Grahame Rex by his tutor Joshua Michael Rex v Illawarra Shoalhaven Local Health District

[2021] NSWSC 247

Supreme Court

New South Wales

Medium Neutral Citation:

Grahame Rex by his tutor Joshua Michael Rex v Illawarra Shoalhaven Local Health District [2021] NSWSC 247

Hearing dates:

17 March 2021

Date of orders:

17 March 2021

Decision date:

17 March 2021

Jurisdiction:

Common Law

Before:

Hamill J (as Duty Judge)

Decision:

1. The settlement is approved in accordance with s 75 of Civil Procedure Act 2005 (NSW).

2. The defendant is to pay the balance of the judgment monies after the statutory deductions to Joshua Michael Rex pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW).

Catchwords:

CIVIL PROCEDURE – approval of settlement – by consent – whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity – settlement approved

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 3, 75, 76(3), 77

NSW Trustee and Guardian Act 2009 (NSW), s 38

Category:

Principal judgment

Parties:

Grahame Rex (Plaintiff)
Illawarra Shoalhaven Local Health District (Defendant)

Representation:

Counsel:
D Hirsch (Plaintiff)

Solicitors:
Beilby Poulden Costello (Plaintiff)

File Number(s):

2021/55531

Publication restriction:

Nil

Ex TEMPORE Judgment (REVISED)

1. By summons filed on 26 February 2021 this is an application pursuant to s 75 of the Civil Procedure Act 2005 (NSW) for approval of a settlement between the plaintiff, Grahame Rex by his tutor, Joshua Rex, and the Illawarra Shoalhaven Local Health District. The summons refers to s 76(3) of the Civil Procedure Act but it is accepted, and counsel brought to my attention the fact, that the application is in fact under s 75 because legal proceedings have not yet been instituted.

2. The plaintiff is an 86-year-old man. In December 2018, he suffered what was thought to be a transient ischaemic attack (TIA) and went to the Shoalhaven District Memorial Hospital. Although by the time of his attendance his symptoms had resolved to some extent, the hospital correctly investigated the possibility that the plaintiff had had a stroke. Investigations confirmed a right middle cerebral artery occlusion which explained the earlier left-sided symptoms that were thought to have been a TIA. Unfortunately, incorrect information about the plaintiff’s symptoms was conveyed to the endovascular clot removal (ECR) team at Prince of Wales Hospital in Sydney. Consequently, no ECR was done at that time. The plaintiff’s condition deteriorated and the following day he had a major stroke by which time it was too late to perform an ECR. The plaintiff contended that had ECR been done earlier the major stroke would probably have been avoided.

3. Because both parties to this potential litigation have conducted themselves admirably and with goodwill, no formal court proceedings have been commenced. The defendant did not seek to dispute the breach of the duty of care and the plaintiff realised that even if legal liability could be established, there would be difficulties in the assessment of damages. The parties attended a mediation on 5 February 2021 and settled the matter by way of deed. The Deed of Release was annexure “A” to the affidavit of Courtenay Poulden sworn 24 February 2021. In order to consider the application under s 75, I was provided with an extremely helpful and confidential memorandum to the Court by counsel who appears today on behalf of the plaintiff. Much of the information that I have articulated earlier is derived from that document.

4. The defendant is not represented today but has indicated to the legal practitioners for the plaintiff that they are happy for the matter to proceed in their absence. The question is whether I am positively satisfied that the settlement is in the best interests of the plaintiff. Given the issues surrounding quantum of damages, which are largely based around the age of the plaintiff and the various ways his disabilities might be managed and for how long, there is a real question and the parties each accept that it would be extremely difficult and speculative to predict the likely outcome if the matter was litigated. By that time, they would no doubt have spent more money in the litigation than is worthwhile, given the circumstances of the case. Accordingly, I am affirmatively or positively satisfied that the settlement is in the best interests of the plaintiff and I propose to make the first order sought in the summons.

5. The second order sought in the summons is an order that the balance of the judgment money be paid to the plaintiff's tutor, Joshua Michael Rex, who is his son. That led Mr Hirsch, who appears for the plaintiff today, to take me carefully through the relevant legislation in order to be satisfied that the making of such an order was both legislatively lawful and appropriate. It is unnecessary in the circumstances to go through that helpful lesson in the law, but I do refer to s 77 of the Civil Procedure Act which provides the circumstances in which money can be paid to someone other than being paid into Court, noting in particular the provision in s 77(3)(b) which applies if a person is a protected person. If the person under legal incapacity is a “protected person” within the meaning of the Civil Procedure Act, then the Court may order that the money be paid to the manager of the protected person.

6. I was then taken through the Civil Procedure Act definitions in s 3 and in particular the definition of a person under a legal capacity, which includes a protected person within the meaning of the NSW Trustee and Guardian Act 2009 (NSW), the definition in s 74 of the Civil Procedure Act of a protected person and the definition of that term in s 38 of the NSW Trustee and Guardian Act. That is:

protected person means a person in respect of whom an order is in force under Part 4.2 or 4.3 or the Guardianship Act 1987 that the whole or any part of the person’s estate be subject to management under this Act.

7. I was then taken to annexure “A” in the affidavit of Joshua Rex sworn 23 February 2021, which is a document by the NSW Trustee and Guardian. It establishes that those provisions do apply. It also shows the authority provided to Mr Joshua Rex for the management and the requirement for him essentially to recount to the NSW Trustee and Guardian.

8. For those somewhat incoherent reasons, I accept that the second order should also be made and for those reasons I make orders in accordance with the relief claimed in the summons with some slight amendment to the section:

1. Settlement is approved in accordance with s 75 of the Civil Procedure Act 2005 (NSW).

2. Make an order that the defendant pay the balance of the judgment monies after the statutory deductions to Joshua Michael Rex pursuant to s 77(3) of the Civil Procedure Act 2005.

9. I indicate that the parties can notify my associate of any confidential matters that ought not to be published when the judgment is published on Caselaw.

**********

Decision last updated: 23 March 2021