Jeanette Moran bht Scott Moran v State of New South Wales

By a statement of claim filed on 27 November 2024, the plaintiff by her tutor claims damages from the defendant arising out of psychiatric injury, loss and damage suffered by the plaintiff as a result of child abuse for which the defendant is claimed to be liable in negligence having regard, inter alia, to Pt 1B of the Civil Liability Act 2002 (NSW) and the Crown Proceedings Act 1988 (NSW).

In 1972 when the plaintiff was 12 years old she was removed from parental care and was committed to the care of the Minister, being made a ward of the State by order of the Children’s Court and she was placed into foster care with her cousin and her husband. The plaintiff’s case is that from about May 1972, when she was 13 years old, she was sexually abused by her male foster carer on a near daily basis for over six months. The plaintiff complained to her half-sister who reported the matter to the Department and police in November 1972. The plaintiff was interviewed by police concerning the matter at about this time. On 17 November 1972, the plaintiff was removed from her placement with those foster carers. The plaintiff was subsequently placed into two Girls’ Homes until she was 16 when she went to live with her half-sister. The plaintiff’s claim is that, as a result of the negligence of the defendant which led to her being abused, she sustained psychiatric injuries which resulted in her being diagnosed with Adjustment Disorder with depressed and anxious mood, Chronic Motor Tic Disorder and Mild Developmental Disability as a result of which she suffered numerous disabilities and has required and requires psychological treatment. In addition, she has suffered economic loss, both past and future. The plaintiff has also claimed aggravated and exemplary damages.

The plaintiff is currently 66 years of age.

The evidence of Dr Pratricia Jungfer, psychiatrist, in a report dated 18 March 2021 included not only the diagnoses that have been referred to but also that she was of the opinion that the plaintiff lacked capacity to manage her financial affairs in relation to any settlement monies. As to her ability to give instructions to her lawyers, Dr Jungfer stated:

Subsequently, another psychiatrist, Dr Justine Hoey-Thompson, provided a report dated 18 December 2023, in which she noted her diagnoses which were slightly different from those of Dr Jungfer but it did not appear to me that this difference was of significance for present purposes. Dr Hoey-Thompson also opined that at that time the plaintiff did have capacity to manage any settlement monies she may receive.

On 22 July 2024, Dr Jungfer provided a further report in which she confirmed her diagnoses but also expressed the following opinions:

As a result of those opinions, proceedings were commenced on the plaintiff’s behalf by her tutor, who is the plaintiff’s son.

As a result of an offer made at a mediation on 9 July 2025 an agreement was reached to resolve the matter subject to the Court approving the settlement. The terms of the settlement are set out in the Deed of settlement dated 9 July 2025 but signed by the plaintiff’s tutor on her behalf on 30 July 2025, which deed has been provided to the Court.

The matter has come before me because s 76(3) of the Civil Procedure Act 2005 (NSW) (the CPA) provides that any compromise or settlement of proceedings commenced by or on behalf of a person under legal incapacity may not proceed except with the approval of the Court. Moreover, s 76(4) empowers the Court either to approve or disapprove such an agreement. In light of the views of Dr Jungfer and the parties’ agreement, I am satisfied that the plaintiff is a person under an incapacity for the purposes of s 76.

The Civil Procedure Act itself does not provide any specific guidance as to the considerations that the Court should take into account in carrying out the task of approving or disapproving of the settlement. Nonetheless, it is well established by authorities such as Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 at [29] (Hammerschlag J) (cited with approval by the High Court in Wigmans v AMP Limited (2021) 270 CLR 623; [2021] HCA 7 at [112]) and Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840 at [3] (McCallum J) that:

The Court has been provided with an affidavit from the plaintiff’s son, who is also her tutor, and an affidavit from the plaintiff’s solicitor, Ms De Paoli, which I have taken into account. These affidavits outline the bases for the plaintiff’s claim as well as the nature and extent of her injuries and disabilities.

