Fisher v Marin

[2008] NSWSC 1357

CITATION:

Fisher by her tutor Fisher v Marin [2008] NSWSC 1357

HEARING DATE(S):

11 June 2008 (plus subsequent written submissions)

 
JUDGMENT DATE : 

16 December 2008

JURISDICTION:

Common Law

JUDGMENT OF:

Rothman J

DECISION:

(i) The Court disapproves the agreement formed by the acceptance, on 22 August 2006, by the defendants, of an Offer of Compromise made by or on behalf of the plaintiff on 8 August 2006, in these proceedings;

(ii) A declaration that, pursuant to s 76(5) of the Civil Procedure Act 2005, the agreement is not binding on any party to the proceedings, each of whom was a person by whom or on behalf of whom the agreement was made;

(iii) The proceedings are referred to the Registrar;

(iv) The hearing of this matter is granted expedition;

(v) The parties be at liberty, within two days of the commencement of law term 2009, to apply to the Court, to my Associate, to refer the matter for mediation, either before the Registrar or otherwise, and if so on what conditions, and to file an application for any order as to costs, to my Associate.

CATCHWORDS:	NEGLIGENCE – incapacity of plaintiff – approval application for settlement reached – significant issues on liability – discount on damage – plaintiff, bound by agreement, opposes approval – settlement disapproved
LEGISLATION CITED:	Civil Procedure Act 2005
CATEGORY:	Principal judgment
CASES CITED:	Elliott (by his next friend) v Diener (1978) 21 ACTR 21 Karvelas (by her next friend) v Chikirow (1976) 26 FLR 381; (1976) 11 ACTR 22 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Permanent Trustee v Mills [2007] NSWSC 336 Re Birchall; Wilson v Birchall (1880) 16 Ch D 41 Re Ley's Trusts [1964] 1 WLR 640 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Yu Ge by her tutor Tao Ge v River Island Clothing Pty Ltd and Ors [2002] NSWSC 28
TEXTS CITED:	D Llewellyn-Jones, ch 49, “Termination of Pregnancy”, Fundamentals of Obstetrics and Gynaecology: Vol 1 – Obstetrics, 3rd ed (1982) London, Faber and Faber JM Beazley, ch 23, Special Circumstances Affecting Labour in: Integrated Obstetrics and Gynachology for Post Graduates, 3rd ed (1981) (ed. Sir John Dewhurst), Blackwell Science
PARTIES:	Lauren Fisher by her tutor Janice Fisher (Plaintiff) Dr Raymond Denis Marin (First Defendant) Children, Youth and Women's Health Service Incorporated (Second Defendant)
FILE NUMBER(S):	SC 20247/2002
COUNSEL:	A J Bartley SC / R Ingram (Plaintiff) A J Sullivan QC / J Downing (Defendants)
SOLICITORS:	Commins Hendriks Solicitors (Plaintiff) Blake Dawson Lawyers (First Defendant) HWL Ebsworth Lawyers (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

16 DECEMBER 2008

20247/2002 Lauren Fisher by her tutor Janice Fisher v Dr Raymond Marin & Anor

JUDGMENT

1 HIS HONOUR: The Court must determine whether to approve an agreement to compromise proceedings for professional negligence in which the plaintiff opposes the approval. On 17 July 1985, Ms Janice Fisher (Ms Fisher) gave birth to the plaintiff, Lauren Fisher. During Ms Fisher’s labour, Lauren suffered an hypoxic ischaemic event (“the event”). She was born with severe cerebral palsy, has no residual work capacity and requires full-time attendant care. These issues are not in dispute.

2 Ms Fisher claims that the event was caused by the negligence of her obstetrician and gynaecologist (the first defendant) (“the Doctor”) and the Hospital (the second defendant). Ms Fisher was a private patient of the Doctor. The details of the treatment and the basis of the claim for damages will be dealt with later. For present summary purposes, it is sufficient to note that the statement of claim was filed, that the matter proceeded and was prepared (although there is some issue as to the state of preparation) and on 8 August 2006, the plaintiff made an Offer of Compromise in the sum of $2,400,000 plus costs, as agreed or assessed. By letters dated 23 August 2006, the defendants accepted the Offer of Compromise.

3 The Offer of Compromise was made after advice from senior counsel (and junior counsel and solicitors), who was extremely experienced and expert in the areas of professional medical negligence and, in particular, birth defect cases. Once accepted, the Offer was an agreement binding on all of the parties, but, because of the legal incapacity of the plaintiff, not effective until the approval of this Court was first obtained.

4 There were currently irrelevant proceedings in which the plaintiff, through her tutor, sought to set aside the agreement. The Court refused to set the agreement aside and determined that it was binding on the parties, which it is.

5 Notwithstanding the binding nature of the agreement (i.e. the accepted Offer of Compromise), Ms Fisher, now advised by different legal representatives, seeks to have the Court disapprove of the agreement, the effect of which would be that the agreement would not bind the parties. The requirement, to have the settlement approved, applies because Lauren is under a legal incapacity and is a requirement of s 76 of the Civil Procedure Act 2005. The effect of approval by the Court (and disapproval) is also dealt with by s 76 of the Civil Procedure Act.

6 It is necessary, with that short introduction, to deal with the principles on approval by the Court; the advice of Mr Levy SC (as he then was) relating to the original Offer of Compromise; the intuitive nature of such an advice; and, some of the issues on liability. Before embarking upon that course, it is necessary to set out, albeit very much in summary form and as briefly as possible, the facts surrounding the birth and labour.

Facts

7 With the exception of the cause of injury and, in relation thereto, the time at which the Hospital ceased administering Syntocinon to Ms Fisher, the facts are relevantly uncontroversial.

8 Ms Fisher, who was born on 4 August 1946, gave birth by normal delivery in 1969 and 1971 and had a miscarriage at 20 weeks in 1981. The birth in 1969 was by forceps delivery at 34 weeks gestation, her then obstetrician advising Ms Fisher that she had developed toxaemia. In 1971 she had a vaginal delivery at 33 weeks gestation. Ms Fisher re-married in 1980, during which year she had a laparoscopy. In 1981, she had diathermy, dilation and curettage and her miscarriage was at 21 or 22 weeks duration. Ms Fisher was taking thyroxin (100 mcg daily).

9 On any analysis, the pregnancy with Lauren was her fifth (i.e. two previous children and two miscarriages) and was, in terms of child-bearing age, an elderly multipara (or multigravida) (that is she had given birth to more than one viable infant and had been pregnant more than once). At 38, relative to most pregnancies, she was elderly.

