Doyle v Wang

[2017] NSWSC 1570

Supreme Court

New South Wales

Medium Neutral Citation:	Doyle v Wang [2017] NSWSC 1570
Hearing dates:	5 October 2017
Date of orders:	05 October 2017
Decision date:	17 November 2017
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The Court makes the orders contained within the short minutes of order in these proceedings in the terms proposed.
Catchwords:	PRACTICE AND PROCEDURE – appointment of tutor – ss 76 and 77 of the Civil Procedure Act – consent orders – requisite legal incapacity – settlement approved
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Category:	Principal judgment
Parties:	Nicole Doyle (Plaintiff) Lexin Wang (First Defendant) Prasantha Durbhakula (Second Defendant) NSW Health Pathology (Third Defendant)
Representation:	Counsel: P D’arcy-King (Plaintiff)   Solicitors: Slater and Gordon (Plaintiff) Moray Agnew (First Defendant) HWL Ebsworth Lawyers (Second Defendant) Curwoods (Third Defendant)
File Number(s):	2017/162433

reasons for judgment

1. These proceedings concern an application by Nicole Doyle by her tutor Vicki Joanne Andrews, for the approval of a proposed settlement pursuant to s 76 of the Civil Procedure Act 2005 (NSW) (“the Act”). The application is supported by evidence given by affidavit, namely, Ms Andrews, the tutor, and Kathryn Williams, the solicitor for the plaintiff.

2. The Court has before it orders supported by the consent of the defendants. By that consent order, the plaintiff was required to cause the primary action (commenced by statement of claim filed 30 May 2017) to be mentioned in Court and apply for approval of the consent order and for each other order as may be deemed expedient in accordance with the provisions of the Act. Clause 10 of the proposed orders contains confidentiality requirements as to the terms of the proposed order.

3. The plaintiff is aged 34. She lives with her husband, John, and two children, Chelsea (aged 12) and Mikayla (aged 13) in their family home located at Wallendbeen in the State of New South Wales.

4. Ms Andrews deposed that her daughter’s medical condition was extremely poor and that she was currently a patient at Calvary Hospital Wagga Wagga admitted into the palliative care unit. It was deposed that Ms Andrews was unable to attend a mediation conference as a result of her daughter’s condition on 3 October 2017. However she gave instructions to accept the defendants’ offer of settlement.

5. Ms Williams deposed that the plaintiff's cause of action concerned the non-diagnosis of a metastatic stage IV melanoma. The plaintiff was ultimately diagnosed with metastatic stage IV melanoma, with widespread metastatic melanoma to the subcutis muscles, lymph nodes, lungs, liver, soft tissue and brain. She deposed that the plaintiff’s condition is extremely critical and her life expectancy is only a matter of weeks.

6. It was deposed in Ms Williams’ affidavit that the plaintiff had pleaded a failure by the medical practitioners Dr Lexin Wang and Dr Prasantha Durbhakula, in their respective roles, and NSW Health Pathology. It was deposed that the plaintiff claimed:

1. Dr Wang failed to take reasonable steps to ensure a differential diagnosis of melanoma was not excluded, the lesion’s appearance was properly and completely excised;

2. Dr Durbhakula failed to exercise reasonable care and skill in providing expert histopathology services when reviewing, interpreting, analysing and/or reporting on the plaintiff’s excised lesion; and

3. NSW Health Pathology failed to ensure their pathology staff, including Dr Durbhakula were properly trained and competent in reviewing, interpreting, analysing and or reporting on the plaintiff’s excised lesion.

7. It may be noted that the consent orders gave judgment in favour of the first defendant.

8. At the hearing of the application on 5 October 2017, the plaintiff was represented by counsel, Mr Peter D’arcy-King. I have had the advantage of receiving his advice in writing of 4 October 2017. That comes before the Court as a confidential exhibit. In that advice, Mr King gave an opinion as to non-economic loss, the necessary past and future care to be afforded the plaintiff as well as out of pocket expenses and an opinion as to the funds management.

9. Given the confidential nature of the exhibit, I do not propose to outline any of the opinions expressed in it beyond those that I have mentioned.

10. In his submissions on 5 October 2017, Mr King made the following submissions. First, the matter was mediated by Richard Weinstein SC on 3 October, and the parties came to an agreement that the matter, subject to approval, be settled for the sum shown in [2] of the consent orders plus costs as agreed. Secondly, consent orders were drafted and were provided to the court for an agreed sum to be approved by the court and paid into court under s 77(2) of the Act, subject to further orders as to where the funds will be sent or managed.

11. In my view, Mr King has established a proper basis for the approval of the settlement (reflected in the consent orders) under s 76 of the Act (and related orders under s 77 of that Act).

12. The Court finds, first, the plaintiff has the requisite legal incapacity – she is incapable of managing her own affairs and secondly, that approval of the settlement should be given in the circumstances outlined in this judgment.

13. In the circumstances, the Court confirms the making of the orders contained within Exhibit 4 in these proceedings on 5 October 2017 in the terms proposed.

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Decision last updated: 17 November 2017