Jake Garth by his next friend Tanya Garth v Hunter New England Local Health District

[2022] NSWSC 1307

Supreme Court

New South Wales

Medium Neutral Citation:

Jake Garth by his next friend Tanya Garth v Hunter New England Local Health District [2022] NSWSC 1307

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

(4) I note pars 2, 3, 4, 5, 6, 7, 8 and 9 of the Consent Judgment.

(5) I order in accordance with s 77(2) of the Civil Procedure Act 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 Jake until he attains his majority.

(6) I note I will sign the Consent Judgment for identification purposes and date it today’s date.

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:

Jake Garth by his 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):

2020/00191780

Publication restriction:

Nil

revised extempore Judgment

1. Jake Garth is 16 years old. His father died on 13 May 2019 after a misdiagnosis of a presenting appendicitis on 11 May 2019. The defendant Local Health District appropriately admitted breach of duty of care and Jake’s claim has been settled. There is an application before me today to consider whether the settlement should be approved as a settlement in his best interests.

2. Jake has been diagnosed with persistent complex bereavement disorder or, alternatively, adjustment disorder with depressed mood and anxiety.

3. Jake’s mother’s affidavit has outlined what she has observed about his emotional disturbance since his much loved father’s death, his difficulty in resuming school, and associated mood disturbance and separation anxiety.

4. The psychologist’s reports have assisted me in understanding the nature of Jake’s difficulties. Mr Glancey, Psychologist, at least thought that there may well be a major depressive disorder. The terminology is not critical, but an appropriate sum that is in Jake’s best interests reflective of appropriate damages is the Court’s concern today. Whilst Jake has not had any active treatment to date, there is a suggestion he may well benefit from some treatment at an appropriate time.

5. I was assisted by the affidavit of Jake’s mother, as well as the affidavit of the solicitor, Ms Fitzpatrick, in outlining the relevant matters and providing the reports for me to read and understand. I was also greatly assisted by the analysis and observations contained in the confidential advice of Mr Toomey SC and Mr Lynch, who have recommended the settlement as appropriate.

6. I agree the settlement is appropriate and I am of the view that the settlement is in the best interests of Jake. Accordingly, I make the following orders:

1. I note the matter has 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 enter judgment for the plaintiff in the sum referred to in par 1 of the Consent Judgment plus costs as agreed or assessed.

4. I note pars 2, 3, 4, 5, 6, 7, 8 and 9 of the Consent Judgment.

5. I order in accordance with s 77(2) of the Civil Procedure Act 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 Jake until he attains his majority.

6. I note I will sign the Consent Judgment for identification purposes and date it today’s date.

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Decision last updated: 28 September 2022