10 The advice received by Ms Fisher, after her second miscarriage, was that, for any future pregnancy, because of her previous obstetric history, a suture (elective cervical cerclage) would be necessary. This, on all of the evidence, was the appropriate advice and it was implemented by the Doctor. The effect of the suture was to avoid (or minimise the risk of) early onset of labour and another miscarriage.

11 The Doctor’s plan was to allow Ms Fisher to go to approximately 38 weeks of pregnancy and then to remove the suture, allowing sufficient time, thereafter, for Ms Fisher to go into labour naturally. There is no evidence of any complications during the course of her pregnancy.

12 In or about the 38th week of pregnancy, on 14 July 1985, at 4.00pm, Ms Fisher was admitted for removal of the cervical suture. She was then at 38 weeks and 3 days’ gestation. Her membranes were intact. The next day the Doctor removed the cervical suture, the membranes still being intact. It is noted that the cervix was, at that stage, dilated 2cm. Urinalysis was normal and blood pressure was at 140/80. As earlier stated, the plan was to allow spontaneous labour. If labour had not commenced, it is accepted that the Doctor’s plan was to induce labour on 17 July 1985.

13 On 17 July 1985, at 5.45am, Ms Fisher was admitted to the labour ward. Her blood pressure was 120/80. There was some uterine niggles and her membranes were still intact. Her cervix was soft and was 2cm dilated.

14 At 8.30am on 17 July 1985, the Doctor examined Ms Fisher and, at 8.45am, artificially ruptured the membrane. The Doctor then left the Hospital, leaving instructions for Ms Fisher to be given one dose of pethidine, if and when needed, an epidural block, if and when needed, and instructions for the administration of Syntocinon in a concentration of 5 units per 1000 millilitres. The Syntocinon was to be commenced at 10 drops per minute. Thereafter, the matter is subject to some contradiction and/or contest. The Doctor, in answer to interrogatories, dated 21 October 2003 (answer 12B), attests to the fact that the rate at which the intravenous mechanism for administration was to be set was at

“10 drops per minute to be increased to 20 drops per minute after 30 minutes and to be increased to 40 drops per minute after a further 30 minutes. The infusion to be controlled according to midwife discretion to adjust downward or cease.”

15 The Hospital, in answer to interrogatories delivered on 21 October 2003 (answer 25A), as to the administration of Syntocinon, said:

“(a) There was no specific order given by [the Doctor] to the Hospital as to the number of units of Syntocinon to be administered;


(b) The order given by [the Doctor], as recorded in the Hospital notes, was to commence the administration of Syntocinon in the concentration of 5 units in 1000 mls. The Hospital then required on its protocol as an order for the adjustment of that infusion, as required;


(c) The order for the rate of infusion was 10 drops per minute, based on standing orders;


(d) The standing order was [sic] for the rate was to commence at 10 drops per minute and increased [sic] in accordance with the protocol for the induction of labour.”

16 Further, the Hospital, in answer to a question as to who, if there were any order given to alter the Syntocinon infusion, ordered the alteration, stated:

“There was no order to alter the Syntocinon infusion, but the Hospital relied on the standing orders from [the Doctor] and its protocol for Syntocinon infusion.”

In the same answer (27A), the Hospital made clear that the infusion was to be altered every half-hour, if labour had not progressed.

17 It is not in contest that the Syntocinon dosage commenced at 10 drops per minute (dpm) (5 units/1000 ml) at 9.00am, and, without altering the concentration, the dosage was doubled, at 9.30am, to 20 dpm and was further doubled at 10.00am to 40 dpm.

18 At 9.00am, when the Syntocinon dosage commenced, Ms Fisher’s blood pressure was 140/110. It was the same at 9.30am.

19 At 9.14am, a cardiotocograph (CTG) was administered, which showed a normal trace.

20 It is said, by some (but a matter of possibly crucial contest), that the half-life of Syntocinon is 15 minutes. Approximately 14 minutes after doubling the dosage to 20 dpm (i.e. at 9.44am) a further CTG was performed which showed contractions to be occurring at between 3 and 4 in 10 minutes, a baseline rate of 130 bpm (with a variability of greater than 10 bpm). At this stage nitrous oxide was being administered for pain, but at 9.50am (at which time the cervix was almost fully effaced and the head was at spines) there were signs of early decelerations and uterine hypertonus. Ms Fisher requested pain relief and pethidine (100 mg) was administered intramuscularly.

21 At 10.00am, a further CTG was recorded. The baseline rate was 130 bpm and variability was greater than 10 bpm. There were no accelerations, but there were repeated decelerations that lasted more than 60 seconds. Contractions were at 6 in 10 minutes and there were obvious signs of uterine hypertonus.

22 There is some discrepancy and/or contest as to when the administering of Syntocinon ceased. One record, as interpreted by experts, shows the Syntocinon dosages ceasing at 10.15am (note on the partogram), while other records (the clinical notes) record the Syntocinon being ceased at 10.02am.

23 At or around 10.15am, a further CTG shows bradycardia, hyperfrequent contractions and uterine hypertonus. The bradycardia was at 60 bpm, there was an absence of baseline variability and the contractions were 7 to 8 in every 10 minutes. Blood pressure was 190/120. Ms Fisher had central chest pain and was extremely sweaty. Intravenous hydralazine (3 mg) was administered. Again, there is a difference in the time that hydralazine was administered, as between two records. At 10.25am, a Registrar attended, the Doctor was informed of the situation and Ms Fisher was given oxygen. At this stage her blood pressure was 190/120.

24 By 10.35am, there was a baseline recovery, absent variability, late decelerations and hyperfrequent contractions. The baseline rate was 150 bpm. Contractions were in the range of 7 in 10 minutes.

25 At 10.50am, an epidural was inserted and at 11.00am a foetal blood sample showed a pH of 6.62. There was tachycardia (155 bpm), no baseline variability, no accelerations and repeated decelerations. At this stage, it seems, contractions were not being recorded. At 11.15am, general anaesthesia was administered and an emergency caesarean-section delivery, under general anaesthetic, was performed at 11.25am. Lauren was born weighing 3.44 kg in extremely poor condition. Her Apgar score were 2 at 1 minute, 5 at 5 minutes, and 8 at 10 minutes. She quickly responded to positive-pressure ventilation and her pH at 11.45am was 6.9. She developed seizures, required two anti-convulsants and suffered renal impairment.

