Isabelle Cavanough by her tutor Anthony Cavanough v Sydney Local Health District

[2024] NSWSC 542

Supreme Court

New South Wales

Medium Neutral Citation:

Isabelle Cavanough by her tutor Anthony Cavanough v Sydney Local Health District [2024] NSWSC 542

Hearing dates:

26 April 2024

Decision date:

17 May 2024

Jurisdiction:

Common Law

Before:

Button J

Decision:

Settlement approved

Catchwords:

CIVIL PROCEDURE – application for approval of proposed settlement – professional negligence – proceedings commenced on behalf of eight-year-old plaintiff – alleged negligence in misdiagnosing the plaintiff’s severe pneumococcal meningitis – whether proposed settlement is beneficial to the interests of the plaintiff – settlement approved

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 76

Civil Liability Act 2005 (NSW)

Category:

Principal judgment

Parties:

Isabelle Cavanough by her tutor Anthony Cavanough (Plaintiff)
Sydney Local Health District (Defendant)

Representation:

Counsel:
D Graham SC (Plaintiff)
J Downing SC (Defendant)

Solicitors:
Maurice Blackburn Lawyers (Plaintiff)
Hicksons (Defendant)

File Number(s):

2018/143067

Publication restriction:

Nil

JUDGMENT

1. This application for approval of the settlement of a professional negligence claim pursuant to s 76 of the Civil Procedure Act 2005 (NSW) came before me in the Duty List. Despite the inevitable time pressure, I received very helpful written and oral submissions from both parties, along with a confidential opinion of senior counsel for the plaintiff that was detailed, comprehensive, and reflective. For obvious reasons, I shall not discuss the latter in any detail.

2. The events giving rise to the claim may be sketched as follows. In 2016, the plaintiff, then 16 months of age, became unwell while at daycare. She was taken by her mother to see a general practitioner, who commenced treating her for what was understood to be an ear infection. Two days later, the plaintiff, now presenting with further symptoms, was referred to hospital. Having arrived at an emergency department, she was admitted, and treated initially for viral gastroenteritis. In fact, she was suffering from the bacterial infection meningitis, which may be understood by laypersons as an infection to the lining of the brain. The ultimate result of that was a number of significant cognitive impairments. At the same time, she suffered a kidney injury significant enough to require dialysis, and perhaps kidney transplant in the future.

3. The plaintiff is now eight years of age, and she appears by way of her tutor, her father. The family, I was told, now live in the United Kingdom.

4. In a nutshell, the claim in negligence is founded on the proposition that the treating doctors breached their duty of care by failing to consider meningitis at a stage earlier than they did, and that failure led to very significant injuries, which should lead to very significant damages.

5. It was explained by both leading counsel in open court that many aspects of the claim are contestable, as follows.

6. First, many medical experts qualified by the defendant express the opinion that the treatment afforded to the plaintiff by the defendant was, in fact, perfectly reasonable, and the medical professionals did not breach their duty of care at all. This resistance to the claim was the thesis that the symptoms exhibited by the plaintiff did not call for an investigation of meningitis earlier than in fact occurred.

7. Secondly and contingently, even if breach of duty were established, the operative infection was developing very quickly, with the result that, even if the correct diagnosis had been made and acted upon at the earliest stage, treatment may have been ineffectual, with the result that the injuries suffered by the plaintiff would have occurred in any event.

8. Thirdly and further contingently, even if that were not the case, as it happened the particular bacterium was resistant to broad spectrum antibiotics, which would in all likelihood have been the first treatment. It would only have been at a later stage that the treating medical professionals would have realised that, and lit upon the specific antibiotic that would have been effective with regard to this particular bacterium. In other words, yet again, even if putative optimal care had been adopted, the plaintiff may well have suffered the injuries in question in any event.

9. Fourthly and yet further contingently, contrary to what a layperson might think about the notable temporal coincidence between the meningitis and the kidney condition, it is quite arguable that the latter developed independently. And the condition underpinning the latter could even have caused the cognitive impairments from which the plaintiff suffers without them being the result of the meningitis.

