Axiak v Ingram

[2013] NSWSC 2023

Supreme Court

New South Wales

Medium Neutral Citation:

Axiak v Ingram [2013] NSWSC 2023

Hearing dates:

11 December 2013

Decision date:

11 December 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Settlement approved.

2. Orders made as per Consent Judgment agreed between the parties.

Catchwords:

TORTS - damages - accident resulting in brain injury - plaintiff under legal disability - approval of settlement

Legislation Cited:

Motor Accidents Compensation Act 1999

Cases Cited:

Daley v Thiering (2013) HCA 45

Category:

Interlocutory applications

Parties:

Alana Faye Axiak by her tutor Donna Marie Axiak (Plaintiff)
Matthew David Ingram (Defendant)

Representation:

Counsel:
P J Nolan (Plaintiff)
I Jones (Defendant)
Solicitors:
Stacks/Goudkamp Lawyers (Plaintiff)
Curwoods (Defendant)

File Number(s):

2010/213758

Judgment

1. The Plaintiff was severely injured in a motor vehicle accident on 26 June 2008. She suffered a severe brain injury. The extent of her disabilities are well detailed in the report of Dr Stephen Buckley of 29 August 2013. In addition her intellectual and cognitive difficulties are detailed in a very lengthy and thorough report of Dr Pauline Langeluddecke of 23 August 2013.

1. I am told that this is the first case to be decided under the regime involving what are called blameless accidents. Despite that title the legislation enables the finding of contributory negligence and in this case contributory negligence of 50% was found on the Plaintiff's part.

1. As a result of the High Court's decision in Daley v Thiering [2013] HCA 45 damages for past gratuitous care are no longer recoverable. The result is that the only damages payable are in respect of non-economic loss and economic loss. However, damages representing funds management may be awarded.

1. In the present case the Plaintiff and the Defendant have settled the claim for an amount agreed at $1.1 million subject to the Court's approval. Although the Plaintiff is 19 years of age the need for approval arises because she requires a tutor as a result of her intellectual and cognitive disabilities.

1. The $1.1 million is made up of $740,000 comprising the economic and non-economic loss damages, party-party costs of $160,000, and the allowance for funds management of $200,000. That figure of $1.1 million must be viewed in the light of the finding by the Court of Appeal of 50% contributory negligence.

1. I have read an advice by the Plaintiff's counsel provided in relation to the settlement of this matter where he recommended acceptance of the figure of $1.1 million inclusive of costs. The allowance which he made for non-economic loss was in the region of $400,000 with the current maximum amount payable under the Motor Accidents Compensation Act 1999 being capped at $477,000. Otherwise the economic loss damages have been calculated on the basis of average weekly earnings on the assumption of an unbroken work pattern for the whole of the Plaintiff's adult life until she turns 67 years.

1. That might be thought to be a generous approach because of a reasonable likelihood that there would have been periods away from work, for example, for the bearing and bringing up children. In all the circumstances I consider that the arrangement that has been made is a reasonable one and should be approved.

1. I have been directed to figures for funds management in the Furzer Crestani publication. I have also been informed from the Bar table of the amount that would be charged by at least one private funds manager. At the present time the proposal is, however, that the funds would simply be paid into court and when appropriate evidence has been obtained about the costs of funds management from the suppliers of that service, an application will then be made for the money to be then paid out.

1. Nevertheless, having regard to the figures for funds management that I have been provided with I am satisfied that, even on the amount that could be left to the Plaintiff if the private fund management's fees were fully used, that net amount would be appropriate in all of the circumstances of this case.

1. I therefore approve the settlement that has been made. I make orders and give judgment in terms of paragraphs 1, 2, 3 and 5 of the form of Consent Judgment. I note paragraphs 4 and 6. The Defendant is excused from attendance at any further application by the Plaintiff in respect of the funds paid into court.

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