Barlin v Gayed

[2022] NSWSC 278

Supreme Court

New South Wales

Medium Neutral Citation:

Barlin v Gayed [2022] NSWSC 278

Hearing dates:

11 March 2022

Date of orders:

16 March 2022

Decision date:

16 March 2022

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

(1)  Note that this matter has settled subject to approval, in accordance with the terms of a consent judgment dated 7 March 2022 and signed by the legal representatives of the parties.

(2) Approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005.

(3)  Make orders in accordance with paragraphs 1 to 8 inclusive of that consent judgment.

(4) Order in accordance with s 77(3) of the Civil Procedure Act that the judgment sum referred to in paragraph 1 of the consent judgment be paid to the plaintiff or as she may direct.

Catchwords:

SETTLEMENT – plaintiff under a legal disability – whether in the best interests of the disable person – whether settlement sum should be paid directly to the plaintiff

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 76(4), 77(3)

Category:

Principal judgment

Parties:

Michelle Barlin by her tutor Jennifer Barlin (Plaintiff)
Dr Emil Gayed (First Defendant)
Hunter New England Local Health District (Second Defendant)

Representation:

Counsel:
R Royle (Plaintiff)
L Boyd (Defendants)

Solicitors:
Carroll & O’Dea Lawyers (Plaintiff)
Crown Solicitor’s Office (Defendants)

File Number(s):

2020/309443

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Michelle Barlin sues by her tutor for damages for negligence arising from surgery performed by Dr Gayed at the Manning Base Hospital on 23 May 2013. On that day, Ms Barlin underwent a total abdominal hysterectomy and bilateral salpingoophrectomy in circumstances where she maintains she was not advised of the possible risks associated with the procedure, including that it would render her infertile.

2. Ms Barlin was 30 years old at the date of the surgery. She was married with two children. Prior to the procedure she had wanted to have more children. That prospect has now been foreclosed.

3. I am now asked to approve a settlement of the proceedings in accordance with the terms of a consent judgment dated 7 March 2022. In support of that application, I have been provided with affidavits from Ms Barlin, her husband Paul Barlin and her mother-in-law Jennifer Barlin. In addition, Ms Barlin’s solicitor has provided a very long affidavit annexing, among other things, several medical reports including the following:

1. Report of Professor Michael O’Connor dated 1 October 2020.

2. Report of Professor Lorraine Dennerstein dated 1 July 2021 and 24 September 2021.

3. Report of Dr Anne-Marie Rees dated 11 August 2021.

4. In addition to the medical evidence, I have been provided with a confidential advice on settlement dated 8 November 2021 prepared by Mr Richard Royle of counsel on behalf of Ms Barlin. Mr Royle recommends the proposed settlement.

5. Ms Barlin suffers from an intellectual disability. The appointment of a tutor for the purposes of these proceedings was based upon the fact that her cognitive and intellectual limitations necessitated the provision of assistance to her in the conduct of the litigation. Her condition is also intimately connected to her case against the defendants and the degree to which her appreciation of the nature and extent of the treatment she received was either adequately explained or properly understood by her.

6. The proposed settlement sum takes account of the fact that Michelle Barlin’s current psychological and psychiatric reaction to the surgery, and the resultant permanent inability to have more children, is overlaid upon an unfortunate personal history of bullying at school and since, with the consequence that she suffered from pre-existing depression and anxiety, PTSD and obsessive compulsive disorder. Dr Rees is not of the opinion that she currently requires psychological intervention. Professor Dennerstein is of the view that Dr Gayed’s surgery exacerbated her pre-existing anxiety and depression, both because of the physical effect of the surgery in causing surgical menopause and the anguish related to her loss of fertility. However, Professor Dennerstein also considered that her current level of psychological symptoms specifically related to the surgery is mild in intensity and does not require specific therapy. The defendants’ psychiatric evidence suggests that the aggravation of any pre-existing psychiatric harm caused by the negligence alleged has now resolved.

7. I am satisfied that the amount of the settlement is appropriate in the circumstances and that the settlement is accordingly in the best interests of the plaintiff. I propose to approve it.

8. A separate application is made on Michelle Barlin’s behalf that the settlement sum be paid directly to her or to her solicitor on her account. The settlement is on a plus costs basis and there are no solicitor-client costs. That application is supported by evidence to suggest that she is capable of managing her own affairs or is capable of doing so in her current family setting, in which she has adequately performed with assistance for some time. That evidence is as follows.

9. Michelle Barlin is described by her mother-in-law as “largely illiterate” but is nevertheless able to perform day to day activities which involve “small amounts of literacy and numeracy”. For example, Michelle has worked for a number of years and has managed her budget within the household. She and her husband manage their own money. Michelle has independent access to her personal bank accounts which she regularly uses to deposit and withdraw funds. She also makes decisions for her own shopping needs and those of her household.

10. Michelle and her husband Paul have been in a relationship for about 19 years and have been married since 2010. They have two teenage children. Paul worked as a chef until about five years ago but is now Michelle’s full-time carer. He confirmed that Michelle is currently working as a catering assistant at a nursing home, having previously worked at McDonald’s for about ten years. Michelle pays the rent and bills such as electricity. Michelle assists her younger son with his arithmetic homework but not with reading or writing.

11. It seems to me that the evidence comfortably supports the conclusion that Michelle Barlin is, in the context of her family and its associated support network, able to manage her own affairs. An exercise of the protective nature of the Court’s jurisdiction needs to yield, where appropriate, to an acceptance of the historical realities and the setting in which the nominally incapable person has managed his or her own affairs to date. The appointment of a tutor for the conduct of these proceedings was necessitated by Michelle Barlin’s extremely limited literacy and of her attenuated ability to grasp and process even relatively uncomplicated legal concepts. The appointment was not a capitulation to the suggestion that she was or remains incapable of managing her own everyday affairs in the community with the assistance and support of her family. To suggest otherwise would be to maintain an overly pedantic view of the concept of management in the circumstances that I have outlined.

12. It seems to me to be an appropriate case to order that the settlement monies be paid directly to Michelle Barlin or as she may direct.

13. I was asked in addition to make an order for the removal of the tutor: UCPR 7.18. That order is not opposed by the tutor herself. The defendants are not presently relevant contradictors to the application.

14. I do not consider that such an order is required. Having regard to my conclusion that the proposed settlement is in the best interests of the plaintiff, the orders I intend to make will bring an end to these proceedings. The tutor’s role as the person commencing or carrying on the proceedings will simultaneously come to an end with the making of the orders.

15. The orders that I make are as follows:

1. I note that this matter has settled subject to approval, in accordance with the terms of a consent judgment dated 7 March 2022 and signed by the legal representatives of the parties.

2. I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005.

3. I make orders in accordance with paragraphs 1 to 8 inclusive of that consent judgment which for identification I will initial, date with today’s date and place with the papers.

4. I order in accordance with s 77(3) of the Civil Procedure Act that the judgment sum referred to in paragraph 1 of the consent judgment be paid to the plaintiff or as she may direct.

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Decision last updated: 16 March 2022