26 As earlier stated, while there are differences in detail, there is general agreement that Lauren is significantly impaired, requiring 24-hour care and has a shortened life expectancy. While it is unnecessary, in a range of areas, for the Court, in this exercise, to make final findings more appropriate for a personal injury hearing, it seems clear that, after a normal pregnancy, Lauren’s current disabilities were caused by the events during her birth and in particular as a result of the foetal bradycardia of 60 bpm between 10.13am and 10.25am. This foetal bradycardia was caused by, or associated with, uterine hypertonus between 10.13am and 10.29am.

Approval Applications: General Principles

27 As earlier stated, notwithstanding the opposition of the plaintiff to the approval of the settlement reached, the settlement is an agreement binding on the plaintiff and each defendant. The provisions of s 76 of the Civil Procedure Act provide that there may not be a compromise or settlement of any proceedings by or on behalf of a person under legal incapacity, except with the approval of the Court. If the agreement for compromise is approved, the agreement becomes binding and enforceable, as if the person under legal incapacity was a person of full capacity. If the agreement submitted for approval were disapproved by the Court, the agreement does not bind either the person of legal incapacity or any other party to the agreement: see s 76(3), (4), (5) and (6) of the Civil Procedure Act.

28 While the Civil Procedure Act provisions, summarised above, are slightly different in form to the provisions which they replaced, the jurisdiction of the Court has been as described, or so similar as to be indistinguishable, for many years.

29 The jurisdiction of the Court is protective in nature and the overriding principle is that the Court will base the approval or disapproval upon the formation of an opinion that the agreement is or is not beneficial to the interests of the person under the incapacity. It is for the Court, not the parties, to determine whether the compromise will be beneficial to the person under an incapacity: Re Ley’s Trusts [1964] 1 WLR 640; Permanent Trustee v Mills [2007] NSWSC 336.

30 During the course of submissions on the principles to be applied, attention was given to the judgment of the Court of Appeal in England, in Re Birchall; Wilson v Birchall (1880) 16 Ch D 41 and, in particular, the proposition, for which it is often cited, that a court will not enforce a compromise against the opinion of the tutor: see Birchall, per Jessel MR at 43, with whom James and Cotton LJJ concurred.

31 The broad proposition for which, it is said, Birchall stands, is not an accurate reflection of the ratio of the judgment. The circumstances that faced the Court of Appeal in Birchall were that, in proceedings ancillary to the administration of a testator’s estate, the summons was adjourned into Court and Vice-Chancellor Malins suggested a compromise, which was accepted by both parties to the litigation, but not by the counsel for the infants, who were represented due to their beneficial and/or remainder interests. The Vice-Chancellor made an order that the matter be referred for an inquiry as to whether it benefited the infant defendants. After the hearing, the Vice-Chancellor approved the compromise as beneficial to the infants and made an order that it be carried into effect.

32 This extraordinary step led to the appeal and the judgment to which reference has been made. The judgment does no more than establish that the Court cannot approve an agreement that does not exist. In the proceedings before the Court of Appeal in Birchall, there existed no agreement with the infants or their tutor, and the Court sought to impose upon the infants (and/or their tutor) a compromise reached by other parties.

33 In the present circumstances, there is a binding agreement on the infant plaintiff and the principle established in Birchall does not prevent the Court approving that agreement. Nevertheless, the attitude of the tutor and her counsel before the Court is a matter that the Court is entitled to consider as one factor, not wholly irrelevant, in determining whether the agreement is for the benefit of the plaintiff.

34 Further, the determination by the Court, as presently constituted, of the “liability” and/or “damages”, on the limited evidence in these proceedings, is not determinative of the issue of whether to grant approval. Firstly, I have not heard oral evidence and no witness (expert or otherwise) has been cross-examined. Secondly, the findings of fact that, even absent such procedures, might be made by the Court as presently constituted, may not be the ultimate findings of fact, should the matter go to trial.

35 The determination of liability or damages, in these proceedings, is a determination for the ancillary purpose of determining whether it is in the best interests of the plaintiff for the compromise to be approved. Further, the view I take of liability and damages must be weighed against the possibility (and/or probability) that another judicial officer would take a different view of the evidence and a different view of the outcome. The test, it seems, must be whether it would be in the interests of the plaintiff to reject the Offer and continue the action in the hope of receiving a larger amount: see Karvelas (by her next friend) v Chikirow (1976) 26 FLR 381; (1976) 11 ACTR 22 (per Blackburn J, as he then was).

36 The ACT Supreme Court considered the same issue in Elliott (by his next friend) v Diener (1978) 21 ACTR 21 in which Blackburn CJ said:

“I am obliged to repeat what I said in Karvelas v Chikirow (1976) 11 ACTR 22. The solicitor says in his affidavit that he has considered what would be for the benefit for the infant; but that is not enough. The test of benefit to the infant is not whether the sum is adequate and reasonable. The matter is not to be decided by the plaintiff’s own solicitor as if he were a judge awarding damages after a contested hearing. The question which counsel or solicitor for the plaintiff has to decide, when considering a compromise of an infant’s claim, is whether the prospect of getting a greater sum by rejecting the present offer is good enough to outweigh, significantly, the risk of not getting any more. There may be various factors in such a decision, sometimes present and sometimes not; for example, the importance of termination of proceedings may be great for some plaintiffs and insignificant for others. The question of costs, also, will usually be significant. The decision is peculiarly one for experienced counsel and solicitors. The opinion of the next friend will seldom be of any importance; never, indeed, unless he is carefully advised as to the real question to be decided, and in particular that his own interests are totally irrelevant.”

37 The above represents the principles to be applied: see Yu Ge by her tutor Tao Ge v River Island Clothing Pty Ltd and Ors [2002] NSWSC 28 (per O’Keefe J); Permanent Trustee v Mills (per Hammerschlag J). In Permanent Trustee v Mills at [19], Hammerschlag J said:

“[19] The substantive principles which underpin those provisions are the following:


(a) this Court has parens patriae jurisdiction which in general terms is exercised when there is some risk to a child’s welfare and which supports a great variety of orders, including orders related to protection of property: AMS v AIF [1999] HCA 26 ; (1999) 199 CLR 160 at 189 per Gaudron J;



(b) when a claim of an infant or other person under disability is before the Court, the Court needs, for the purpose of protecting his or her interests, full control over any settlement compromising his or her claim: Dietz v Lennig Chemicals Ltd [1969] 1 AC 170 at 189 per Lord Pearson;

(c) in an action by an infant by means of a best friend or tutor whatever is done must be for the benefit of the infant, and if, in the opinion of the Court it is not so, the infant is not bound: Rhodes v Swithenbank (1889) 22 QBD 577 at 578-579. Concomitantly, the Court will not enforce a compromise against the opinion of the tutor and his or her advisers: Re Birchall (1880) 16 Ch D 41.”