Ms De Paoli’s affidavit has annexed to it a statement of the plaintiff relating to her circumstances, what occurred and the consequences for the plaintiff as well as the reports of Dr Jungfer and the report of Dr Hoey-Thompson to which I have already referred. In addition, there was a report from a general practitioner Dr Pandey of 11 October 2023 noting the plaintiff’s complex health issues. That doctor expressed the view that in August 2023 there were no identifiable cognitive issues. Notwithstanding that view, I prefer the opinion of Dr Jungfer. Annexed to the solicitor’s affidavit was also correspondence from Medicare dated 1 April 2022 noting inter alia that there was nothing payable to Medicare as at that date. The solicitor’s understanding was that there was unlikely to be any change in regard to repayments to Medicare since April 2022 and that there would be no repayments to be made to Centrelink.

As to solicitor own client costs in addition to the costs that would be recoverable under the settlement, Ms De Paoli stated that this amount was expected to be no more than $5,500 and as far as she was aware there were no other deductions to be made from the settlement amount.

Ms De Paoli noted that the plaintiff and her tutor had agreed to the proposed settlement.

She was of the opinion, taking into account the issues in the case relating to liability, causation and quantum, that the proposed settlement was fair and reasonable.

In clause 8 of the Deed and in the solicitor’s certificate annexed to the deed, it was indicated that the plaintiff’s tutor had received independent legal advice as to the purport and effect of the Deed.

Ms De Paoli noted that the plaintiff requested that the Court order that the settlement sum be held in trust by the NSW Trustee and Guardian subject to a payment of $25,000 to the plaintiff to allow her to buy a car and some furniture. I note, however, that there was no information from the NSW Trustee and Guardian as to their charges or that they had agreed to manage the funds.

I have also had the considerable advantage of reading the confidential advice of Ms Nili Hali of counsel and have taken into account her opinion. I have noted her comments on issues in relation to liability as well damages and causation. Although the last phrase in par 73 of her advice seems to be at odds with what has occurred, I note in particular her opinion in the first part of that paragraph as well as the contents of pars 75 to 77.

I have also taken into account the evidence of the plaintiff’s tutor in his affidavit of 24 July 2025. His evidence includes his understanding of his mother’s circumstances and her case. He agrees that the proposed settlement is fair and reasonable taking into account all the circumstances. He also states that he understands that should the settlement be approved, the plaintiff will not be able to bring any further claim against the defendant in the future in relation to this matter. The tutor also notes that, in relation to deductions, the plaintiff has not sought any ongoing treatment that would give rise to any repayments being due to Medicare and he is aware of the amount of approximately $5,500 which would be due to the solicitors in addition to the amount of costs recoverable under the settlement and the net amount that would be payable to the plaintiff.

The tutor also said that he understood that there were risks and uncertainty involved if the matter proceeded to a hearing in court. He also stated that, although no sum of money would ever be sufficient for what his mother experienced as a child, he believed it was in her best interests to resolve her legal claim and the plaintiff was of the same opinion.

The plaintiff’s tutor has also requested that the net amount of settlement be held in trust for the plaintiff by the NSW Trustee and Guardian and also requested that the Court approve a release of $25,000 from the net amount of settlement in order to allow his mother to buy a car and furniture.

The usual order in a case such as this, when a settlement is approved, is for all of the money recovered on behalf of a person under legal incapacity to be paid into court under s 77(2) of the CPA. After that has been done, an application may then be made in the Equity Division in respect of how the funds are to be managed and whether any payments, such as for a car or furniture or solicitor and client costs, should be made out of the funds. The Court, at the time of giving approval, does not usually deal with those matters although it may do so under s 77(3) of the CPA. In the present case, where there may be some issue as to the plaintiff’s capacity, it would, in my view, be preferable if the management of the funds and any payment for the purchase of a car and furniture and solicitor costs were dealt with by way of an application to the Equity Division. This would also allow appropriate information to be obtained from the NSW Trustee and Guardian as to management of the funds.

Taking all of the above considerations into account and having regard to the amount of the agreed settlement I am satisfied that what is proposed is prudent and that it would be beneficial to the interests of the plaintiff if the settlement is approved. As I indicated, I would not however propose to make the orders in relation to financial management or a payment to the plaintiff at this time.

Accordingly, the Court orders that: