Borg v Gio [1999] NSWSC 46 (10 February 1999)

Last Updated: 17 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: BORG v. GIO [1999] NSWSC 46

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 12793/87

12794/87

HEARING DATE{S): 8.2.99, 9.2.99, 10.2.99

JUDGDMENT DATE: 10/02/1999

PARTIES:

Pauline Josephine BORG, by her tutor, Victoria Pauline Borg v. Government Insurance Office of New South Wales & Anor;

Victoria Pauline BORG v. Government Insurance Office of New South Wales & Anor

JUDGMENT OF: Greg James J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Plaintiff: P. Neil, QC/J.C.Carr

First Defendant: J.D. Hislop, QC/L.I. McGillicuddy

Second Defendant: G. Inatey, SC/A.M. Colefax

SOLICITORS:

Plaintiff: Bateman Battersby

First Defendant: J.M. Crestani

Second Defendant: Colin Biggers & Paisley

CATCHWORDS:

Motor vehicle accident; deceased parents; personal injuries; approval of compromise; no question of principle

ACTS CITED:

Compensation to Relatives Act

Damages (Infants & Persons of Unsound Mind) Act 1929

Protected Estates Act

DECISION:

Settlements sanctioned

JUDGMENT:

BORG -4-

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

No. 12793 of 1987

No. 12794 of 1987

GREG JAMES, J.

WEDNESDAY 10 FEBRUARY 1999

PAULINE JOSEPHINE BORG, by her tutor, VICTORIA

PAULINE BORG v. GOVERNMENT INSURANCE

OFFICE OF NEW SOUTH WALES & ANOR

VICTORIA PAULINE BORG v. GOVERNMENT INSURANCE

OFFICE OF NEW SOUTH WALES & ANOR

JUDGMENT

HIS HONOUR:

1 In actions in this court, the first commenced on behalf of the children of two deceased parents under the Compensation to Relatives Act, the second commenced by a plaintiff, one of those children who sustained severe personal injuries in the motor vehicle collision in which her parents were killed, the parties have been able to come to agreement.

2 In each case my sanction has been sought for that agreement as it is by way of compromise under the Damages (Infants and Persons of Unsound Mind) Act 1929. On the applications for approval, there has been tendered to me as evidence a summary of the plaintiff's case dealing with the probabilities of success in the action and the quantum of damage, summarising, so I am told, the relevant medical reports.

3 It is a summary to which the defendants have also assented. I am assured by senior counsel appearing for all parties that in their view the settlement of both actions is an appropriate one and that examination has been made of the medical reports and a commonalty of views amongst those experts providing reports has been noted.

4 The substance of those views is noted at the conclusion of the summary. The injuries were appalling. Provision for the future is understandably very large. There is little discount involved in the settlement for the possibility of loss of the action although there was raised by the pleadings, and no doubt to be raised in the evidence, a prospect that the plaintiff might fail against the first defendant on a defence of inevitable accident, and could also fail against the second defendant, a local council on the basis that it could not be shown that council had responsibility for the slipperiness of the road which would have been the basis for that defence of inevitable accident. Nonetheless, on the calculations, that prospect seems little, if at all, to have been taken into account.

5 The sums providing for each head of damages in the personal injuries action referred to in that summary seem proper. In those circumstances, I am of the view that I can approve the settlement of that action and since I am assured that the sum in respect of the Compensation to Relatives action accords with the general table in relation to damages appearing in the standard text, and with the assessment by all counsel of the means of the deceased, affords appropriate provision for the children, and I am further informed that provision is to be divided equally amongst the children, I am, in the context of the provision, made for the plaintiff in the other action, of the view that settlement might also be properly approved in those proceedings.

6 In each matter I sanction the settlement in respect of Pauline Josephine Borg who is the plaintiff by her tutor Victoria Pauline Borg in the first action and one of the children on behalf of whom the action was brought in the other action which itself is brought by Victoria Pauline Borg.

7 I enter judgment and order costs in accordance with the terms of settlement in action 12794/87, paragraphs 1, 2, 3, 4 and 8. I note paragraphs 5, 6, 7, 9 and 10; in accordance with the terms of settlement in action 12793/87, paragraphs 1, 2, 3, 4, 5, 8, 9 and 10. I note paragraphs 6, 7, 11 and 12.

8 I note that I am informed by counsel for the plaintiff that an application will be brought immediately to enable the appointment of the Protective Commissioner, an officer of the court, under the Protected Estates Act in respect of the estate of the plaintiff Pauline Josephine Borg.

9 The monies payable pursuant to the judgment shall be paid to the Protective Commissioner in his capacity as an officer of the court to be held for and on behalf of that plaintiff pursuant to the Damages (Infants and Persons of Unsound Mind) Act 1929 and in accordance with such order as is made under the Protected Estates Act.

10 I note further that in respect of those monies payable under the judgment, the monies to be paid to the Commissioner shall be paid subject to any deduction under the Social Security Legislation or that the Health Insurance Corporation is legally entitled to make.

11 In respect of one-third of the sum provided for by the judgment in the action under the Compensation to Relatives Act, I make the like orders as I have made in respect of the action for personal injuries.

12 I direct by consent that the payment of the amounts to be paid to the Protective Commissioner on behalf of the plaintiff Pauline Josephine Borg be consolidated to the intent that one fund shall be established by the Commissioner on receipt.

13 Further I grant liberty to the parties to apply on seven days notice in the event of there being any difficulty in the implementation of the appointment of the Protective Commissioner.

LAST UPDATED: 15/02/1999