38 The nature of the parens patriae jurisdiction gives the Court a broad discretion to be exercised in accordance with the above principles. There are some troubling aspects to this matter. The first is that the plaintiff, through her tutor, opposes a settlement into which she has entered. This is most unusual. It was described by counsel (on both sides) as the only time such a situation has arisen. This is a different situation from circumstances in which counsel (or solicitor) do not agree with the settlement reached by a tutor. It is also different from a situation in which a parent disagrees with a settlement reached by a tutor on behalf of the plaintiff.

39 The difficulties arise because, it would seem, that having offered the Compromise, which was accepted, the plaintiff, through her tutor, is bound by a contract, one of the terms of which would be that the plaintiff would support the grant of approval to the agreement. That term, if not expressed in the agreement, would necessarily be implied, because it is the only basis upon which efficacy can be given to the agreement.

40 Notwithstanding the foregoing, which was, in part, raised by the Court during the course of submissions, neither party suggested I ought not hear submissions from the plaintiff opposed to the approval of the agreement, or seeking its disapproval. Ultimately, the parties, to their credit, took the view that the nature of the parens patriae jurisdiction, exercised by the Court, required the Court to hear all submissions, whether or not such submissions would, in the ordinary course, be open to a party. That, in my view, is the correct position.

41 Ultimately, the principle that I apply is whether the settlement that has currently been reached (and the amount thereof) is in the interests of the plaintiff. In that regard, bearing in mind the risk that, liability being in issue, the plaintiff would receive nothing from any hearing that may occur, the test may be described as whether the risk to the plaintiff, of losing that which is already agreed, is outweighed by the possibility of receiving more if the matter were to go to hearing.

Plaintiff’s Advice on Amount of Offer

42 As is customary, the advice that gave rise to the Offer of Compromise was before the Court. The assessment of the range of damage, which formed the basis of the advice, was between $8 million and $10 million. The schedule of damage provided by counsel for the plaintiff in these proceedings is (including funds management) almost $21 million. The assessment of damage provided by the plaintiff based on the defendants’ reports is approximately $9.5 million and the schedule of damages provided by the defendants in these proceedings is approximately $6.5 million. On any analysis, the Offer of Compromise of $2.4 million represents a substantial discount on even the lowest calculation of damage, based on reports that were the least advantageous (in terms of dollar amounts) to the plaintiff. That discount represents an assessment of difficulties with liability.

43 In dealing with the liability issues, it is necessary to understand the nature of the case, as counsel for the plaintiff saw it, at the time that the advice was given. For obvious reasons, I will minimise, to the extent possible, recitation of any advice or confidential information. It is necessary to recite senior counsel’s summary of the case as it was then to be agitated:

“3. The case the plaintiff seeks to make against the first defendant obstetrician is, essentially, that the first defendant failed to offer Mrs Fisher the opportunity to await the onset of spontaneous labour and he then either induced or augmented labour with the labour stimulant Syntocinon when such a course was not clinically indicated. The causation consequence of such a case theory, simply put, is that if spontaneous labour had been permitted to occur then the subsequent uterine hyperstimulation would probably not have occurred and, consequently, the plaintiff would not have suffered hypoxic brain damage.


4. The case the plaintiff seeks to make against the second defendant hospital is, essentially, that the dosage of Syntocinon infusion, the induction agent used to induce / augment labour, was inappropriately increased by doubling the dose at or about 10:00 on 17 July 1985 and then continued until about 10:15, when it should have been switched off at about 10:03. The causation consequence of this case theory is that the foregoing events led to hyperstimulation of the uterus, foetal hypoxia, bradycardia, profound foetal distress and resultant brain damage.


5. The second defendant argues, inter alia, that it administered Syntocinon during the labour according to the first defendant’s orders for Mrs Fisher as his private patient and that by the time signs emerged of possible foetal compromise there was insufficient time to effect urgent delivery of the plaintiff without the damage in question having already been sustained and without any reasonable opportunity to arrest the damage to achieve a materially different outcome.


6. Expert evidence is to the effect that the maternal response to Syntocinon is not empirically determined in advance but is dose related in that the dose requires incremental titration until it becomes effective in establishing and maintaining contractions of labour as there are individual differences in the maternal physiological response to Syntocinon.”

44 Counsel did not embark upon a “pseudo-mathematical appraisal” of the potential quantum but used his undeniable experience to arrive at an intuitive, “broad and reasonably based quantum estimate”.

45 There is, of course, nothing wrong with an intuitive approach at this point in the preparation of proceedings. A person, with the experience that senior counsel, then appearing for the plaintiff, unarguably had, would, somewhat intuitively, have a feel for the range of damage that would be usual. This is, in the Aristotleian sense, the unconscious application of accumulated experience and expertise, rather than the conscious and/or arithmetic calculation of damage under each head: compare, in a different context, the approach of McHugh J and Kirby J in Markarian v R [2005] HCA 25; (2005) 228 CLR 357.

46 Nevertheless, the difficultly with application of unconscious expertise, of the kind used here, is that it is, without checking, possible to miss or underestimate a head of damage.

47 Without recounting all of the heads of damage and the expert evidence (which is voluminous), which has been tendered and read by the Court, it would be a fair summary to suggest that it would be a most unusual assessment of damage that would arrive at damages as low as $6.5 million, as suggested in the schedule by the defendants. Likewise, it would be an unusual result if, assuming liability was accepted, a court were to order damages in the order of $20 million, as suggested on behalf of the plaintiff. I do not calculate the precise damage that I would order, because the evidence is untested. But the damages, including allowance for general damages, 24-hour care and loss of anticipated income, are more than significant. Further, the expert evidence that has been tendered to the Court, while accepting a shortened life expectancy, still proceeds on the basis that the life expectancy is not insubstantial. The mid-range of the life expectancy prognosis was for an additional 30.5 years, which mid-range was used as the basis of the assessments by the plaintiff.

48 The future care (it is accepted that 24-hour care is necessary), based upon an unqualified carer (as a consequence of which it was an amount that was mid-range), was $5,050 per week, which would amount, on this head of damage alone, to $5.3 million.

49 It would seem, on the best estimates, on untested evidence, and that which is accepted as necessary for Lauren’s care, that, on present estimates, the range is around $12 million. Whatever be the calculation, as earlier stated, the settlement involves a significant discount to accommodate difficulties in liability.

