Godsell v Ang (No 2)
[2018] NSWSC 795
•25 May 2018
Supreme Court
New South Wales
Medium Neutral Citation: Godsell v Ang (No 2) [2018] NSWSC 795 Hearing dates: 25 May 2018 Date of orders: 25 May 2018 Decision date: 25 May 2018 Jurisdiction: Common Law Before: Campbell J Decision: (1) Order that the net proceeds of the approved compromise after deduction therefrom of any statutory refunds or other repayments to any State or Commonwealth government or statutory authority as may be required by law be paid into court under s 77(2) Civil Procedure Act 2005 (NSW) pending further order.
(2) I grant liberty to apply on three days' notice.Catchwords: CIVIL PROCEDURE – professional negligence - duty of care – materialisation of rare but severe side effect of medical treatment - liability – lamotrigine - questions of primary fact - corroboration - causation issues - joint expert report - approval of proposed compromise - mediation unsuccessful - entry into deed of release - court approval required - approved Legislation Cited: Civil Procedure Act 2005 (NSW), s 76, 77;
Uniform Civil Procedure Rules 2005 (NSW), r 20.26Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: Julie Theresse Godsell (Plaintiff)
Dr Pek Ang (Defendant)Representation: Counsel:
Solicitors:
D Campbell SC with I McGillicuddy (Plaintiff)
R Weinstein SC with H Chiu (Defendant)
Beston Macken McManis (Plaintiff)
HWL Ebsworth Lawyers (Defendant)
File Number(s): 2014/248799 Publication restriction: Non publication order in respect of the amount the plaintiff is entitled to.
EX TEMPORE Judgment (REVISED)
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I am considering an application for approval of a compromise under the provisions of s 76 of the Civil Procedure Act 2005 (NSW) (“Civil Procedure Act”). The need for approval of the compromise relates to the consideration that the plaintiff, Ms Godsell, is a person under a legal incapacity and has therefore proceeded by her sister Ms Hewitt as her tutor. It is unnecessary for me to enter into the details of why that is necessary in the particular case.
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The proceedings relate to the plaintiff's claim against the defendant, who is a consultant psychiatrist, for professional negligence relating to his prescription for her treatment of an antidepressant drug named Lamotrigine. The use of that drug involves the risk of the materialisation of a rare, but severe, side-effect or adverse consequence, which regrettably, and indeed tragically, happened to the plaintiff.
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The proceedings are part-heard before her Honour Associate Justice Harrison of the Common Law Division. It came before me on Monday, 21 May 2018 for approval of a proposed agreement as to quantum. The material that was tendered on that occasion by agreement of the parties is before me again today and I have had regard to the transcript of my reasons to refresh my memory of the circumstances of the case.
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I approved the agreement as to quantum in the sum of $XXXXX X. After that order the parties engaged in a court appointed mediation on Tuesday, 22 May 2018. I am informed that mediation did not bear fruit. The proceedings commenced before Harrison As J on Wednesday, 23 May and while the next friend, who is a material witness as to liability because she attended the consultations with the defendant to support her sister, was under cross-examination, an offer of compromise that had been served by the plaintiff was accepted by the defendant. The parties have agreed, however, rather than relying upon the operation of Uniform Civil Procedure Rules 2005 (NSW) r 20.26 in relation to acceptance of the offer of compromise, to settle their differences by entry into a deed of release subject, of course, to the Court's approval under s 76 Civil Procedure Act.
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A number of factual matters are not in question as I understand the material that has been put before me, including the fact that the severe medical consequences suffered by the plaintiff were a recognised but rare complication of the use of the drug Lamotrigine, which actually materialised in the case. That of course involves the proposition that her severe medical condition was in fact caused by her ingestion of the drug.
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What is in issue in these proceedings is whether the defendant was negligent in prescribing the drug and perhaps more pertinently in increasing the dosage after two weeks of treatment. And whether any such negligence was a legal cause of the severe consequences that ensued. The question of negligence really turns upon what are disputed questions of primary fact as to what occurred on the consultations of 3 and 17 July 2012. I should say that from the material I have seen, the plaintiff's version is corroborated by, as I said, the next friend and another sister who also attended the consultation with her. But there are contemporaneous documents which may be understood as corroborating the version of the defendant, at least so far as he denies a report to him of relevant symptoms which should have led to a discontinuance of the treatment.
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Where there are disputes of primary fact of that type, notwithstanding evidence pointing in either direction, it is obvious that the party bearing the onus of proof is at risk of failure, even if only because the judge cannot conscientiously make a decision between the competing bodies of evidence. But moreover, there is a real question about whether discontinuance of the drug on 17 July would have been made any difference to the outcome on the assumption that Stevens-Johnson Syndrome, as it is referred to, may by then have already developed beyond its prodromal phase. This is very much a live question according to the joint report of experts convened to address causation issues.
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The amount proposed is exactly 50% of the approved agreement as to quantum applicable if the plaintiff were to be entirely successful. This is a very pragmatic approach to settlement given the nature of the issues and the potential for them to fall either way.
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I have had the considerable advantage of reading not only some of the evidence in the case but also the confidential advice of Mr Campbell of Senior Counsel and Mr McGillicuddy of Counsel who represent the plaintiff, both of whom are very experienced counsel in the field. I have also had the benefit of the views of Mr McManis, their equally experienced instructing solicitor, concerning the settlement. Given what I have said about the issues, and from my reading of the evidence in the time available I have formed the view that the settlement is in the plaintiff's best interests.
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I am aware that there are some significant deductions to be made from the settlement for the purpose of satisfying the plaintiff's legal obligations under federal law and to her private health insurer. These are unavoidable and would need to be deducted in any event had the plaintiff been successful. The net figure as calculated by Mr McManis does not change my view that this is a sensible resolution of the case, and as I have said in the plaintiff's best interests.
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For these reasons, I approve the settlement reduced to the deed of release which I have marked MFI 1 and returned to counsel upon the undertaking of the solicitors to produce the deed to court if called upon to do so by a judge.
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I will stand the matter down to enable counsel to reach an agreement about some procedural matters I raised at the outset of the proceedings.
(After a short adjournment.)
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I note the further agreement of the parties signed by the solicitors as to the future conduct of the proceedings. I will initial that memorandum and place it with the papers. Subject to those matters I order that the net proceeds of the approved compromise after deduction therefrom of any refunds or other repayments to any State or Commonwealth governmental or statutory authority, as may be required by law, be paid into court under s 77(2) Civil Procedure Act pending further order and I grant liberty to apply on three days' notice.
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Decision last updated: 30 May 2018
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