10. In other words, the defendant could argue that, even if the plaintiff were to succeed in establishing that there were failings on the part of the medical professionals regarding the meningitis, it was perfectly possible that the kidney condition might have developed independently, and its consequences may well have “swamped” any harm caused by the brain infection.

11. In short: it was explained that there is not only a very real issue about breach of duty of care, but also very real issues about causation in this case.

12. Separately, I was given to understand that, even if the plaintiff, of course bearing the onus, succeeded in overcoming all of those forensic obstacles, there were others pertaining to damages.

13. One is the unavoidable difficulty in predicting the future course over decades of the development of life of a young person.

14. Another is the issue of “normative parenting”, whereby the trial judge would need to reflect on the care that devoted, loving parents would have given to the plaintiff in any event.

15. A third is the fact that the plaintiff resides in a country in which some pertinent medical treatment is not only available free of charge, but some of it is available only on that basis. Senior counsel for the plaintiff accepted that he would face something of a forensic hurdle in succeeding in claiming for damages with regard to medical treatment that not only could be free, but indeed, other things being equal, must be free.

16. A fourth foreshadowed issue regarding damages was the question of the degree to which very expensive, medically qualified care would need to be available to the plaintiff, as opposed to something lesser.

17. Fifthly and finally, senior counsel explained that there remain some contentious legal questions pertaining to particular aspects of compensation by way of damages for personal injury.

Determination

18. Turning to my determination, and without descending to a level of inappropriate detail, there is no doubt that the settlement sum is substantially less than that originally claimed by the plaintiff. But the multitude of issues that the plaintiff must confront before succeeding in a claim against the defendant makes a cautious approach soundly appropriate, in my opinion.

19. To expand on that: I am familiar with the regime whereby the plaintiff must pass over a number of statutory “hurdles” in the Civil Liability Act 2005 (NSW) in order to succeed, and failure at only one can mean failure of the entire claim.

20. Relatedly, I am well experienced as counsel and judge with the phenomenon whereby a very significant claim can fail completely, leaving an unsuccessful plaintiff with nothing at all, except a very substantial adverse costs order.

21. More generally, I am also well experienced in the difference between how a criminal allegation or a civil claim appears based on a bundle of papers, and how it appears when actually litigated in a courtroom based upon the giving of oral evidence, and, surely most importantly, cross-examination.

22. Furthermore, it was clear from the written materials and the entirety of the submissions placed before me by the legal team for the plaintiff that its members are experts in legal and evidential aspects of claims of this kind. I believe that I am entitled to place significant weight on their forensic judgment.

23. Finally, there is not the slightest suggestion of the tutor failing to advance the best interests of the plaintiff, whether intentionally or negligently.

24. In summary then: a cautious approach is being taken on behalf of the plaintiff, but I am satisfied that it is perfectly appropriate, speaking generally of litigation and specifically of this litigation. For that reason, I shall make orders approving the settlement, including ancillary orders that both parties assured me were orthodox and appropriate.

25. As a postscript, parts of this judgment have been anonymised in order to protect the privacy of a child coming into a significant sum of money.

26. I make the following orders:

1. Note that the First Plaintiff’s claim against the defendant has settled subject to approval, in accordance with the terms of a Consent Judgment dated 8 April 2024 and signed by the legal representatives of the parties.

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

3. Make orders in accordance with paragraphs 1 to 13 inclusive of the Consent Judgment dated 8 April 2024 which for further identification I will initial, date with today’s date and place with the papers.

4. Order in accordance with s 77(2) of the Civil Procedure Act 2005 that the judgment sum referred to in paragraph 3 of the Consent Judgment less the deductions referred to therein be paid into Court, subject to further order.

5. The confidential material placed before the Court on behalf of the plaintiff will be retained by the Court in an envelope marked “only to be opened by order of a Judge”.

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Decision last updated: 21 May 2024