Dickson v Park

[2023] NSWSC 569

Supreme Court

New South Wales

Medium Neutral Citation:

Dickson v Park & Anor [2023] NSWSC 569

Hearing dates:

26 April 2023

Date of orders:

26 April 2023

Decision date:

26 April 2023

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) The settlement is approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW) in accordance with the terms of the Consent Judgment dated 24 March 2023 signed by the parties.

(2)   I make orders in accordance with paragraphs 1, 2 and 6 of the Consent Judgment.

(3)   I note paragraphs 3, 4, 5, 7, 8, 9 and 10 of the Consent Judgment.

(4) In accordance with s 77(2) of the Civil Procedure Act 2005 (NSW), I direct that, after deduction of the amounts referred to in the affidavit of Elizabeth Marion Utting dated 20 April 2023 and any further deductions payable pursuant to any government charges, the balance be paid into Court, subject to further orders of the Court.

(5)   I note it is the intention of the plaintiff’s son, Brett Dickson, to make an application to be appointed the manager of the estate. That is a matter for the Court to consider when the application is made.

(6)   I vacate the hearing date of 19 June 2023.

Catchwords:

CIVIL PROCEDURE — Personal injury claim — Settlement or discontinuance — Court approval – where plaintiff is under a legal incapacity – where there is competing credible expert evidence – whether there are sufficient prospects of obtaining a more favourable judgment

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5O

Civil Procedure Act 2005 (NSW), ss 76, 77(2)

Cases Cited:

Elderfield v Transport Accident Commission (2010) 55 MVR 206; [2010] VSC 116

Permanent Trustee Company Ltd v Mills (2007) NSWLR 1; [2007] NSWSC 336

Somerset v Ley [1964] 1 WLR 640

Category:

Principal judgment

Parties:

Gregory Dickson by his tutor Carlie Relf (Plaintiff)
Dr Hyunmin Park (Second Defendant)
Nepean Blue Mountains Local Health District (Third Defendant)

Representation:

Counsel:
P D’Arcy-King (Plaintiff)
B Bradley (Second Defendant)

Solicitors:
Law Partners (Plaintiff)
Makinson d’Apice Lawyers (Second and Third Defendants)

File Number(s):

2020/283023

REVISED EX TEMPORE Judgment

1. This matter comes before me today by way of an application for approval of a settlement pursuant to s 76 of the Civil Procedure Act 2005 (NSW) (“the CPA”). Mr D’Arcy-King appears for the plaintiff and Mr Bradley appears for the defendants.

2. As the plaintiff is a person who is under a legal incapacity, any settlement must be approved by the court pursuant to s 76(3) of the CPA. The Court’s function with respect to any such application is essentially protective. I must review all of the evidence presented on the application and be satisfied that the settlement is for the plaintiff’s benefit. ^[1]

   1. Permanent Trustee Company Ltd v Mills (2007) NSWLR 1; [2007] NSWSC 336; Somerset v Ley [1964] 1 WLR 640.

3. The question of whether any settlement is for the benefit of a person under a legal incapacity may turn on whether there are sufficient prospects of obtaining a more favourable judgment such as to outweigh the value of certainty which arises from the settlement. ^[2] I will keep those principles in mind when considering the application.

   2. Elderfield v Transport Accident Commission (2010) 55 MVR 206; [2010] VSC 116.

4. The plaintiff relies on the affidavit of his daughter, Carlie Maree Relf, who is the tutor in the proceedings, dated 19 April 2023, as well as two affidavits of his solicitor, Elizabeth Marion Utting, dated 20 April 2023 and 25 April 2023. In addition, the plaintiff relies on some additional medical reports which were not contained in the bundle of material provided in advance of the application, and the confidential advice of Mr Duncan Graham of Senior Counsel dated 12 April 2023.

5. As is customary in these types of applications, Mr Graham has provided an advice expressing his views as to the issues which arise on liability and damages, and his assessment of the potential damages that might be recoverable. Again, for obvious reasons, that advice is provided to the Court but not the defendant. I should note that this matter is currently listed for a hearing for 10 days commencing 19 June 2023, so that the settlement takes place after extensive investigation, preparation and close to the time of the hearing.

6. As set out in the final version of the amended statement of claim filed on 16 March 2023 the plaintiff, who is currently 73, alleges negligence in the treatment of him by his treating cardiologist and neurologist. He alleges that the third defendant hospital is responsible for the conduct of his treating cardiologist.

7. The plaintiff is a person with a history of cerebral amyloid angiopathy (“CAA”) which causes bleeding into the brain and atrial fibrillation (“AF”). This poses a risk of blood clots. There is a risk of blood clots forming in the heart.

8. On 22 October 2014 and 2 January 2016, the plaintiff presented to the hospital suffering from both CAA and AF. At the time, he was prescribed an anticoagulation medication named Eliquis-Apixaban. He continued taking this anticoagulant until 7 November 2017, when he suffered a significant left frontotemporal intracranial haemorrhage (“ICH”.) The plaintiff alleges that the cause of his ICH, or at least a material contribution to his ICH, was the fact that he had been prescribed Apixaban by Dr Parikh, for whom the hospital is responsible, and that the treatment was approved by the second defendant, Dr Park.

