleged that the State was negligent in failing to implement appropriate protocols for the prevention of prisoner-on-prisoner assaults and failing to adequately observe what had occurred which led to the plaintiff laying injured, unobserved in his cell, for an hour and a half, with serious bleeding into his brain. 14. [NAME] remained in a coma for several weeks. He required extensive medical treatment involving a year in hospital and a year in a rehabilitation facility. Since release in mid-2018, he has been cared for at home by a combination of his parents and carers paid by the NDIS and it seems, a friend on a carer's pension who assists with the night shift.

15. The Defence filed denied negligence and denied that anything the defendant did or failed to do caused the harm. It was denied that it was foreseeable that [NAME] would be injured in that way by the person involved. It was asserted that under s 42 of the Civil Liability Act 2002 (NSW), the State had complied with general procedures and applicable standards in exercising its functions, and its resources were limited by financial and other constraints.

16. There was a conflict in the expert opinions addressing liability. The report served by the defendant maintained the position that the defendant had not breached its duty of care to [NAME] and that it was unreasonable and unduly onerous for corrections officers to have to inspect cells every 20 minutes or so or to continuously monitor CCTV cameras looking for problems.

17. I have read the expert medical reports exhibited to [NAME]'s affidavit that include neurologists, a physician, a rehabilitation specialist, occupational therapists and a urologist.

18. The advice of [NAME] sets out comprehensively the potential heads of damage and the likely ranges of approach a Court would take to those heads of damage.

19. It is significant to note that because the injury was sustained whilst [NAME] was an inmate in a correctional facility, Part 2A of the Civil Liability Act 2002 (NSW) applies which limits some aspects of the claim in respect of non-economic loss and loss of earning capacity.

20. I am satisfied that the compromise reached is an appropriate one and is in the best interests of the plaintiff.

21. I make the following orders: (1) The settlement reached between the plaintiff and the defendant is approved pursuant to s 76 of the Civil Procedure Act; (2) Without admission of liability, judgment for the plaintiff against the defendant in the sum of $XXX in accordance with Para 1 of the Consent Judgment signed by the legal representatives of the plaintiff and the Defendant; (3) The defendant pay the plaintiff's costs as agreed; (4) Pursuant to s 77(2) of the Civil Procedure Act, the judgment sum is to be paid into court pending further order of the court; (5) The remaining aspects of the plaintiff's notice of motion filed on 20 July 2020 is stood over to a date to be fixed once further relevant notices and evidence is available; (6) Liberty to the parties to restore the matter for determination of the remaining aspects of the plaintiff's notice of motion on 2 days' notice by email to the Associate of Lonergan J; (7) Any application for substitution of the plaintiff's tutor can be made by emailing the relevant documentation to the Associate of Lonergan J and any necessary orders can be made in Chambers; (8) Reasons for these orders to be published by email to the parties in the next 24 hours; (9) The confidential advice of [NAME] of counsel dated 13 July 2020 is to be placed into a sealed envelope marked "Confidential Exhibit C" and is not be accessed by any person without an order of the judge of this court, and not until the plaintiff has been given an opportunity to be heard on any such access request.

********** 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 July 2020