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Court Approval required for Settlement Involving Person’s with Legal Incapacity

A recent court decision of Curtis v Harden Shire Council [2016] NSWSC 82 has outlined the procedure required to have approval of the court for a settlement of personal injury proceedings commenced on behalf of persons under legal incapacity. This is in accordance with Section 76 of the Civil Procedure Act 2005 (NSW).

With respect to the matter of Curtis above, it was heard before the Supreme Court of NSW and the background of the case is as follows.

The mother of the minor’s in question was involved in a single motor vehicle accident on 20 August 2004. It occurred after a road maintenance program was performed on a rural highway, causing the mother to lose control of her vehicle and collide with a tree. She passed away as a result of the accident.

A claim was brought forward claiming for loss of expectation of financial benefit, and cost of care, supervision and domestic services to replace services which would have been provided by the deceased mother.

Liability was initially successfully denied by the Defendant, however on appeal, the NSW Court of Appeal ruled in favour of the Plaintiff. This lead to the eventual settlement by way of negotiation between the parties.


In coming before the court for approval of settlement, the solicitors for the Plaintiff’s provided affidavit’s evidencing the following as is required by law. The Affidavit:

  1. Stated whether the settlement reflects a compromise on liability;
  2. Provided up to date medical reports dealing with any relevant medical issues;
  3. Provided a statement by the guardian with respect to the minor’s current disability;
  4. Provided a statement with respect to how the settlement money will be invested;
  5. Detailed past out-of-pocket expenses;
  6. Detailed any other deductions from the settlement money such as Centrelink;
  7. Provided a current Medicare Notice of Charge;
  8. Provided a statement by the guardian noting that the amount allowed for past out-of-pocket expenses includes all accounts of which enquiries have been made;
  9. Provided an acknowledgement of the guardian that settlement is final.

Along with the above, a copy of a Barrister’s advice, or of the solicitor, was given dealing with the issues of liability and dealing with the various heads of damages.

Furthermore, the Plaintiff and their guardian were required to attend the approval.

In the above matter, His Honour was satisfied that all of the above had been satisfied and made the orders in accordance with the agreed settlement of the parties.

If you are a guardian for someone suffering from a legal incapacity, court proceedings can often be a stressful time. If you have any queries concerning the manner in which proceedings go ahead in matters involving legal incapacity, please do not hesitate to contact the experienced lawyers at Gerard Malouf and Partners for a free consultation.

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Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers

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