50 The advice from counsel upon which the Offer of Compromise was based dealt with this matter at length. At paragraph 29 of the advice, counsel set out the issues to be examined in order to assess liability. The advice said:

“29. In this case, from the plaintiff’s perspective, drawing upon the issues and questions set out in the attached document, we consider the pivotal liability questions and issues to be:


29.1 Was Mrs Fisher in established labour when Dr Martin artificially ruptured the amniotic membranes (ARM) and ordered a Syntocinon infusion?


29.2 If the Court finds that Mrs Fisher was not in established labour at the time of ARM, was induction clinically indicated?


29.3 If the Court finds that Mrs Fisher was already in established labour at the time of ARM, was augmentation of the labour clinically indicated?


29.4 Did the upward adjustment of the Syntocinon infusion by doubling the infusion rate at about 10:00 hours on 17 July 1985 constitute a breach of the expected standard of care, having due regard to the record of contractions made on the partogram and on the CTG trace up until about that time?


29.5 On the balance of probabilities would uterine hypertonus or hyperstimulation sufficient to cause the plaintiff’s prolonged bradycardia have been avoided if:


(a) The Syntocinon infusion had not been increased by doubling by the second defendant at around 10:00 hours: and/or


(b) The Syntocinon infusion had been ceased by the second defendant at around 10:05 (assuming it can be proven that the infusion was not ceased until about 10:15).”

51 Further, the advice seeks to assess the credibility of Ms Fisher. Ms Fisher’s credibility was relevant to the assertion of the Doctor that Ms Fisher was an anxious patient, which factor influenced his management of the delivery. This is an issue, it is said, that goes to the decision and reasonableness of the decision, to induce labour. Expert evidence suggests that the anxiety of the patient is neither an indicator nor contraindicator for inducing labour. Nevertheless, assuming that it were found, on the expert evidence, to be a relevant factor, I must assume, given the view of counsel and the findings of Patten AJ, that Ms Fisher would be found to be anxious and that may have been a reason to induce labour or to seek to have the labour concluded more quickly.

52 Further, as to liability, the advice from counsel for the plaintiff included a thorough analysis of the liability issues, stressing the issues in which expert testimony, crucial to the liability claim, may be successfully challenged. Counsel opined the Doctor’s evidence could be accepted as reasonable management and, if that were to occur, the plaintiff’s case would fail as against the Doctor.

53 Further, counsel’s opinion noted that there was a real potential for the Hospital to be absolved because it was, reasonably, following the orders given by the Doctor in respect of the management of the confinement of his private patient and it, or its nursing staff, were not in a position to question the Doctor’s orders. I will return to this aspect.

54 Counsel then arrived at a calculation in the following passage:

“56. In our view, the foregoing matters render the prospects of this litigation most uncertain and very difficult to predict. A positive result for the plaintiff is, we believe, most uncertain. In the light of the foregoing assessment we believe the following methodology represents a reasonable, albeit non-scientific approach to the resolution of the matter:


56.1 Assume a mid-point damages valuation for the case of the order of $9m plus party / party costs.


56.2 Recognising that the principal pivotal issues require a resolution of conflicting testimony and an acceptance of the credibility of Mrs Fisher’s testimony, a 50 / 50 discount would be an appropriate discount factor which would result in a discounted sum of the order of $4.5m plus party / party costs.


56.3 Recognising that there are disparate cost considerations ranging from failure of the litigation to success against one defendant only, we believe it is reasonable to combine all potential trial costs i.e. $2,400,000 as a discounting factor. On this approach the suggested discounted sum of $4,500,000 could then be reasonably further discounted to a figure of $2,100,000 plus party / party costs.


57. In a conference with the Tutor on 18 July 2006 at which settlement was discussed, a range of discounting scenarios were identified along the above lines, using different quantum and costing assumptions to identify, by the same process, a discounted settlement range of between $1.7m to $2.4m plus costs.


58. On the foregoing basis, and after extensive discussion with the Tutor, Mrs Fisher, we recommended that an offer of $2.4m plus party / party costs be placed before the defendants. Following due deliberation by Mrs Fisher, including Mrs Fisher taking time and family counsel to consider that advice, instructions to this effect were given on 7 August 2006 and accordingly, the offer was made on 8 August 2006. That offer was accepted by the defendants on 22 August 2006.”

55 The calculation referred to in paragraph 56.3 of the advice, recited above, raises issues that were the subject of submission by the parties. Paragraphs 51, 52 and 53 of the advice calculate the costs of the proceedings more precisely and, it seems, that it is those figures that were imported into the calculation in paragraph 56.3.

56 The calculation of the detailed costs suggested that there were costs of the plaintiff at approximately $20,000 per day (bearing in mind the greater degree of preparation that, it is assumed, is involved on the plaintiff’s side and/or higher charges), and it has been assumed that the total costs for the two defendants was $1.2 million. Even if the total costs to the two defendants were $2.4 million, the recoverable costs would only be in the vicinity of $1.2 million. Moreover, it is not at all clear why that amount would be deducted.

57 In determining whether an offer appropriately takes account of the risk of losing and difficulties in liability, there are two possible scenarios: either the plaintiff wins (in which case there are no costs other than the non-recoverable costs of the plaintiff’s own legal representatives); or the plaintiff loses in which case the only costs are those that are recoverable and there is no verdict from which to deduct it.

58 Further, the Court is in a slightly different position from counsel. Counsel must, almost by necessity, have regard to the interests of the tutor. I assume (and have otherwise been informed) that the tutor has little or no resources to cover an adverse costs order against her. But, the interests that the Court must consider are confined to the interests of the plaintiff. The interests of the tutor, in this case, are confined to the interests as the mother (and supporter, monetarily, physically and/or both) of Lauren. The adverse costs order would go against the tutor, not the plaintiff.

59 More fundamentally, if there be a 50 percent level of uncertainty as to success on liability, and one applied, in similar terms to Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, then a deduction of $2.4 million on costs is still inappropriate.

60 The arrangement with counsel (and solicitors) was a contingent fee basis: payment was conditioned upon success. Deducting both sets of costs was essentially double-counting the effect of the discount. More precisely, if the plaintiff were successful, then no adverse costs would be payable and all of the party/party costs would be recoverable. If the plaintiff were unsuccessful, the plaintiff would pay no costs, but the tutor would be liable for party/party costs of each defendant, which, on the analysis of counsel, was, together, $1.2 million. Moreover, it does not seem that, notwithstanding the settlement and cancellation of the hearing dates, there was a huge saving in the non-recoverable costs payable to the plaintiff’s own legal representatives. If there were such savings, then no doubt, that amount could be credited to assess the true value of settlement.

