King bht Maycock v Central Coast Council; Maycock v Central Coast Council

1. [1]

   This is an application for judicial approval of two settlements pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW) (‘the Act’). The approval is necessary in the first matter, because the plaintiff is not yet 18 years of age. The plaintiff’s mother, who is his tutor, is the plaintiff in the second matter. The approval is necessary in the second matter because the plaintiff brings an action pursuant to the Compensation to Relatives Act 1987 (NSW) (“CRA”) on her behalf and on behalf of her estranged de facto husband Mr Neil Carrington King, who is currently under a disability, in her capacity as administrator of the estate of her late son Archibauld. In the same action she also brings a claim pursuant to the Civil Liability Act 2002 (NSW) for mental harm, which has been settled and does not require court approval. I will, however, make orders by consent today with respect to that part of the claim. The defendants in both proceedings are Central Coast Council and Mr Carrington’s Compulsory Third Party Insurer.

Background

1. [2]

   The actions come about as a result of a motor vehicle accident (“the accident”) which occurred at Fagans Road, Lisarow (“the road”) on 21 February 2021. The accident occurred when the plaintiff’s then partner Mr King was driving his and Ms Maycock’s two sons to their Saturday morning soccer game on the Central Coast. The older son, Archibauld King, then aged 12 years, was seated in the front of the vehicle driven by Mr King (“the vehicle”). The younger son, Sethan King, then aged 11 years, was seated in the rear passenger seat of the vehicle on the driver’s side.

2. [3]

   As Mr King was driving the vehicle along a descending bend in the road, the vehicle’s tyres suddenly lost traction with the road’s surface. The vehicle then slid off the road and collided heavily with a telegraph pole. Archibauld was fatally injured in the collision. Sethan survived but suffered and continues to suffer psychiatric injuries as a result of the incident. Mr King also survived but suffered a catastrophic brain injury. He has separate proceedings on foot in which his next friend is the NSW Trustee and Guardian. In accordance with orders made by Elkaim AJ made on 4 August 2025, Mr King and the Council agreed to settle the issue of liability on very favourable terms to Mr King, who is now 53 years of age. Damages are to be agreed or assessed, and it is expected that damages payable to Mr King will be very significant as he requires indefinite 24-hour care.

3. [4]

   Sethan’s claim

4. [5]

   Liability has been admitted by both defendants. It is not in dispute that Sethan has suffered a recognised psychiatric injury for which he will receive damages.

5. [6]

   After extensive negotiations, the plaintiff and the defendants have reached a proposed settlement with respect to Sethan’s claim and the matter is now before me for approval of that settlement.

6. [7]

   In support of the application for approval, I received the following:

Relevant principles

1. [8]

   In an application for approval of a settlement pursuant to s 76(3) of the Act, the Court’s function is protective. The ultimate question is whether the proposed settlement is beneficial to the interests of the person under a disability or in their best interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (‘Mills’) at [29]; Budini v Sunnyfield [2021] FCA 1540 at [10].

2. [9]

   It is the Court’s responsibility to determine this question, albeit with the assistance of confidential advice provided by counsel for the plaintiff: Mills at [29]; Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 (‘Scandolera’) at [27].

3. [10]

   In its determination, the Court is to consider the “advantages and disadvantages of the litigation continuing not only in terms of whether a more advantageous award may be achieved 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”: Scandolera at [29].

4. [11]

   The tutor who brings the action on behalf of her son, should also assent to the compromise, which has occurred here.

Consideration

1. [12]

   Although liability has been admitted, damages are still to be determined by a court. In particular, taking into account that Sethan is not yet 16 years of age, damages for future economic loss is highly speculative.

2. [13]

   I have carefully considered the opinions and conclusions of senior and junior counsel in the confidential advice. I have also taken into account the matters and opinions expressed by Ms Maycock and Mr Newhouse in their respective affidavits, as well as the advantages and disadvantages of this litigation continuing.

3. [14]

   In my view, there is a risk that Sethan may receive an amount in damages that is less than the settlement amount.

4. [15]

   Taking into account all the material that has been placed before me, in my opinion the proposed settlement is a compromise that is beneficial to, and in the best interests of Sethan. I propose to approve that settlement.

5. [16]

   Ms Maycock’s claim

6. [17]

   As I have said, there are two components to Ms Maycock’s claim. The first, which does not require court approval, is her claim for mental harm which has settled. The second component is pursuant to the CRA, which Ms Maycock brings as administrator of Archibauld’s estate and is based on the proposition that both she and Mr King had a reasonable expectation, or a chance which was not speculative or fanciful, of financial benefit by reason of income that Archibauld would have derived from a future career as a professional football player. It is fair to say that such a claim, whilst unusual in that it does not concern the death of an existing breadwinner, might have been successful had there been compelling evidence of several factors.

7. [18]

   Ms Maycock wishes to walk away from the CRA claim in light of the evidence which has been painstakingly gathered on her behalf, and on behalf of Mr King. Approval of the settlement of the CRA claim is necessary because it was brought not only on Ms Maycock’s behalf, but on behalf Mr King who is a person under a legal incapacity due to his brain injury.

8. [19]

   In support of the application for approval, I received the following:

9. [20]

   I repeat the principles set out in paras [7] to [9] above.

10. [21]

    I have carefully considered the opinions and conclusions of senior and junior counsel in the confidential advice. I have also taken into account the matters and opinions expressed by Ms Maycock and Mr Newhouse in their respective affidavits, as well as the advantages and disadvantages of the CRA litigation continuing.

11. [22]

    In my view, there is a very serious risk that the CRA action will be unsuccessful and that Ms Maycock will be liable for the considerable costs of the defendants. If that eventuates, bearing in mind her injuries and diminished capacity for employment, that will impact her ability to care for Sethan, which is very much contrary to Mr King’s interests.

12. [23]

    I have taken into account all the material that has been placed before me. In my opinion the proposed settlement is a compromise that is beneficial to, and in the best interests of Mr King. I propose to approve that settlement.

Orders

1. [24]

   In Sethan’s claim, proceedings 2024/00036943, I make the following orders, noting signed Consent Orders:-

   1. (1)

      I approve the settlement pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

   2. (2)

      I make the orders and notations in the Consent Orders signed by the parties and placed with the papers.

2. [25]

   In Ms Maycock’s claim, proceedings 2024/00036962, I make the following orders:-

   1. (1)

      I approve the settlement made with respect to the Compensation to Relatives Act 1897 (NSW) claim set out in paragraphs 54 to 58 inclusive of Ms Maycock’s Amended Statement of Claim filed on 9 July 2024 pursuant to 76 of the Civil Procedure Act 2005 (NSW).

   2. (2)

      Judgment for the defendants with respect to the Compensation to Relatives Act 1897 (NSW) claim set out in paragraphs 54 to 58 inclusive of Ms Maycock’s Amended Statement of Claim filed on 9 July 2024.

   3. (3)

      Each party to pay her, his and its own costs with respect to the Compensation to Relatives Act 1897 (NSW) claim set out in paragraphs 54 to 58 inclusive of Ms Maycock’s Amended Statement of Claim filed on 9 July 2024.

   4. (4)

      With respect to Ms Maycock’s claim for personal injuries damages arising from pure mental harm set out in paragraphs 1 to 53 inclusive of her Amended Statement of Claim filed on 9 July 2024, by consent I order:

   5. (5)

      I note paragraphs 4 to 10 of the Consent Orders signed by the plaintiff on 3 December 2025 and by the defendants on 2 and 3 December 2025.