Arranz v Goulburn Flight Training Centre Pty Ltd [2019] NSWSC 513

Supreme Court New South Wales

Medium Neutral Citation: Arranz v Goulburn Flight Training Centre Pty Ltd [2019] NSWSC 513 Hearing dates: 07 May 2019 Date of orders: 07 May 2019 Decision date: 07 May 2019 Jurisdiction: Common Law Before: Garling J Decision: (1) Pursuant to s 76 of the Civil Procedure Act 2005 I approve of the settlement of the proceedings. (2) I grant leave to the plaintiff to file in court a Notice of Discontinuance dated 7 May 2019. Catchwords: CIVIL PROCEDURE — Discontinuance of personal injury claim — Leave of court — personal injury sustained during tandem skydiving event — no prospects of success Legislation Cited: Civil Procedure Act 2005 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Principal judgment Parties: Jose Arranz (by his tutor Robin Arranz) (P) Goulburn Flight Training Centre Pty Ltd (D) Representation: Counsel: K Andrews (P) V Ripepi (D)

Solicitors: Slater & Gordon (P) Lander & Rogers (D) File Number(s): 2018/358128 Publication restriction: Not Applicable

EX TEMPORE JUDGMENT 1. Application is made for approval by the Court, pursuant to s 76 of the Civil Procedure Act 2005, of a settlement of the present proceedings. 2. The proceedings are a claim for damages for personal injury sustained by the plaintiff, Jose Arranz, on 21 November 2015. 3. The event which led to the claim was a tandem sky diving activity organised and conducted by the defendant. In the course of that activity, and at a time when the plaintiff and his sky diving instructor, to whom he was harnessed, were about 20 feet from the ground, a sudden and entirely unexpected strong gust of wind occurred, which caused the collapse of the parachute which had been deployed earlier in the skydive. As a consequence, the plaintiff and the sky diving instructor plummeted to the ground. The skydiving instructor was killed and the plaintiff suffered catastrophic injuries and disabilities. 4. On 21 November 2018, which was the last day before the expiration of the limitation period, the Statement of Claim in these proceedings was filed. That was done seemingly as a precautionary measure, so that any possible claim which the plaintiff might have would not be barred by reason of the expiration of the limitation period. 5. In recent negotiations between the parties, a settlement of the proceedings has been arrived at. As the plaintiff is a person under a legal incapacity arising from a severe brain injury which he suffered, it is necessary for the Court, pursuant to s 76(4) of the Civil Procedure Act, to approve any settlement or compromise of the proceedings. 6. The material which has been put before the Court overwhelmingly establishes that the plaintiff's catastrophic injuries and disabilities arose directly out of the accident to which I have earlier made reference. All investigations undertaken into the accident have comprehensively established that it was not inappropriate for the activity to take place at the time, in the location, and in the weather which existed. The investigations have also established that there was no possibility of equipment failure or interference in the parachute drop from any cause created by or derived from human intervention. 7. The Court has a comprehensive advice from counsel who is an experienced barrister in the field of personal injury. The advice provides a strong support for an approval of the settlement as being one in the best interests of the plaintiff. 8. I should also note that the plaintiff currently receives significant benefits, including the provision of care, through the National Disability Insurance Scheme ("NDIS"). Should the proceedings continue, , I would need to be satisfied in considering the best interests of the plaintiff, that any monetary award of damages which he made arise would be in an amount that would be more beneficial to the plaintiff, than the total volume of the monies and services he currently receives under the NDIS. 9. Based on the evidence before me, and Mr Andrews' clear advice, I am not at all persuaded that there is any real prospect of the plaintiff succeeding in this claim. As well, I am not persuaded that the result of any proceeding would provide to him benefits greater than those which he presently receives. 10. In all of the circumstances, I am well-satisfied that the proposed settlement should be approved and an order will be made to that effect. 11. I make the following orders: 1. Pursuant to s 76 of the Civil Procedure Act 2005, I approve of the settlement of the proceedings. 2. I grant leave to the plaintiff to file in court a Notice of Discontinuance dated 7 May 2019. .

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