61 On the figures before the Court, there seems to have been some benefit from the settlement in terms of non-recoverable costs, at least taking into account the estimate of non-recoverable costs by counsel before the Court and comparing that with the non-recoverable costs estimated by previous counsel in the advice to which reference has been made. That saving seems to be in or to the effect of approximately $400,000 to $700,000 (i.e. the difference between $1.2 million, non-recoverable costs referred to in the advice, and a sum derived by deducting between $1.6 million and $1.9 million from $2.4 million settlement). Taking a mid-point of savings of $550,000 by settling the matter, then that is an amount that may legitimately be deducted from the otherwise appropriate offer amount (i.e. whatever appropriate amount is derived by assessing an appropriate figure based upon the risks of losing on liability).

62 In the current circumstances, the appropriate approach (if one were to assess the level of damage at $9 million and an appropriate discount for the risk as to liability at 50 percent) would be to derive a figure of $4.5 million from which one would deduct somewhere between $500,000 and $800,000 (conservatively $800,000) as the saving in costs by settling, which would derive the figure of $3.7 million, or $4 million if one were taking the lower savings figure.

63 On the basis of the foregoing, taking the calculations of senior counsel and correcting the double-counting of costs, the initial Offer of Compromise should have been in the order of $3.7 million or $4 million.

Liability and Syntocinon

64 Because of factors associated with the possibility that this matter may proceed to trial, I do not intend to publish complete findings on liability. Like a precise calculation of damage, such findings may affect the way in which the parties deal with the matter hereafter.

65 Nevertheless, it is necessary to deal with the assessment of the chances of success in a broader context.

66 Much of the advice of senior counsel was concerned, understandably given the theory of the case propounded and recited above, with the credit issues associated with Ms Fisher, and the likelihood that the Court would find that labour was established prior to the initial prescription and administering of Syntocinon. Further, it assumed that the issues in the trial depended upon the decision to administer Syntocinon and the decision at 10.00am to double (a second time) the dosage.

67 There are number of general comments that must be made about the theory of the case. First, little or no regard is had to the doubling of the dosage at 9.30am and its continuation beyond 9.40am.

68 It is necessary to deal, generally, with the issues of liability. I accept, without deciding, that it was usual procedure (and/or a reasonable decision) to effect an artificial rupture of the membrane. This was presumably done for the purpose of inducing labour, although, it seems, that no real time was allowed for it to take effect in that way. Thereafter, within 15 minutes, Syntocinon was administered.

69 It is necessary to describe the effect of Syntocinon. Syntocinon is, as the name suggests, a synthetic form of oxytocin, a naturally produced hormone. It is used to stimulate contractions in inducing or augmenting labour. It is used, sometimes, in early pregnancies for the purpose of terminating the pregnancy. In 1985, its well-known adverse effects included tetanic contraction (i.e. continuous contraction without rest) and foetal anoxia (lack of oxygen).

70 MIMS refers to it as synthetic oxytocin (a synthetic octapeptide identical with oxytocin, a hormone released by the posterior lobe of the pituitary) with a constant and more reliable effect than the natural hormone. It cites as indications: “induction of labour; inadequate uterine effort; management of third state of labour; post-partum haemorrhage” in any relevant form used for these proceedings. In other forms it can also be used for disorders in lactation.

71 Its contraindications, according to MIMS, relevantly are:

“cephalopelvic disproportion, abnormal presentation, excessive distension of the uterus (e.g. multiple pregnancy, hydramnios), parity greater than four, elderly multiparae, previous caesarean section or other surgery involving the uterus.”

MIMS also refers to the contraindications associated with hypertonic contractions. Interestingly, MIMS has the following entries under precautions and overdosage:

“ Precautions
The induction of labour by means of oxytocic agents should be attempted only when strictly indicated for medical reasons rather than for convenience. Administration should only be under hospital conditions and qualified medical supervision. Syntocinon when given for induction and enhancement of labour, must only be used as IV drip infusion and not intramuscularly. Careful monitoring is important (foetal heart rate, if possible, tocometry, blood pressure), so that dosage may be adjusted to individual response….


Overdosage
Overdosage may give rise to the following complications: foetal distress (slowing of foetal heart rate, meconium staining of the amniotic fluid, foetal asphyxia; uterine hypertoxicity, tetanic contraction or rupture.”

72 Some textbooks, to which reference has been made in the evidence, were in or to the following effect:

“Oxytocin is a potent stimulant of uterine activity and for this reason should only be used with due care, and in physiological doses, in general, the infusion should initially give no more than two milli-units of oxytocin per minute. This quantity is obtained in the solution of two units of oxytocin per litre of Hartmann’s solution (1:5,000 solution) is run at 15 drops per minute. The infusion rate should be increased incrementally until contractions occur at intervals of 3-5 minutes and last 60-90 second. It should not be increased to a concentration exceeding 40 milli-units per minute unless an infusion pump is used.” (D Llewellyn-Jones, ch 49, “Termination of Pregnancy”, Fundamentals of Obstetrics and Gynaecology: Vol 1 – Obstetrics , 3rd ed (1982) London, Faber and Faber at 390, 391.)

73 A post-graduate textbook current at the time warned of the different and enhanced sensitivity of the multiparous uterus to oxytocin in the following terms:

“Conditions which respond particularly well to oxytocic augmentation of existing uterine contractions including, primigravida, prolonged ‘latent phase’ of labour, and secondary arrest of uterine activity occasioned by foetal occipitoposterior position. In multiparous women, great care must be taken before augmenting uterine action with oxytocics. In multiparous it is much less likely that inefficient uterine action is the cause of prolonged labour. Because there is a grave risk of causing uterine rupture in multiparous by the injudicious use of oxytocics, detailed consideration of both maternal passages and the passenger are always necessary before administration …


The manner in which elective measures operate is of considerable importance. The purpose of augmentation is not solely to promote an increased rate of labour, but to do so in an acceptable manner. For example, during augmentation, intra-uterine pressure should be monitored to ensure that adequate myometrial relaxation is occurring between contractions. If the resting uterine tone is increased to undesirable levels by the oxytocics, or, perhaps, they promote contractions which are too frequent or too prolonged, the complications of management will soon outweigh the advantages of acceleration. It is also clear from the work of Steer, et al (1975), that to continue to increase oxytocin stimulation in the inefficient uterus, once stable uterine activity has been achieved is both useless and dangerous.” (JM Beazley, ch 23, Special Circumstances Affecting Labour in: Integrated Obstetrics and Gynachology for Post Graduates , 3rd ed (1981) (ed. Sir John Dewhurst), Blackwell Science, 1981, at 416.)

