Burns by her tutor Newman v Ratnam

[2020] NSWSC 353

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Burns by her tutor Newman v Ratnam [2020] NSWSC 353
Hearing dates:	In Chambers - on the papers
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Common Law
Before:	Wright J
Decision:	(1) Orders in accordance with paragraphs 1 and 2 of the form of consent orders signed on behalf of each of the parties which I have signed and dated and to which the Court seal has been affixed on 3 April 2020.  (2) Orders in accordance with paragraphs 1, 2, 3, 4 and notes paragraph 5 of the form of consent judgment signed on behalf of each of the parties which I have signed and dated and to which the Court seal has been affixed on 3 April 2020.
Catchwords:	CIVIL PROCEDURE –Proceedings brought by person under legal incapacity – Settlement of proceedings – Court Approval – No points of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Cases Cited:	Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840
Category:	Principal judgment
Parties:	Nadia Burns by her tutor Lizabeth Newman (Plaintiff) Gwatkin Ratnam (First Defendant) Murrumbidgee Local Health District (Second Defendant)
Representation:	Counsel: M Cranitch SC with B C A Bradley (Plaintiff)   Solicitors: Perrot’s Solicitors(Plaintiff) Norton Rose Fulbright (First Defendant) McCabe Curwood (Second Defendant)
File Number(s):	2012/21327

Judgment

1. The plaintiff by her tutor claims damages from the defendants for nervous shock arising out of the tragic death of her father in 2009 when she was about three and a half years old. In the two weeks prior to his death, her father had been under the care of the first defendant, a registered medical practitioner, and received treatment at Hay Hospital and Griffith Base Hospital, which were both hospitals operated by the second defendant. The plaintiff’s case was that the defendants were negligent in their care and treatment of her father.

2. The parties have agreed to settle the plaintiff’s claim on terms that are recorded in the form of consent judgment signed on behalf of all the parties. Section 76(3) of the Civil Procedure Act 2005 (NSW) provides that any compromise or settlement of proceedings commenced by a person under legal incapacity, such as the plaintiff in this case, may not proceed without the approval of the Court. Section 76(4) empowers the Court to approve or disapprove the agreement.

3. The Civil Procedure Act itself does not provide any guidance as to the considerations that the Court should take into account in carrying out the task of approving or disapproving the settlement. However, it is well established that:

1. the Court's function is essentially protective;

2. it should scrutinise the terms of the settlement for the purpose of protecting the interests of the person who is under a legal incapacity; and

3. approval depends ultimately on whether the settlement is beneficial to the interests of that person,

Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840 at [3].

4. I have had the considerable advantage of reading the confidential joint memorandum of advice of Mr Cranitch of Senior Counsel and Mr Bradley, who appeared for the plaintiff, in relation to the matter.

5. I have also had regard to the affidavit of the solicitor for the plaintiff, Mr Rigon, sworn on 17 March 2020. He explained that the plaintiff’s tutor is her mother, that she has agreed to the settlement and understands that, subject to approval, it is in full and final settlement of any claim that the plaintiff has now or will potentially have against the defendants in respect of the subject matter of the present proceedings.

6. Mr Rigon also provided a notice from Medicare, current until 13 June 2020, stating that the amount of $491.95 is payable to Medicare in relation to the plaintiff’s claim for compensation. His affidavit also had annexed to it a considerable number of experts’ reports relating to both the liability and damages aspects of the plaintiff’s claim.

7. There are, it appears to me, not insubstantial issues in relation to liability, as touched upon in the expert reports of Assoc Prof Raftos, Dr Lynch and Dr Jammal. There were divergent views as to the whether the required standard of care was met in relation to the treatment provided by the defendants to the plaintiff’s father.

8. In relation to damages, besides the inherent difficulties in establishing psychiatric illness arising from events when the plaintiff was only three and a half years old, the plaintiff’s case was rendered more complicated because of the borderline issue identified by Dr Rikard-Bell in his report of 2 July 2018 which he said was unrelated to her father’s death. Notwithstanding this, Dr Rikard-Bell was of the opinion that her current disabilities were significant and substantially attributable to the trauma following the loss of her father. On the other hand, Prof Mattick in his 6 August 2019 report expressed the opinion that the symptoms experienced by the plaintiff in 2017/2018 were related to matters that occurred in the then current domestic context. Furthermore, Prof Mattick did not agree that the plaintiff had any incapacity due to the death of her father. Thus, the medical opinions concerning the plaintiff’s relevant condition presented competing views as to both nature and causation of the plaintiff’s condition. As a result, the plaintiff’s success or failure would be likely to depend on which medical opinions were accepted, even if liability were established.

9. It also appears that the continuation of these proceedings is unlikely to be in the best interests of the plaintiff as it would prolong her association with the circumstances of her father’s death.

10. Taking all of those considerations into account and having regard to the amount of the agreed settlement, I am satisfied that what is proposed is prudent and it would be in the plaintiff's best interests if the settlement is approved.

11. Accordingly, by consent the Court makes:

1. Orders in accordance with paragraphs 1 and 2 of the form of consent orders signed on behalf of each of the parties which I have signed and dated and to which the Court seal has been affixed on 3 April 2020.

2. Orders in accordance with paragraphs 1, 2, 3 and 4 and notes paragraph 5 of the form of consent judgment signed on behalf of each of the parties which I have signed and dated and to which the Court seal has been affixed on 3 April 2020.

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Amendments

08 April 2020 - Matter heard in Chambers on the papers.

Decision last updated: 08 April 2020