Morrissey bhnf McMahon v McMahon

1. [1]

   The plaintiff in these proceedings was born on 4 July 2007 and is thus a person under legal incapacity within the meaning set out by s 3 of the Civil Procedure Act 2005 (NSW) (the Act). She is a person to whom s 76(1)(a) of the Act applies. The plaintiff is represented by her tutor, Deborah Lee-Anne McMahon, who is her maternal grandmother.

2. [2]

   By motion filed on 9 December 2014, approval was sought of an agreement reached between the parties in settlement of the plaintiff’s claim. The motion was supported by affidavits sworn by the plaintiff’s tutor, Deborah Lee-Anne McMahon and the plaintiff’s solicitor, Clayton James.

3. [3]

   That evidence establishes that on 28 August 2008 the defendant had a motor vehicle crash at a time when the infant plaintiff was located in the rear passenger seat of the car. The crash was reported to the police on the same day and an insurance claim was filed within one month of the accident. The insurer admitted liability on 9 December 2008. An application for exemption was granted on 23 August 2011 by the Claims Assessment and Review Service.

4. [4]

   On 13 October 2011, the plaintiff, by her tutor, Deborah Lee-Anne McMahon, filed a statement of claim seeking damages pursuant to the Motor Accidents Compensation Act 1999. The statement of claim pleads that the accident occurred as a result of the defendant’s negligence and thay, as a result of the collision, the plaintiff sustained injury, loss, and damage.

Consideration

1. [5]

   The settlement agreed between the parties is subject to the Court’s approval in accordance with s 76 of the Act which provides:

2. [6]

   Section 77 details the payment of money recovered on behalf of a person under legal incapacity:

3. [7]

   On the evidence it is clear that the settlement will protect, and is beneficial to, the plaintiff’s interests: Fairhurst v Fairhurst [2012] NSWSC 388

4. [8]

   As is the usual course, both parties tendered material to assist the Court in determining whether the settlement should be approved. The plaintiff’s solicitor included the following to his affidavit of 10 December 2014:

5. [9]

   Broadly, this material goes to the wide scope of the plaintiff’s injuries and the range of medical professionals engaged and to be engaged in her treatment and ongoing care.

6. [10]

   The proposed settlement appears to provide for the plaintiff’s needs now and into the future. Accordingly, pursuant to s76 of the Act I approve the settlement as set out in the signed Consent Judgment.