74 None of the foregoing establishes that the decision to administer Syntocinon was unreasonable or in breach of any duty of care by the Doctor. On the contrary, the evidence before the Court establishes that, in appropriate circumstances, the administering of Syntocinon is a generally available option, utilised by obstetricians and the decision to administer it could not be said to be negligent, whether or not there had been some establishment of labour at or before 9.00am.

75 However all of the evidence, that I accept, indicates that the use of Syntocinon, in a case such of Mrs Fisher’s (i.e. fifth pregnancy and third child), must be done with extreme caution.

76 Further, the evidence of the experts is consistent that the use of Syntocinon, and its effect on any particularly patient, will differ significantly. It is for that reason that constant monitoring is recommended and/or insisted upon.

77 In this case, the Doctor prescribed the administering of Syntocinon, other than at the lowest dosage. Even though Ms Fisher was in the category of patients that the texts recommend should be given the lowest dosage, I accept, without deciding, that it was open, taking reasonable care, for the Doctor to administer Syntocinon at a higher dosage than the lowest.

78 The Doctor ordered the administering of Syntocinon at 10 drops per minute (the concentration remained constant) at 9.00am and, according to his answer to interrogatories, to be increased to 20 drops per minute after 30 minutes and 40 drops per minute after a further 30 minutes, the infusion to be controlled according to midwife discretion to adjust downward or ceased. The necessary implication is that the midwife would be monitoring and did not have the discretion to adjust upward.

79 According to the Hospital’s answer to the same or similar interrogatories, the standing order (presumably from the Doctor) was to commence at 10 drops per minute (no specific order having been given) and “increased in accordance with the protocol for the induction of labour”.

80 The Hospital protocol for the induction of labour and the use of Syntocinon for the relevant date, despite notices to produce and subpoenas, has not been produced by the Hospital. There is, however, a document before the Court, being a document of the Hospital entitled “Induction of Labour, Medical- Syntocinon Infusion (Routine Regime) for IMED”. That document is dated December 1984 (the first date of its publication) (i.e. some seven months before the date of birth and injury), is said to be the sixth revision and was first created in that form, it seems, in March 1992. It seems that this is the latest protocol (or document that seems to be a protocol) that was available and, on the doctrine of continuity, one assumes is the same as, or little different from, that which applied in July 1985. It seems as if it is a document that forms part of a larger document in relation to Hospital procedures and is updated from time to time by the substitution of pages. The document deals with the need to assess the patient, the collection of equipment, the need to prepare the patient and the preparation of Syntocinon solution. Care must be taken when comparing this document (Exhibit E) and the administering of Syntocinon to Ms Fisher. First, calculations must be performed which take account not only of the drops per minute, but also the concentration of the Syntocinon solution. Secondly, an obstetrician, necessarily and by definition an expert in the field, would be entitled to depart from the generally prescribed regime.

81 Nevertheless, Exhibit E establishes a regime for low-dose Syntocinon infusion of 10 international units in 1 litre of Hartmann’s solution, with an initial rate of 6 mls per hour (15 drops) to be increased every 30 minutes by 3 mls per hour (i.e. by 50 percent). The indications are for multigravida i.e. Ms Fisher.

82 On the evidence before the Court the dosage employed by the Doctor was mid-way between the low-dose and medium-dose regime in Exhibit E, the Hospital document. At 20 drops per minute it also exceeded the low-level in that document and at 40 drops per minute it exceeded both the low-level and medium-level protocols.

83 Also relevant is that the administration regime prescribed by the Doctor increased the dosage of Syntocinon at almost double the rate of increase as that under the Hospital regime (and in some cases by three times the rate).

84 Most importantly the Hospital document which, I infer, either applied or was so similar to the document that applied that it matters not, required the Syntocinon infusion to be adjusted every 30 minutes to 1 hour “until moderate to strong contractions occur, 4 in every 10 minutes, with the uterus relaxing between contractions”.

85 At 9.14am (13 minutes after the first administering of Syntocinon) there were 2 contractions per minute. By 9.44am (according to the CTG) there were between 3 and 4 contraction per minute and by 9.50am (or at least between 9.50am and 10.00am) there were 4 contractions in 10 minutes. According to the Hospital protocol at the time at which contractions reached 4 in every 10 minutes, Syntocinon should have ceased. Further, at 9.50am, the notes record that the nitrous oxide was not having the necessary effect and pethidine was required. This is further evidence that, at or about 9.50am, Ms Fisher was experiencing extremely strong contractions. On that basis, there is a strong probability that the Hospital (and the Doctor) ought to have adjusted the Syntocinon infusion to zero at or about 9.50am and at least between 9.50am and 10.00am.

86 Further it is clear that, assessing Ms Fisher as an individual, instead of a generally applicable regime, contractions were strong from 9.35am (the time at which nitrous oxide was administered) and were at 3 contractions in 10 minutes between 9.20am and 9.30am.

87 On that basis, there seems to be a strong case that, constant expert assessment would have decreased, rather than increased, the administering of Syntocinon (or at the very least not increased it at 9.30am).

88 On the above analysis, the breach of care occurs in a number of ways. As is noted by senior counsel in his advice, it is unreasonable to expect that a nurse or midwife would be countermand (without hard evidence or in an emergency situation) the directions of a consulting obstetrician. In circumstances, where caution was required, because of the history of pregnancies of Ms Fisher, and constant assessment was required, it may be negligent of the Doctor to have delegated to the midwife the constant assessment that was required of this patient, with a particular and peculiar history. Further, it may have been negligent of the Hospital not to have assessed Ms Fisher in a manner more consistent with her history and to have interfered with the regime imposed by the Doctor significantly earlier than the onset of a crisis.

89 In my opinion, on the evidence that is before the Court, there is a strong case on liability relating to the doubling of the dosage at 9.30am and the non-cessation of the dosage at or about 9.45am and, at the very latest, at 9.50am. None of the foregoing deals with the conflict between the answer to the interrogatories by the Doctor and by the Hospital. If, as is clearly available on those answers, it is accepted that the Hospital was to implement its own regime (as the Hospital suggests), the increase in dosage of Syntocinon far exceeds the increase in the Hospital’s regime that is before the Court, in these proceedings.

