Patricia Punshon bht Bradley Mills-Punshon v Maryville Tavern Pty Limited

[2024] NSWSC 341

Supreme Court

New South Wales

Medium Neutral Citation:

Patricia Punshon bht Bradley Mills-Punshon v Maryville Tavern Pty Limited [2024] NSWSC 341

Hearing dates:

27 March 2024

Date of orders:

27 March 2024

Decision date:

27 March 2024

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1)   Orders in accordance with par 1, par 6 (with the words “to the plaintiff” deleted and in their place the words “into court” inserted), and par 8 (with pars (b) and (c) deleted) of the Form of Consent Judgment.

(2)   An order that there be judgment for the plaintiff against the defendant in the sum specified in par 2 of the Form of Consent Judgment with costs and disbursements agreed in the sums specified in par 2 of the Form of Consent Judgment.

(3)   The Court notes the agreement between the parties that the plaintiff has a liability for contributory negligence of 70%.

(4)   The Court notes par 3, the acknowledgements in pars 4 and 5, the undertaking in par 7 and the agreement between the parties in par 9 of the Form of Consent Judgment.

Catchwords:

CIVIL PROCEDURE – settlement approval – whether settlement in best interests of person under disability

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 76

Cases Cited:

Bacon by his tutor Sarah Rea v Western New South Wales District [2023] NSWSC 1840

Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Re Ley’s Trusts [1964] 1 WLR 640

Category:

Procedural rulings

Parties:

Patricia Punshon by her tutor Bradley Mills-Punshon (Plaintiff)
Maryville Tavern Pty Limited (Defendant)

Representation:

Counsel:
G Schipp (Plaintiff)
S Sorefan (Defendant)

Solicitors:
Bale Boshev Lawyers (Plaintiff)
Kennedys Law (Defendant)

File Number(s):

2020/00056851

REVISED EX TEMPORE JUDGMENT

1. This is an application for judicial approval of a settlement pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW). The approval is necessary because the plaintiff, Patricia Punshon, is under a legal disability and these proceedings have been carried on by her tutor, Mr Bradley Mills-Punshon, who is the plaintiff's son.

2. In support of the application for approval the Court has been received the following:

1. an affidavit of Ashley James Davey, the plaintiff's solicitor, affirmed 29 February, 2024;

2. an affidavit of Bradley Mills-Punshon affirmed 1 March, 2024; and

3. the confidential letter of advice from Mr Schipp dated 4 March 2024.

3. The affidavit sworn by the plaintiff's solicitor annexed a considerable amount of expert and medical material.

Background

4. The background to this matter can be sufficiently stated by noting that the plaintiff was born in November 1947 and is now 76 years of age. The defendant is the company that operates the Maryville Tavern in Maryville, New South Wales, and is alleged to be legally responsible for any liability that arises from the operation of the tavern and the work conducted by the staff employed at the tavern.

5. The essential claim of the plaintiff is that, while attending a party at the tavern on the evening of 26 February 2017, the plaintiff slipped while walking down wet tiled stairs in an outdoor area. She struck her head in the process and suffered a severe fracture to the skull and significant brain injury.

6. The plaintiff subsequently received medical treatment, including numerous surgical interventions at John Hunter Hospital in Newcastle, but, unfortunately, she did not recover and went into functional decline.

7. The evidence discloses that the plaintiff remains significantly disabled following the events and has been incapable of managing her financial, medical and legal affairs.

8. The matter has resolved, subject to the approval of the Court, by way of a proposal settlement agreement reached after 12 December 2023.

9. In relation to the proposed settlement, the tutor has received advice about the offer from Mr Davey and from the plaintiff's barrister, Mr Schipp, and having considered all the circumstances, the tutor gave instructions to accept a proposed settlement offer. The terms of the proposed settlement are set out in the form of a consent judgment signed on behalf of the parties and annexed to the affidavit of Mr Davey.

Approval: the relevant principles

10. The relevant principles in relation to approval of such settlements are well-established. When the Court is asked to approve a settlement of proceedings commenced by or on behalf of a person under legal incapacity, its function is protective. The ultimate question is whether any compromise entered into is beneficial to the interests of the person and thus in their best interests; Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 at [29] (Hammerschlag J).

11. It is the Court's responsibility to determine this matter for itself, albeit it will be assisted by the views of the plaintiff's legal representatives that they consider the settlement to be beneficial to and in the best interests of the plaintiff. The Court, as part of its assessment, is to consider the advantages and disadvantages of the litigation continuing, not only in terms of whether the plaintiff might secure a more advantageous award from the Court at trial but also issues such as the prospects of an appeal and the costs and pressures imposed on the plaintiff if the litigation were to continue. The tutor should also provide their consent to the compromise.

12. I have also had the considerable benefit of reading the confidential letter of Mr Schipp of counsel dated 4 March 2024. I have taken into account counsel's exposition of the factual circumstances and his observations and opinions in relation to both liability and quantum. It is not necessary to discuss them in more detail here.

13. I have also had regard to the affidavit of the plaintiff's tutor, Mr Mills-Punshon. In that affidavit, it is acknowledged that, if approved, the proposed settlement would be full and final and that, in effect, there will no further right to recover compensation from the defendant in respect of the subject dispute in the present matter.

14. The tutor also gave his understanding of the proposed settlement, including why it was appropriate and what might be involved in its a practical implementation, if approved, based on the advice given by the solicitor and counsel for the plaintiff.

15. I understood the tutor to be of the view that the proposed settlement was reasonable and that it was in the best interests of the plaintiff.

Assessment and consideration

16. In light of the information and opinions referred to above, and having regard to the difficult issues likely to be required to be resolved and the not insubstantial risks if the matter proceeded to trial, I am satisfied the proposed settlement to the substantial effect of what is set out in the proposed consent judgment signed on behalf of the parties is reasonable and beneficial and that it is in the best interests of the plaintiff that it should be approved.

Orders

17. For those reasons, in relation to the form of consent judgment signed by the solicitor for the plaintiff on 6 February 2024 and the solicitor for the defendant on 23 February 2024 (the Form of Consent Judgment) the orders of the Court are:

1. Orders in accordance with par 1, par 6 (with the words “to the plaintiff” deleted and in their place the words “into court” inserted), and par 8 (with pars (b) and (c) deleted) of the Form of Consent Judgment.

2. An order that there be judgment for the plaintiff against the defendant in the sum specified in par 2 of the Form of Consent Judgment with costs and disbursements agreed in the sums specified in par 2 of the Form of Consent Judgment.

3. The Court notes the agreement between the parties that the plaintiff has a liability for contributory negligence of 70%.

4. The Court notes par 3, the acknowledgements in pars 4 and 5, the undertaking in par 7 and the agreement between the parties in par 9 of the Form of Consent Judgment.

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