Ebejer bht Mueller v Central Coast Local Health District

[2021] NSWSC 1163

Supreme Court

New South Wales

Medium Neutral Citation:	Ebejer bht Mueller v Central Coast Local Health District [2021] NSWSC 1163
Hearing dates:	3 September 2021
Date of orders:	3 September 2021
Decision date:	03 September 2021
Jurisdiction:	Common Law
Before:	Beech-Jones CJ at CL
Decision:	Settlement approved. See [13].
Catchwords:	CIVIL PROCEDURE – settlement – no question of principle
Legislation Cited:	Civil Procedure Act 2005
Category:	Principal judgment
Parties:	George Ebejer by his tutor Shirley Mueller (Plaintiff) Central Coast Local Health District (Defendant)
Representation:	Counsel: I Butcher (Plaintiff) D B Bradley (Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) McCabe Curwood (Defendant)
File Number(s):	2018/135488

EX TEMPORE Judgment

1. This is an application for the approval of a settlement involving a person under a legal incapacity pursuant to s 76 of the Civil Procedure Act 2005. The plaintiff, George Ebejer, had commenced proceedings in the District Court by his next friend being his sister, Shirley Mueller, against the Central Coast Local Health District. The proceedings were subsequently transferred into this court.

2. In short Mr Ebejer's claim is that on or about 11 May 2015 he suffered a hyperextension injury to his neck while falling forward and landing on his face. In his statement of claim he pleads that on the following day he was taken to Wyong Hospital and presented with neurological symptoms. Ultimately, on 22 June 2015 an MRI of his cervical spine was performed. It was said to show severe canal stenosis at the C4 to C5 with deformity of the spinal cord and signal change. He underwent a multilevel cervical spinal decompression on 4 August 2015.

3. Mr Ebejer claims he suffered what is called is central cord syndrome, which is an acute cervical spinal cord injury said to be characterised by disproportionately greater impairment of motor functions in the upper limbs than in the lower, as well as by bladder and bowel disfunction, and a varying amount of sensory loss below the level of the injury. One of the experts opined that its most common cause is a fall forward onto the face or forehead which forces the neck into hyperextension and causes the spinal cord to be injured.

4. The essence of Mr Ebejer's claim in negligence is, or at least was, that an MRI scan should have been performed immediately or very soon after his presentation at Wyong Hospital and if it had then, so it is said, the surgery that was ultimately performed on him would have been performed earlier and the outcome for his medium to long-term functioning would have been much improved.

5. At the time of the accident Mr Ebejer was approximately fifty-five years old. He is now almost sixty. He is intellectually impaired. He had been diagnosed with cerebral palsy. At the time of the accident he was living on the Central Coast with his parents. After the accident, and notwithstanding the surgery, his ability to function independently was significantly affected, so much to the point that, at least according to the plaintiff, he required a significant amount of care.

6. As is the usual course in this application, the solicitor for the plaintiff swore an affidavit annexing the pleadings, the lay statements as well as the medical evidence filed by both the plaintiff and the defendant. That material reveals that, if the matter had proceeded to trial, there was a dispute as to whether the discharge of the relevant duty of care required an MRI to be undertaken immediately, a dispute as to whether if it had been performed surgery would have been required, a very significant dispute about whether, if surgery had been performed at an earlier time, it would have made an appreciable difference to his present level of functioning, a dispute about the level of assistance he requires and even a significant dispute over his life expectancy.

7. Prior to hearing the matter this morning I requested from the plaintiff’s solicitor a breakdown of how he assessed the plaintiff's claim. In broad terms, and putting it as it were at its highest, the plaintiff's claim at its highest was approximately $4 million, the overwhelming bulk of which was related to the cost of future care.

8. The figure for future care, as I understand it, was based on a report from an occupational therapist. Copies of her reports are attached to the affidavit to which I have referred. It is self-evident from reading her reports and the material filed by the defendant in response that, even if the plaintiff could establish liability and even if the plaintiff had established to a significant degree that had surgery been performed at an earlier time then his level of functioning would have been that much greater, that there was nevertheless significant scope for dispute about the quantification of his claim for future care. That includes the two matters that I have referred to, namely the hours of care that are said to be required as a result of his deterioration following the accident, or more precisely following the absence of early surgical intervention, as well as to his life expectancy.

9. The proposed settlement involves the judgment for the plaintiff in the sum of $1,850,000 plus costs as agreed or assessed. The plaintiff's affidavit describes the amounts that would be deducted from that sum on account of Medicare repayments and an approximate amount it is anticipated would be deducted for the solicitor-client component of legal costs, after appropriate verification by the Trustee and Guardian. However, the most significant deduction appears to be the repayment of an amount to the National Disability Insurance Agency.

10. The solicitor opines that the plaintiff's next friend who, as I said, is his sister, has been advised that the plaintiff will receive from the settlement sum an amount of not less than $1.35 million. Ms Mueller has sworn an affidavit which confirms that she is completely aware of all the aspects of the proposed settlement. Ms Mueller now lives in Tasmania. She advises that her aging parents and her brother have now moved to Tasmania in what I understand are part of arrangements within the family to ensure Mr Ebejer’s long-term care.

11. Otherwise I note that there was tendered an advice from the plaintiff's counsel in support of the application. This is a common procedure. I have made orders designed to ensure that the mere fact that I have considered it does not necessarily amount to a waiver of any legal professional privilege. It suffices to state that, having read that advice and the supporting material, I am more than satisfied that appropriate advice and consideration has been given to the whether the settlement sum is a proper figure.

12. I am satisfied that it is appropriate to approve the settlement. It is self-evident from what I have described that there was, on any view, scope for debate about liability and very large scope for debate about causation and damages. The procuring of a reasonable compromise sum is overwhelmingly in the interests of the plaintiff given his personal circumstances. It is clear that he is completely reliant upon his parents and his sister for his care and his wellbeing. The settling of the proceedings is strongly in his interests, and in their interest to the extent that he is reliant upon them. The settlement gives all certainty about his position in terms of planning his future care.

13. Accordingly I will now make orders in accordance with the short minutes that have been provided to me. Specifically I will make order 1. I will note paragraph 2. I will note paragraph 3. I note the undertaking in paragraph 4. I will make the order in paragraph 5. I note paragraph 6. I will make the order in paragraph 7. I will make the order in paragraph 8 and I will note paragraph 9.

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Decision last updated: 15 September 2021