Conclusions

90 As previously stated, there is, in my view, a strong case for breach of duty by either the Doctor or the Hospital, or both. The overwhelming evidence (if not uncontroverted) is that in a multiparous patient extreme caution must be utilised in administering Syntocinon. At the very least, there must be constant monitoring and assessment of the effect of the Syntocinon on the patient. That constant assessment was lacking.

91 There are, nevertheless, still risks associated with proceeding to trial. It is not the function of the Court to determine the level of damages that should have been negotiated or should be awarded if, and when, the matter proceeded to trial.

92 It is, as stated initially, the function of the Court to determine whether the approval of this settlement is in the interests of the plaintiff who is, and will continue to be, under a disability. That involves the assessment of whether the risk of losing, on the question of liability, or, albeit remote, of obtaining less by way of damages, outweighs the benefit in a settlement that will deliver some recompense immediately.

93 I have little or no doubt that, if the matter were to proceed to trial and the plaintiff were successful, damages would be far greater than the amount of the settlement. That is a result that is not in contest. As earlier stated, even the defendants submit that the level of damage would be $6.5 million.

94 It is the issue of liability that is most concerning. Even though I consider that there is a strong case on liability. That liability still depends upon contested expert evidence.

95 While there is no contest that the birth produced the injuries, and the bradycardia was the cause of the lack of oxygen, there is some contest as to whether the Syntocinon was the cause of the hypertonus, which in turn caused the bradycardia. The overwhelming preponderance of expert evidence suggests so. The experts differ on whether the administering of Syntocinon at the levels was a reasonable course and differ on whether cessation of the Syntocinon, at particular times, would have prevented the hypertonus and/or the bradycardia, and, as a consequence, prevented the injury.

96 Nevertheless, the overwhelming consensus of the expert medical evidence is that were it not for the use of the Syntocinon, there would have been no hypertonus, there would have been no bradycardia and there would have been no injury to Lauren.

97 The above, however, does not resolve liability. Liability is not determined ex post facto or with the benefit of hindsight. The duty imposed on a medical practitioner is not perfection – just reasonable conduct:

“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a ‘single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment’ (Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871, per Lord Diplock at p 893); it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case (Gover v. South Australia (1985) 39 SASR 543, at p 551.). It is of course necessary to give content to the duty in the given case.
The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill….” ( Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 483)

98 Of course “skilled person” is the ordinary obstetrician, who would be expected to know the problems with Syntocinon and its contraindicators. Further, given that the risk, in overuse of the hormone, or cessation of its use too late is, or may be, catastrophic (as it was here), the appropriate response would be to monitor constantly, by a like expert, or not use it at all: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

99 However, the main question on liability remains whether, accepting on the evidence that the original prescription of Syntocinon was reasonable, the monitoring regime the Doctor implemented was reasonable and/or whether the Hospital’s augmentation of the dosage of Syntocinon (and/or its non-cessation at an earlier time) was reasonable. It seems, on balance, that the Hospital’s conduct was lacking in reasonable care.

100 However, as can be seen, there are significant issues on the question of liability. There are other bases, upon which liability could be determined favourably to the plaintiff, but they depend, even more than the issue outlined above, on contested facts. On liability, the plaintiff could lose. If Malec v Hutton be the correct approach to this issue of uncertainty, I would assess the percentage as 60% likelihood of success on liability. However, if successful, the plaintiff must receive more than the settlement, and, if one were to apply a percentage to the likely damages to account for the uncertainty, the damage would be assessed at significantly more than the settlement (i.e. 60% of $12 million).

101 It is therefore a fine line as to whether disapproval of the settlement and, as a consequence, requiring the parties to proceed to trial, in the hope that the plaintiff will succeed, is in the interests of the plaintiff.

102 But for one factor, this would be a fine balance. The one factor is the measurement of the benefit from the settlement. Apart from the immediacy of payment, the plaintiff will receive between $1.6 million and $1.9 million. As a consequence of the settlement, the plaintiff will lose her current benefits (and the benefits otherwise applicable to her carers).

103 I am informed, and accept, that the result of the settlement for $2.4 million is that Lauren receives, after the payment of non-recoverable costs, an amount between $1.6 million and $1.9 million. The consequence of the settlement of $2.4 million is that the current benefits received by way of disability pension, carer payment etc. is foregone for a period calculated by dividing the total gross settlement sum together with costs by $600, the resultant calculation being the number of weeks that Government benefits are foregone. That calculation (say $3 million divided by $600) would be for a period significantly longer than the longest assessment of life expectancy from any one of the experts whose reports are before the Court. The current total of Government benefits received by, or because of, Lauren’s predicament is $1,630 per week.

104 At 6 percent return, the current benefit of $1,630 per week is equivalent to the investment of $1.5 million. The difference between the benefits payable by the Government and the benefit of the settlement is between $6,000 and $24,000 per annum (between $115 and $460.30 per week). While $500 per week is a significant sum, in the context of the expenses of the care of Lauren, it is not significant.

105 The downside of course is that, if the matter were to proceed to trial, and the plaintiff were unsuccessful, there will be an adverse costs order, which, as a result of the complications in the proceedings thus far, will be significant. But that is an order that is made against the tutor, not the plaintiff. It is only to the extent that the tutor’s interests impact upon the plaintiff that such a costs order is a matter that I am entitled to take into account. In that respect, I am in a different position from counsel who may be advising on settlement.

106 Bearing in mind the principles on the approval or disapproval of a settlement that I have earlier recited, and the circumstances of the claim that is made by the plaintiff and her interests, I am of the view that the prospect of obtaining a greater sum by rejecting the present compromise is good enough to outweigh, significantly, the risk of not getting any more. This is notwithstanding the agreement of the parties, but bearing in mind the value of the risk of not getting any more, the prospects on liability, and the difference between the sum that would be awarded, (if the plaintiff were successful) and the amount of the settlement.

107 For the above reasons, the Court makes the following orders:

(i) The Court disapproves the agreement formed by the acceptance, on 22 August 2006, by the defendants, of an Offer of Compromise made by or on behalf of the plaintiff on 8 August 2006, in these proceedings;

(ii) A declaration that, pursuant to s 76(5) of the Civil Procedure Act 2005, the agreement is not binding on any party to the proceedings, each of whom was a person by whom or on behalf of whom the agreement was made;

(iii) The proceedings are referred to the Registrar;

(iv) The hearing of this matter is granted expedition;

(v) The parties be at liberty, within two days of the commencement of law term 2009, to apply to the Court, to my Associate, to refer the matter for mediation, either before the Registrar or otherwise, and if so on what conditions, and to file an application for any order as to costs, to my Associate.

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