Gerrard v South Eastern Sydney Local Health District
[2011] NSWSC 1644
•18 November 2011
Supreme Court
New South Wales
Medium Neutral Citation: Gerrard v South Eastern Sydney Local Health District [2011] NSWSC 1644 Hearing dates: 18/11/2011 Decision date: 18 November 2011 Jurisdiction: Common Law Before: Garling J Decision: (a) I order that the first defendant's name be amended from South Eastern Sydney Local Health Network to South Eastern Sydney Local Health District.
(b) Pursuant to section 76(4) of the Civil Procedure Act 2005, I approve the agreement for the settlement of the proceedings recorded in the terms of settlement of 18 November 2011.
(c) I order that there be judgment for the plaintiff against the first defendant in the sum set out in paragraph 1 of the terms of settlement.
(d) I order that there be judgment for the plaintiff against the second defendant in the sum set out in paragraph 2 of the terms of settlement.
(e) I order that the first and second defendants pay the plaintiff's costs of the proceedings against the first and second defendants, on the ordinary basis as agreed or taxed in the proportions respectively of 10 per cent and 90 per cent.
(f) I note that the judgment sums include all amounts payable, if any, under the Health and Other Services (Compensation) Act 1995 or the Health and Other Services (Compensation) Care Charges Act 1995, the Social Security Act 1991 or any other legislation under which repayment must be made.
(g) I order that pursuant to section 77(2) of the Civil Procedure Act 2005 that the first defendant is to pay the judgment sum referred to in paragraph 1 of the terms settlement into Court, subject to any lawful deductions or deductions agreed between the parties.
(h) I order that pursuant to section 77(2) of the Civil Procedure Act that the second defendant pay into the Court the judgment sum set forth in paragraph 2 of the terms of settlement, subject to any lawful deductions.
(i) I note the agreement of the parties that the first and second defendants are at liberty to deduct and pay from the judgment sums any amount repayable under the relevant legislation.
(j) I note the agreement of the parties that interest will not begin to accrue on the judgment sum which is unpaid until 28 days after the receipt by the first and second defendants lawyers of a written notice that the first and second defendants must lawfully pay any amount under the relevant legislation or else that no amount is required to be paid.
(k) I note that the parties are agreed that these terms of settlement are not to be disclosed except as required by law.
Catchwords: CIVIL - Negligence - Personal injury - Proposed settlement - Significant dispute on question of liability - Disputed options for damages would result in significant differences - Approved pursuant to s76(4) Civil Procedure Act Legislation Cited: Civil Procedure Act 2005
Health and Other Services (Compensation) Act 1995 (Cth)
Health and Other Services (Compensation) Care Charges Act 1995 (Cth)
Social Security Act 1991 (Cth)Category: Principal judgment Parties: Samantha Gerrard
South Eastern Sydney Local Health DistrictRepresentation: M Cranitch SC (P)
R Weinstein SC (D1)
E C Muston (D2)
Beilby Poulden Costello Lawyers (P)
GILD Insurance Litigation Pty Ltd (D1)
Blake Dawson Lawyers
File Number(s): 2008/289164 Publication restriction: Nil
EX TEMPORE Judgment
In this matter, I note that the parties have agreed in principle, and subject to the approval of the Court pursuant to s 76 of the Civil Procedure Act 2005, to resolve the matter.
The claim arises from the birth of the plaintiff Samantha Gerrard on 20 July 1988 at the Royal Hospital for Women, in Sydney. As a consequence of the birth Samantha has been severely disabled and is diagnosed as having cerebral palsy.
Samantha presently lives with her mother and two siblings in Queensland. Her care is undertaken by both her mother and her father, although they are presently separated.
From time to time they have been assisted in this monumental undertaking by the provision of assistance from external agencies. However, the great bulk of the care Samantha has been undertaken by her mother.
Samantha is profoundly disabled. She is incapable of working. She is unable to care for herself. She requires constant supervision.
The proceedings were listed for hearing for a three week period commencing 21 November 2011 in this Court. As part of the ordinary processes of the preparation for trial, there had been joint meetings of expert neonatologists and also of expert obstetricians.
These meetings have produced a joint report which considerably narrowed the issues in dispute. However, each of those joint reports whilst narrowing the issues in dispute, made plain that there was significant dispute between the parties as to what had happened in July 1988 and what the appropriate course of obstetric care was that should have been followed.
It is clear to me from the reading of those joint reports and the other medical reports to which I have had access that there was a real issue in the proceedings as to whether the plaintiff would have succeeded or not. It is not possible for me to express any view on that question other than to note that there was a significant dispute on the question of liability.
As well, although the plaintiff is profoundly disabled, a significant issue arose on the question of damages as to what in the future would be the most likely course undertaken for her care and what would be the reasonable course undertaken for her care. Of the two choices available to the Court, there would result in a difference in damages of a significant sum of money. Accordingly whilst it is often easy for damages to be calculated in cases such as this, there nevertheless remained an issue which may affect the ultimate sum of damages which the plaintiff recovered.
In all of those circumstances and particularly having regard to the written advice of senior and junior counsel for the plaintiff which I have carefully read, I am prepared to approve, pursuant to s 76(4) of the Civil Procedure Act, the settlement of the matter in accordance with the Terms of Settlement executed by the parties dated 17 November 2011, which I will initial and place with the papers. It will necessary to make formal orders giving effect to this settlement.
I will make the following orders:
(a) I order that the first defendant's name be amended from South Eastern Sydney Local Health Network to South Eastern Sydney Local Health District.
(b) Pursuant to section 76(4) of the Civil Procedure Act 2005, I approve the agreement for the settlement of the proceedings recorded in the terms of settlement of 18 November 2011.
(c) I order that there be judgment for the plaintiff against the first defendant in the sum set out in paragraph 1 of the terms of settlement.
(d) I order that there be judgment for the plaintiff against the second defendant in the sum set out in paragraph 2 of the terms of settlement.
(e) I order that the first and second defendants pay the plaintiff's costs of the proceedings against the first and second defendants, on the ordinary basis as agreed or taxed in the proportions respectively of 10 per cent and 90 per cent.
(f) I note that the judgment sums include all amounts payable, if any, under the Health and Other Services (Compensation) Act 1995 or the Health and Other Service (Compensation) Care Charges Act 1995, the Social Security Act 1991 or any other legislation under which repayment must be made.
(g) I order that pursuant to section 77(2) of the Civil Procedure Act 2005 that the first defendant is to pay the judgment sum referred to in paragraph 1 of the terms settlement into Court, subject to any lawful deductions or deductions agreed between the parties.
(h) I order that pursuant to section 77(2) of the Civil Procedure Act that the second defendant pay into the Court the judgment sum set forth in paragraph 2 of the terms of settlement, subject to any lawful deductions.
(i) I note the agreement of the parties that the first and second defendants are at liberty to deduct and pay from the judgment sums any amount repayable under the relevant legislation.
(j) I note the agreement of the parties that interest will not begin to accrue on the judgment sum which is unpaid until 28 days after the receipt by the first and second defendants lawyers of a written notice that the first and second defendants must lawfully pay any amount under the relevant legislation or else that no amount is required to be paid.
(k) I note that the parties are agreed that these terms of settlement are not to be disclosed except as required by law.
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Decision last updated: 01 February 2012
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