Harrison Riches by his tutor Corrina Jayne Brenton v Western NSW Local Health District
[2017] NSWSC 1130
•24 August 2017
Supreme Court
New South Wales
Medium Neutral Citation: Harrison Riches by his tutor Corrina Jayne Brenton v Western NSW Local Health District [2017] NSWSC 1130 Hearing dates: 23 August 2017 Decision date: 24 August 2017 Jurisdiction: Common Law Before: Button J Decision: 1. Pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW) the Court approves the settlement reached on behalf of the plaintiff with the defendant and makes the orders set out in the Consent Judgment executed by the solicitors for the parties, annexed to the Short Minutes of Order dated 24 August 2017.
2. Pursuant to s 77 of the Civil Procedure Act 2005 (NSW) the defendant is to pay the sum of XXX (being XXX less deductions of XXX to Medicare and XXX to Cerebral Palsy Alliance) into this Court pending further orders of the Protective Division.
3. The defendant to pay party / party costs in accordance with paragraph one of the Consent Judgment, as agreed in the sum of XXX.
4. The defendant is excused from further attendance in the proceedings.Catchwords: CIVIL – PRACTICE AND PROCEDURE – application for approval of settlement – personal injury proceedings commenced on behalf of a person under legal incapacity – allegation of negligence against medical staff with respect to birth of plaintiff - whether proposed settlement is in the interests of the plaintiff – settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76, 77 Category: Principal judgment Parties: Harrison Riches by his tutor Corrina Jayne Brenton (plaintiff)
Western NSW Local Health District (defendant)Representation: Counsel:
R. O’Keefe (plaintiff)
S. Woods (defendant)
File Number(s): 2014/00051031 Publication restriction: With regard to the quantum of the settlement sum.
Judgment
Background
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This matter came before me in the Duty List yesterday morning for approval of a settlement, pursuant to s 76 of the Civil Procedure Act 2005 (NSW). In my respectful opinion, my task was made much easier by the cogent and comprehensive submissions of counsel for the plaintiff.
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The very sad background of the matter may be shortly stated. Young Harrison Riches, now aged 7 years, was born on 31 March 2010 at Dubbo Base Hospital. To express his legal claim in concise terms that a layperson could understand, it is that he developed sepsis (blood poisoning) soon after birth, possibly as a result of the accidental ingestion of faecal matter. That led in turn to meningitis, which has led to cerebral palsy, in turn leading to profound and permanent physical and intellectual disabilities.
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His claim is that, despite the fact that he was in distress at birth and cared for in a special ward at the hospital, there were further signs that something was going wrong, in the form of him rolling his eyes and his body stiffening. The assertion is that the nursing staff should have brought those aspects of his presentation to the attention of the doctors; if that had occurred, and if investigation of his spinal fluid had taken place at an early stage, it is alleged that the meningitis would have been detected and treated earlier, and the very grave disabilities from which he now suffers would, in all likelihood, not have occurred.
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An amended statement of claim filed on 2 December 2016, along with voluminous documentary expert opinion evidence placed before me on the application, is the basis for my summary above.
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A mediation took place reasonably recently, and the matter was resolved between the parties (subject to approval) as a result of that process.
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I received an open affidavit from the tutor of the plaintiff, his mother. She has expressed her contentment with the settlement proposed, and a number of concerns that she has about the matter being fully litigated. There is not the slightest evidence to suggest that she is motivated by anything other than love for her son, and a concern that he receive appropriate care for the rest of his life.
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A comprehensive confidential memorandum of advice from counsel for the plaintiff was also placed before me, with the consent of counsel for the defendant. Of course, I shall not descend into a detailed analysis of that document; suffice to say it sets out a number of the forensic difficulties that could mean that the complete claim advanced by the plaintiff would not be realised. The following were discussed in open court by counsel for the plaintiff, and accordingly I have no inhibition in recounting them.
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The first was the contestability of the life expectancy of the plaintiff, which is relevant to a number of heads of damages. Counsel explained that the prediction has recently become arguably more adverse, leading to caution on the part of the legal team of the plaintiff and his tutor.
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The second is the question of causation, in that at least one of the experts qualified by the legal team of the plaintiff has expressed the opinion that, even if the care received by the plaintiff had been optimal, still and all there may have been a significant degree of brain damage occasioned to him, as a result of meningitis that would have developed in any event. All of that, it was said, has led to a degree of appropriate caution in pursuit of the claim, which has informed the decision to settle.
Determination
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Turning to my determination, the simple fact is that the process of sitting in judgment (with the benefit of hindsight) about the professional actions of others always calls for an evaluative judgment, about which minds may legitimately differ, and with regard to which a claim may not be fully successful, or indeed successful at all.
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Speaking more generally, my own experience as counsel and judge is that the outcome of litigation can never be predicted with certainty, and that a cautious approach is often called for as a result.
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And without descending to confidential questions of quantum, the settlement sum is a very large percentage of the claim of the plaintiff at its highest.
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I am fortified in my confidence in the correctness of the approach adopted on behalf of the plaintiff by the fact that his solicitor is an accredited specialist in the area of personal injury law, and his counsel is patently learned and experienced in that area.
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Separately, counsel for the plaintiff took me through the detail of all of the orders that I am being asked to make as part of the approval. He has satisfied me that all of them are entirely orthodox, and founded in justice and common sense.
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As well as that, I record that a settlement with regard to legal costs has been arrived at, and I am satisfied that it does not inappropriately “eat into” the amount that will ultimately be available to the plaintiff.
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The test is simply whether I am satisfied that the settlement is in the best interests of the plaintiff. In short, I am soundly satisfied that that test has been made out, and that I should approve the settlement that was placed before me.
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Turning to two ancillary matters, as was discussed at the hearing, I am content to remove the precise quantum from the copy of this judgment that will be published on Caselaw. Neither party sought any greater confidentiality than that.
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Secondly, it was explained that the settlement sum is to be paid into court in the first instance; thereafter, application will be made by the solicitor for the plaintiff to a judge of the Protective Division of this Court for the appointment of a financial manager.
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It is for the foregoing reasons that I approve the settlement, and am content to make all of the orders that were placed before me yesterday morning.
Orders
I make the following orders:
1. Pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW) the Court approves the settlement reached on behalf of the plaintiff with the defendant and makes the orders set out in the Consent Judgment executed by the solicitors for the parties, annexed to the Short Minutes of Order dated 24 August 2017.
2. Pursuant to s 77 of the Civil Procedure Act 2005 (NSW) the defendant is to pay the sum of XXX (being XXX less deductions of XXX to Medicare and XXX to Cerebral Palsy Alliance) into this Court pending further orders of the Protective Division.
3. The defendant to pay party / party costs in accordance with paragraph one of the Consent Judgment, as agreed in the sum of XXX.
4. The defendant is excused from further attendance in the proceedings.
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Decision last updated: 05 September 2017
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