Field by his tutor Leisa Field v South Eastern Sydney Local Health District

[2023] NSWSC 530

Supreme Court

New South Wales

Medium Neutral Citation:	Field by his tutor Leisa Field v South Eastern Sydney Local Health District [2023] NSWSC 530
Hearing dates:	17 May 2023
Date of orders:	17 May 2023
Decision date:	17 May 2023
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The settlement is approved under s 76(3) of the Civil Procedure Act 2005 (NSW) and orders are made in the form of the amended short minutes of order and consent judgment.
Catchwords:	CIVIL PROCEDURE – settlement approval request – plaintiff alleges negligence in the management of his mother during labour whilst he was in utero causing him injury – plaintiff is a minor – settlement is in the best interest of the minor – settlement approved
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 76
Category:	Principal judgment
Parties:	Cohen Field bht Leisa Field (Plaintiff) South Eastern Sydney Local Health District
Representation:	Counsel: P Beale (Plaintiff) B Bradley (Defendant) Solicitors: CMC Lawyers (Plaintiff) Makinson d’Apice Lawyers (Defendant)
File Number(s):	2017/228394

JUDGMENT

1. I am asked to approve a settlement under the provisions of s 76 of the Civil Procedure Act 2005 (NSW). The plaintiff Cohen Field, who sues by his tutor, his mother Leisa Field, brings a case alleging that he suffered an injury at birth due to the negligence of the management of his mother during labour at Sutherland Hospital.

2. Cohen is now 16 years of age. I have had the benefit of a confidential advice from Mr Beale of counsel, a very experienced and senior practitioner in this area, which I have paid close attention to. I have also been provided with a Court Book containing, amongst other things, the medical evidence of the parties, particularly the medical evidence going to the liability issues in the case. I must say that those matters have been admirably summarised by Mr Beale in his opinion.

3. If I may say, these claims are always difficult. It is notorious that birth injury cases involve highly technical liability expert evidence, and it is also I think the experience of practitioners in the field that the liability questions can easily go either way after a contested hearing. It is the type of case where there is only one possible outcome in terms of either the plaintiff wins, or the plaintiff loses. There is no possible halfway house in relation to a judicial determination of the type of issues in play in cases of this type. That means that the usual litigation risks which attend any contested proceeding in this Court are much more acute and, generally speaking, because of the nature of the injuries and the lifelong disability suffered by the plaintiff, the stakes are that much higher. Accordingly, settlement where appropriate and on reasonable terms is always to be encouraged.

4. I have paid close attention to the material, as I have said, and it is pleasing to observe that while Cohen has severe disadvantages and disabilities cognitively speaking, he is a very fit and apparently well-adjusted young man. Although he has, I infer, been educated at schools which are attuned to dealing with his particular difficulties, he appears to be going well on the evidence I have read. He enjoys the close support of both of his parents and a loving family environment. These things of course will stand him in good stead.

5. It is hoped, and there seems to be ground for that hope, that he will be able to work in an active field such as his preferred option, currently, of a landscape gardener. From what his mother has told me informally in answer to my questions from the Bar table, his family feel he has prospects in that area.

6. My particular task is to assess the material and the proposal to determine, so far as I can, whether I am persuaded that the proposed settlement is in Cohen's best interests. That is a complex task. However, on the basis of the material I have received, assisted by the opinion of Mr Beale and the medical reports I have considered, I am satisfied given the nature of the issues and the consideration that the case could go either way, that what is proposed is in Cohen's best interests and for that reason I propose to approve the settlement.

7. When the matter first came before me earlier today, there was discussion amongst other matters about the cost of fund management. It is apparent from the medical evidence that even when Cohen achieves his majority he will not have the skills to manage for himself a seven figure investment fund and it will be necessary for him to have the best available expert advice and assistance in that regard.

8. Naturally such advice and assistance have to be paid for and there was a little confusion about the cost of fund management, in my mind anyway, as a proportion of the net proceeds of the settlement after the deduction of the necessary paybacks. However, what Mr Beale has said to me after the adjournment satisfies me that what is involved, at least on an annual basis, ought not constitute too great a drag on the earning potential of the fund available for investment on the evidence put before me. In the circumstances, as I have said, I will approve the settlement.

9. At the moment the proposal is simply for the proceeds of the settlement to be paid into Court and although I have received evidence that the preference of the family is that the funds be invested with Australian Equity Trustees, who are well known in this field, there is some doubt about whether I am in a position legally to make those orders today. As I understand it, it is proposed that an application may be made soon to the protective judge. In these circumstances I will simply make an order requiring the net proceeds of the sum to be paid into Court.

10. I approve the settlement under s 76(3) of the Civil Procedure Act. I make orders in accordance with the document headed Short Minutes of Order as amended by counsel and signed by me, dated today. I also make orders in the form of the consent judgment filed on 15 February 2023, signed by the solicitors for the parties and by me. These orders will take effect upon entry on Justice Link. I also note the agreement of the parties contained in paragraphs 3-9 of the consent judgment and I note the undertaking of the plaintiff, given through his next friend, in paragraph 10.

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Decision last updated: 18 May 2023