9. As a result of the ICH, the plaintiff continues to suffer from extensive disabilities, including right sided haemiplegia and cognitive deficit. He remained in hospital for a period of up to four months. He was discharged into the care of his son, Brett Dickson, on 15 March 2018. However, despite his son’s best efforts and apparent determination to care for his father, it was necessary to place the plaintiff into an aged care facility in 2019, where he continues to reside, and the plaintiff alleges that the occurrence of the ICH was caused or contributed by the negligence of the defendants.

10. In this regard, the plaintiff relies on various expert reports, including the reports of Dr Garry Helpin, cardiologist, Professor Richard Harper, cardiologist, and Professor Bruce Brew, neurologist. The defendant relies on its own expert evidence, including a report of Dr Mark Adams, cardiologist, and Professor John Watson, neurologist.

11. Central to the plaintiff’s claim in negligence against the defendants is the proposition that instead of placing the plaintiff on Apixaban, he should have been advised of risks associated with the taking of that medication and should have been afforded the opportunity to have a Watchman device inserted. It is said that the plaintiff would have chosen to undergo the insertion of a Watchman device and that the insertion of this device would have prevented the cardioembolic stroke which led to his ongoing significant disability. That central proposition is, to a certain extent, supported by the medical evidence on which the plaintiff relies. However, there is contrary medical opinion. In particular, Dr Adams opines in his report of 22 August 2022 that in 2016 most cardiologists would not have considered the plaintiff a candidate for a Watchman device. He considers that many cardiologists would have felt that, at least at that time, there was insufficient evidence supporting the use of the device, except in fairly extreme circumstances. Further, there is evidence to the effect that a Watchman device may not have even been available at the Nepean Hospital at the time of the plaintiff’s presentation.

12. The defendants rely on s 5O of the Civil Liability Act 2002 (NSW) as part of their defence. At least on my reading of the expert medical evidence, if this matter proceeded to a hearing, there would be a significant issue on liability. Of course, having regard to the competing medical evidence, the plaintiff may have succeeded. However, it seems that the plaintiff faced some real hurdles, particularly in circumstances in which there was credible competing expert medical evidence. In my view, this is a case which called for a compromise in order to achieve a settlement. Further, there were likely to be issues on damages.

13. I have regard to the confidential advice of Mr Graham both on liability and quantum and I have regard to the amount that the plaintiff hoped to receive if successful. I can only say again that this is a case which called for compromise on damages. There is evidence to the effect that the plaintiff has a very limited life expectancy. Further, a significant part of the claim for damages involved a claim for future housing costs, in circumstances in which the plaintiff, a person with an ongoing significant difficulty and limited life expectancy, is being cared for in a nursing home. I make no comment or judgment about the plaintiff’s entitlement to the costs of private care on an ongoing basis (which plaintiffs are ordinarily entitled to) except to say that, at least in circumstances such as these, there may be an argument about what is reasonable in terms of future care.

14. Having regard to the issues on liability and damages, I am satisfied that this was a case in which it was necessary to compromise in a significant way so as to achieve a settlement.

15. I note the evidence of the solicitor for the plaintiff as to the deductions which will come out of the settlement. I note that those deductions include a medical repayment in the sum of $275,729.88, a private health fund notice of charge of $350 and solicitor/client costs of $73,920.12. There appear to be no deductions for Centrelink or the National Disability Insurance Agency.

16. I should note that I am appreciative of the solicitors for the plaintiff who have provided precise and definite amounts in respect of solicitor/client costs, as this Court is sometimes faced with what may be viewed as very large estimates only on account of solicitor/client costs, with solicitors suggesting that they are not able to give any precise estimate at this time. It seems to me, as has been demonstrated by the solicitors in this case, that it should always be possible for solicitors who seek approval of these types of cases to be at least relatively precise in their estimates of amounts that are to come out of settlements involving persons under a legal incapacity.

17. I note that Ms Relf, the plaintiff’s tutor, is aware of the issues in the case. I note that she is aware of all of the amounts that are to come out of the inclusive settlement; I also note that she understands the amount that the plaintiff will receive.

18. I note that, regarding an application for the money to be managed by the son of the plaintiff, Brett Dickson, that will presumably be the subject of a later application.

19. In all these circumstances, I am satisfied that the settlement is for the benefit of the plaintiff. It provides certainty for the plaintiff, and it provides a sum of money for the plaintiff which, at the very least, will enable him to pay for care on an ongoing basis, as well as any ongoing medical treatment. It avoids the risk of a long and complex trial, in which there was at least a risk of not being successful. In all of the circumstances, the settlement is approved.

20. I make the following orders:

1. The settlement is approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW) in accordance with the terms of the Consent Judgment dated 24 March 2023 signed by the parties.

2. I make orders in accordance with paragraphs 1, 2 and 6 of the Consent Judgment.

3. I note paragraphs 3, 4, 5, 7, 8, 9 and 10 of the Consent Judgment.

4. In accordance with s 77(2) of the Civil Procedure Act 2005 (NSW), I direct that, after deduction of the amounts referred to in the affidavit of Elizabeth Marion Utting dated 20 April 2023 and any further deductions payable pursuant to any government charges, the balance be paid into Court, subject to further orders of the Court.

5. I note it is the intention of the plaintiff’s son, Brett Dickson, to make an application to be appointed the manager of the estate. That is a matter for the Court to consider when the application is made.

6. I vacate the hearing date of 19 June 2023.

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Endnotes

Decision last updated: 29 May 2023