Eshelby v Hunter New England Local Health District

[2024] NSWSC 524

Supreme Court

New South Wales

Medium Neutral Citation:

Eshelby & Anor v Hunter New England Local Health District [2024] NSWSC 524

Hearing dates:

03 May 2024

Date of orders:

03 May 2024

Decision date:

03 May 2024

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

See [18]

Catchwords:

CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – settlement approved

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Compensation to Relatives Act 1987 (NSW)

Cases Cited:

Budini v Sunnyfield [2021] FCA 1540

Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451

Category:

Procedural rulings

Parties:

Yasemin Eshelby (First Plaintiff)
Sapphire Rose Eshelby-Wells bht Yasemin Eshelby (Second Plaintiff)
Hunter New England Local Health District (Defendant)

Representation:

Counsel:
E Grotte (First and Second Plaintiffs)

Solicitors:
Somerville Laundry Lomax (First and Second Plaintiffs)
Hicksons Lawyers (Defendant)

File Number(s):

2019/159085

Publication restriction:

Nil

JUDGMENT – duty – ex tempore (revised)

1. This is an application for judicial approval of a settlement pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW) (‘the Act’). The approval is necessary because the second plaintiff, Sapphire Rose Eshelby-Wells, is presently 10 years of age and is therefore under a legal incapacity.

Background

2. The second plaintiff was born on 27 June 2013. She is the daughter of Nicholas Wells (the deceased) and the first plaintiff, Yasemin Emine Eshelby, who is also the second plaintiff’s tutor in these proceedings.

3. On 22 May 2016, the deceased was involved in a motor vehicle accident, and he was transferred to the Emergency Department of John Hunter Hospital.

4. On 23 May 2016, he died. His cause of death was identified as faecal peritonitis from a bowel perforation sustained in the accident.

5. The second plaintiff alleges that the defendant was negligent on the basis that, inter alia, it failed to expeditiously repair the deceased’s small bowel injury and failed to recognise and respond to the deceased’s clinical deterioration.

6. On 21 May 2019, the second plaintiff commenced proceedings alleging mental harm pursuant to the Civil Liability Act 2002 (NSW) (‘the CLA’) and dependency pursuant to the Compensation to Relatives Act 1987 (NSW) (‘the Compensation to Relatives Act’). The second plaintiff and the defendant have reached a proposed settlement and the matter is now before me for approval of that settlement.

7. In support of the application for approval, I received the following:

1. An affidavit of the first plaintiff sworn on 1 May 2024;

2. An affidavit of Ben Robin, the second plaintiff’s solicitor, sworn on 1 May 2024 with an exhibit annexing approximately 250 pages of medical evidence and school records; and

3. A confidential advice of Ms Grotte of counsel dated 29 April 2024.

Relevant principles

8. In an application for approval of a settlement pursuant to s 76(3) of the Act, the Court’s function is protective. The ultimate question is whether the proposed settlement is beneficial to the interests of the second plaintiff, or in her best interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (‘Mills’) at [29]; Budini v Sunnyfield [2021] FCA 1540 at [10].

9. It is the Court’s responsibility to determine this question, albeit with the assistance of confidential advice provided by counsel for the second plaintiff: Mills at [29]; Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 (‘Scandolera’) at [27].

10. In its determination, the Court is to consider the “advantages and disadvantages of the litigation continuing not only in terms of whether [the second plaintiff] might secure a more advantageous award from the Court at trial, but also issues such as the prospects of an appeal and the costs and pressures imposed on [the second plaintiff] if the litigation were to continue”: Scandolera at [29].

11. The tutor must also assent to the compromise, which has occurred here.

Consideration

12. The defendant has admitted that it breached its duty of care to the deceased and that the breach caused his death. However, there are significant disputes between the second plaintiff and the defendant as to the quantum of damages she ought to receive.

13. In relation to the claim pursuant to the CLA, the second plaintiff has served expert evidence which suggests that she has suffered a recognised psychiatric illness as required by s 31 of the CLA. The defendant’s expert evidence is at odds with that conclusion and suggests alternative causes of the second plaintiff’s psychological symptoms.

14. With respect to the claim for financial dependency pursuant to the Compensation to Relatives Act, the second plaintiff’s evidence demonstrates that the deceased worked as an apprentice tiler, took an active interest in the second plaintiff and made monetary deposits on her behalf to the first plaintiff. On the other hand, there is also evidence which demonstrates that the deceased’s employment was very unstable, and that his income was in fact very limited. He had some personal issues which might well have impacted upon his future employment and his ability to care for the second plaintiff.

15. I have carefully considered the opinions and conclusions of counsel in the confidential advice. I have also taken into account the matters and opinions expressed by Mr Robin and Ms Eshelby in their respective affidavits, as well as the advantages and disadvantages of this litigation continuing.

16. In my view, there is real risk that the second plaintiff may receive an amount in damages that is less than the settlement amount.

17. Bearing in mind all the material that has been placed before me, in my opinion the proposed settlement is a compromise that is beneficial to, and in the best interests of, the second plaintiff.

Orders

18. I make the following orders:-

1. I approve the settlement set out in the Consent Judgment pursuant to s 76(4) of the Act.

2. Judgment for the second plaintiff in the sum set out in paragraph 1 of the Consent Judgment (the Judgment Sum).

3. The defendant to pay the second defendant’s costs as agreed in the Sum of $185,000.

4. I note paragraphs 3, 4, 5, 6, 7, 8 and 9 of the Consent Judgment.

5. Pursuant to s 77(3) of the Act, the net Judgment sum after deductions referred to in paragraph 4 of the Consent Judgment is to be paid into Court by the defendant and thereafter to the NSW Trustee and Guardian for investment until the second plaintiff’s 18^th birthday.

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Decision last updated: 03 May 2024