Halle Garth by her next friend Tanya Garth v Hunter New England Local Health District

[2022] NSWSC 1308

Supreme Court

New South Wales

Medium Neutral Citation:

Halle Garth by her next friend Tanya Garth v Hunter New England Local Health District [2022] NSWSC 1308

Hearing dates:

23 September 2022

Date of orders:

23 September 2022

Decision date:

23 September 2022

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) I note the matter is settled subject to approval in accordance with the terms of the Consent Judgment signed by the legal representatives of the parties on 21 July 2022.

(2) I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).

(3) I make orders in accordance with pars 1 to 9 inclusive of the Consent Judgment, which for identification purposes I will initial, date today’s date, and place with the court papers.

(4) I enter judgment for the plaintiff in the sum referred to in par 1 of the Consent Judgment plus costs as agreed or assessed.

(5) I order that the judgment sum referred to in par 1 of the Consent Judgment be paid to the NSW Trustee & Guardian to be held on trust for Halle Garth until she attains her majority

Catchwords:

CIVIL PROCEDURE – settlement approval – proceedings brought by person under legal incapacity – Court approval

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Category:

Procedural rulings

Parties:

Halle Garth by her next friend Tanya Garth (Plaintiff)
Hunter New England Local Health District (Defendant)

Representation:

Counsel:
D Toomey SC / R Lynch (Plaintiff)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2020/00191772

Publication restriction:

Nil

revised extempore Judgment

1. Halle Garth is 9 years old. Her father died on 13 May 2019 at Maitland Hospital of an undiagnosed appendicitis. He was misdiagnosed having presented on 11 May 2019 and unfortunately treatment that could have been given was not given. Dr Raftos’s report explains those matters. Appropriately, breach of duty of care was admitted by the defendant.

2. I have been assisted by an affidavit from Halle’s mother, Tanya, which sets out what she has observed about Halle’s difficulties in the wake of the death of her much loved father. Tanya also deposes to the advice she has been given and her understanding and belief as to why that settlement offer made for Halle is an appropriate one and one that is in Halle’s interests to accept.

3. There is an affidavit of a solicitor, Emma Fitzpatrick, which appends relevant medical evidence regarding Halle as well as some school reports so that I have a better understanding of the effect of these matters upon Halle.

4. There is a confidential advice from Mr Toomey SC and Mr Lynch which sets out the reasons why they recommend the settlement as an appropriate one.

5. The psychologists who have assessed Halle take the view that she has an adjustment disorder with anxiety associated with the loss of her father, and there is a suggestion that she would benefit from some treatment as she gets older.

6. It seems to me the proposed settlement is entirely appropriate and I approve it. I make the following orders:

1. I note the matter is settled subject to approval in accordance with the terms of the consent judgment signed by the legal representatives of the parties on 21 July 2022.

2. I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).

3. I make orders in accordance with para 1 - 9 inclusive of the consent judgment, which for identification purposes I will initial, date today’s date, and place with the court papers.

4. I enter judgment for the plaintiff in the sum referred to in par 1 of the consent judgment plus costs as agreed or assessed.

5. I order that the judgment sum referred to in par 1 of the consent judgment be paid to the NSW Trustee & Guardian to be held on trust for Halle Garth until she attains her majority.

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Decision last updated: 28 September 2022