Godsell v Ang

[2018] NSWSC 779

Supreme Court

New South Wales

Medium Neutral Citation:	Godsell v Ang [2018] NSWSC 779
Hearing dates:	21 May 2018
Date of orders:	21 May 2018
Decision date:	21 May 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The proposed settlement of the quantum of damages, in the sum of $XXXXX , to which the plaintiff will be entitled, in the event that she succeeds on the liability issue is approved
Catchwords:	CIVIL PROCEDURE – approval of proposed agreement on quantum of damages - contested liability - breach of duty of care - causation - bipolar disorder - lamotrigine - side effects – Steven-Johnson Syndrome - Toxic Epidermal Necrolysis - legally blind - fully qualified high school teacher - quantum questions - satisfied that the proposed agreement is in the plaintiff’s best interests
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 76
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Julie Theresse Godsell (Plaintiff) Dr Pek Ang (Defendant)
Representation:	Counsel: D Campbell SC with I McGillicuddy (Plaintiff) R Weinstein SC with H Chiu (Defendant)   Solicitors: Beston Macken McManis (Plaintiff) HWL Ebsworth Lawyers (Defendant)
File Number(s):	2014/248799
Publication restriction:	Non publication order in respect of the amount plaintiff is entitled to.

EX TEMPORE Judgment

1. The plaintiff, who proceeds by her tutor, is suing the defendant for negligence in the course of his practice as a consultant psychiatrist. The motion has been listed for Hearing before her Honour Associate Justice Harrison with an original estimate of 15 days.

2. The case was supposed to start today but there have been a development and it will not commence before her Honour until Wednesday, 23 May 2018. The relevant development is that the parties have agreed on the quantum of damages to which the plaintiff will be entitled if she is successful on the contested liability issues which relate to questions of breach of duty of care and causation.

3. Under s 76(4) of the Civil Procedure Act 2005 (NSW) (“Civil Procedure Act”) an agreement for the compromise or settlement of any matter in dispute in any proceedings brought by a person under a legal incapacity requires the approval of the Court to be legally effective. In the absence of approval, the agreement does not bind the plaintiff. Although the parties have not compromised the whole action, it is quite clear from the terms of s 76(4) that a settlement of any matter in dispute, including the question of the quantum of damages to which the plaintiff may be entitled upon the contingency that she is successful on liability requires approval.

4. I have had the benefit of affidavits from the plaintiff’s tutor and from her solicitor, Mr McManis. Attached to Mr McManis’ affidavit is a large bundle of medical expert evidence to be led in the Trial. I have also been provided with a bundle of the joint reports of the various experts engaged in the case going to the questions of breach of duty of care, causation and the assessment of damages.

5. It is apparent to me that in no small measure the success of the plaintiff’s claim will depend upon the resolution of primary questions of fact as to what occurred in consultation between the plaintiff and defendant on 3 July 2017 and, in particular, 17 July 2012.

6. The plaintiff had been diagnosed as suffering from bipolar disorder in the 1990’s and for many years the defendant had been her treating psychiatrist. There was no doubt that condition had a significant effect upon the plaintiff’s health and well-being and required a suite of prescription medication to control it.

7. In July 2012 she had been suffering in particular from the depressive symptoms related to her underlying condition which were not being well managed by the medications she was then taking and the defendant prescribed an additional drug for her, being Lamotrigine.

8. Informed as I am by the medical evidence to which I have referred, it seems that there is a recognised risk of the possibility of rare, but very serious, side-effects connected with the use of that drug and those side-effects were realised in the plaintiff’s case. In particular the plaintiff suffered what is referred to as Steven-Johnson Syndrome, which progressed to Toxic Epidermal Necrolysis which as the clinical name suggest is a very severe disease of the skin.

9. That condition, in the plaintiff’s case, seems to have progressed to the position where, as a consequence of it, at least on the evidence available to her, she is now legally blind. There is no gainsaying the severity of that condition.

10. Whatever issues there may be concerning liability, it is appropriate for me to consider the question I am asked to determine today on the assumption that the plaintiff will win her case. It is only on that assumption that it is possible to decide, or evaluate, whether the proposed agreement as to damages is in the plaintiff’s best interests, which I consider to be the relevant test.

11. My task is made somewhat easier in this case given the fact that both the plaintiff and the defendant are extremely well-represented by Senior Counsel, Junior Counsel and solicitors, all of whom have long experience in the field. Of the younger practitioners their learning curve has no doubt been accelerated by intensive involvement in litigation of this type. I have also had the benefit, in accordance with the usual practice, of the confidential advice provided in relation to the issue by Mr Campbell of Senior Counsel, who appears for the plaintiff with Mr McGillicuddy of Counsel. That advice, of course, will be kept confidential, and placed in an envelope marked “not to be opened except by order of a judge”.

12. There are many issues informing the quantum questions in this case, not the least of which is the question of the severity of the pre-existing bipolar condition and its likely progression but for the cause of action relied upon by the plaintiff. The issues are further complicated by the consideration that is part of the plaintiff’s case that her psychiatric condition has been worsened by the negligence of the defendant.

13. Given the nature of the condition she has suffered and having regard to her pre-existing bipolar disorder, there are questions about her life expectancy, which have been addressed by well-known American experts in this field.

14. There are also questions about the entitlement to damages for economic loss. Again, this is related to the pre-existing condition. Although the plaintiff is a fully qualified high school teacher, even prior to July 2012, when her symptoms were bad she was unable to hold down that position, at least on a full-time basis.

15. Having taken the time to consider not only the opinion of learned counsel but also the evidence to which I have referred in more general terms and acknowledging the particular factual complexities in the case, I am comfortably satisfied that the proposed agreement is in the plaintiff’s best interests and ought to be approved in accordance with the provisions of s 76 Civil Procedure Act.   

16. I think appropriate order is that the proposed settlement of the quantum of damages to which the plaintiff will be entitled, in the event that she succeeds on the outstanding liability issues, in the sum of $XXXXX  is approved.

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Decision last updated: 30 May 2018