Chalker v Nominal Defendant [2003] QDC 48

State Reporting Bureau Transcript of Proceedings 1 4 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2003] QDC 048 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No D2450 of 2000 JOHN DOUGLAS CHALKER (A YOUNG PERSON BY HIS LITIGATION GUARDIAN CHERYL ANNE CHALKER) Plaintiff and NOMINAL DEFENDANT Defendant BRISBANE ..DATE 30/04/2003 ORDER CATCHWORDS: UCPR Rule 98 - sanction of settlement of infant's claim - Claim for personal injuries - settled on first day of trial - unidentified car struck plaintiff in glancing blow on bicycle - claim for psychological and physical injuries - REVISED COPIES ISSUED State Reporting Bureau Date: 9 May, 2003 -- 1 of 7 -- 30042003 T03/LJW38 M/T CMS47/2003 (Robin DCJ) ORDER 2 1 10 20 30 40 50 60 material offered to the Court to explain nature of the matter showed conflicting medical opinions as to the nature and extent of the injuries - numerous factors pointed to difficulties potentially faced by plaintiff should the matter proceed to trial - sanction of settlement given - Court held it desirable to avoid paying Public Trustee charges for eight month period until plaintiff became entitled to the settlement amount - defendant's offer included payment of the Public Trustee's charges - funds organised to save defendant, through its offer, of those charges. HIS HONOUR: This is the trial of an infant's personal injuries action arising out of an unusual motor vehicle accident which, during the morning of the first day for which it was set down for trial, resolved. The Court's task became one of determining whether or not to sanction the settlement which the parties arrived at. Summarised, it involves the payment by the defendant, which is the Nominal Defendant, of $62,500 and costs. A large amount of material was tendered yesterday for me to read - the parties taking the view that it was appropriate for the Court to be informed of the somewhat unusual circumstances, the full implications of which are highly contentious between the parties - so the Court could have that background, from the point of view of determining whether or not to sanction the settlement. The infant plaintiff, who sues by his litigation guardian, his mother, will turn 18 on the second last day of the year. The accident itself was an unusual one. Mr Chalker was riding his -- 2 of 7 -- 30042003 T03/LJW38 M/T CMS47/2003 (Robin DCJ) ORDER 3 1 10 20 30 40 50 60 bicycle and hit by an unidentified motor vehicle in what must have been a glancing kind of blow on his right leg. He did not fall off his bike, nor did he seek immediate treatment, but within a couple of days he saw his local GP. He made no complaint at that stage of any injury to his left leg, but subsequently has asserted that it was injured as well. There is also a claim for psychological - psychiatric type damages. Those circumstances are ones in which if the plaintiff were wholly successful, the damages might be very high. On the other hand, there are obvious risks. It is not appropriate for the Court to pronounce anything in the nature of a final or even a preliminary view about the material tendered: however, I observe that it reveals a striking conflict of medical opinion, both orthopaedic and psychiatric. There are obviously serious issues as to whether or not the plaintiff could establish that his difficulties in the educational environment, for example, should be attributed to the accident and even whether it could be established that all of the problems complained of in his legs could be attributed to the accident, given that it was fortunately a minor one to all appearances, on the day. In relation to the risk faced in the first respect, I would refer to a decision of my own in Dermody v Adam (2000) QDC 355 and in relation to the second, another more recent decision of my own, Henson v. Clarey (2003) QDC 013. Reference to those -- 3 of 7 -- 30042003 T03/LJW38 M/T CMS47/2003 (Robin DCJ) ORDER 4 1 10 20 30 40 50 60 matters indicates the appropriateness of the plaintiff's legal advisers taking a cautious approach. I would mention, also, that the difficulties on the plaintiff's side were rendered more excruciating by the existence of offers to settle by the defendant which, if the defendant had a favourable outcome at trial, might have resulted in dire costs consequences for the plaintiff, pursuant to rule 361. Added to those difficulties, which all point to a considerable amount of risk in the plaintiff proceeding to trial, is the assessment of his mother in her statement under Rule 98 confirming that it is not in his interest to go through the stress of a trial, which presumably would have required him to give evidence. Considerations of prudence obviously loom large for the parties and their legal advisors in circumstances like this and the Court ought to acknowledge them. I am willing to reach the view that the Court's sanction ought to be granted. Pronouncing it has been withheld for a time today because of the need for compliance with rule 98(2)(a) and (b) to be achieved. While these are stated in mandatory terms, I accept there can be circumstances in which the Court might relieve parties of having to comply to the letter, excusing non-compliance with either (a) or (b), for example, in an appropriate case. It would have to be a highly exceptional case in which both requirements were overlooked. -- 4 of 7 -- 30042003 T04/BGS13 M/T CMS47/2003 (Robin DCJ) 5 ORDER 1 10 20 30 40 50 60 I am pleased to note that by this afternoon, there is no need for the Court to consider doing that. It is true that Mr McDonald's affidavit does not pick up the precise terminology of rule 98(2)(a), but I don't think that is called for in all the circumstances. Mr McDonald deposes to facts which explain why his advice to his client has been to accept the compromise offered. That is also the view of counsel for the plaintiff, Mr Hoskins, who has, in accordance with the practice, provided the Court with a memorandum of advice signed by him and dated yesterday. That will be placed in a sealed envelope, marked with the title of the proceedings and the descriptions, "Counsels Opinion". I will place it in the envelope now; it will be sealed by me now and it will be placed on file. I anticipate that it will not be opened without an appropriate order. I will make the order in terms of the initialled draft, and perhaps ought to comment on one aspect of it which is that the fund which will become available after the defendant satisfies, out of the agreed figure, any proper claims of the Health Insurance Commission or under the Social Security Act (and after the satisfaction of the litigation guardian's out of pocket expenses and some costs) is not to be paid to the Public Trustee. -- 5 of 7 -- 30042003 T04/BGS13 M/T CMS47/2003 (Robin DCJ) 6 ORDER 1 10 20 30 40 50 60 The Court has been given by counsel to understand that any funds dealt with in that way attract both a percentage fee when the Public Trustee receives the money and then periodical percentage fees for management following that. There are only eight months remaining until the plaintiff will be entitled to demand payment. I expressed yesterday the view that it would be regrettable if the fund were depleted by the customary charges of the Public Trustee. It turns out, today, that the defendant's offer included the payment by it of the Public Trustee's charges, so that the effect of alternative arrangements is to protect the defendant's financial situation rather than the plaintiff's. I cannot see that that ought to make a difference. The Court ought to be alive to desirability of not making orders that have an adverse financial effect on a defendant, even one such as the nominal defendant, just as it would be in the case of a plaintiff under any kind of legal disability. I order as per initialled draft. ----- -- 6 of 7 -- 30042003 T04/BGS13 M/T CMS47/2003 (Robin DCJ) 7 ORDER 1 10 20 30 40 50 60 -- 7 of 7 --