Joyce Edelman by her tutor Anthony Edelman v Martin Weltman

[2018] NSWSC 813

Supreme Court

New South Wales

Medium Neutral Citation:	Joyce Edelman by her tutor Anthony Edelman v Martin Weltman [2018] NSWSC 813
Hearing dates:	24 May 2018
Date of orders:	24 May 2018
Decision date:	24 May 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I direct that the seal of the court may be affixed to the form of the consent judgment.
Catchwords:	NEGLIGENCE – medical negligence - whether a compromise reached between the parties ought to be approved in accordance with the provisions of s 76 of the Civil Procedure Act 2005 (NSW) - proceedings by tutor - physical health issues arising from stroke - satisfied real issues to be tried - quantification of damages - compromise appropriate - plaintiff’s best interests - settlement approved
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 76
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Joyce Edelman by her tutor Anthony Edelman (Plaintiff) Martin Weltman (Defendant)
Representation:	Counsel: R Sheldon SC with S Walsh (Plaintiff) M Conry (Defendant)   Solicitors:
File Number(s):	2016/233487

EX TEMPORE Judgment

1. This medical negligence case is set down for trial as a contested matter on 26 November 2018. It has come before me today as Duty Judge to consider whether a compromise reached between the parties ought to be approved in accordance with the provisions of s 76 of the Civil Procedure Act 2005 (NSW) (“Civil Procedure Act”).

2. The need for approval is that the plaintiff has proceeded by a tutor, who happens to be her son, following a stroke which is the subject of the claim. I must say, although having read the medical evidence, the plaintiff’s largest problem seems to be physical, given the hemiparesis she suffers as a consequence of the stroke. It does also seem from the report of Dr Peter Rowlings, a neuropsychologist, that there are some cognitive effects of the stroke which make it appropriate for her to have assistance in financial management and in the management of the litigation.

3. I have had the benefit of reading the affidavit of the tutor, Mr Anthony Edelman and also of the plaintiff’s solicitor, Ms Larissa Atkinson, and I am satisfied that the tutor fully understands the legal effect of the proposed settlement.

4. I am also satisfied from Ms Atkinson’s affidavit of the net amount of the proceeds of the settlement available to be invested on behalf of the plaintiff. At this stage there is no proposal for payment out, either to the New South Wales Trustee and Guardian or to a private trustee company or manager.

5. I have also had the great benefit of the confidential opinion of Mr Sheldon, learned Senior Counsel, a very experienced advocate in this field. I will simply say that the plaintiff’s claim in damages relates to the consequences of a stroke which occurred the day before her appointment to undergo a repeat colonoscopy.

6. The nature of the cause of action against the medical practitioner is that the plaintiff, who for many years had been diagnosed as suffering from atrial fibrillation, was advised by the practitioner that she should cease her anti‑coagulant medication seven days prior to undergoing the procedure. This was because of the risk of bleeding if any lesions needed to be removed during the course of the colonoscopy.

7. I am satisfied from the material I have read that there are real issues to be tried in relation to the liability questions. It seems that there are issues as to primary facts about what advice was given and differences of medical opinion between the experts as to the content of the duty of the practitioner in the particular circumstances of the case.

8. I am also satisfied that there are issues in relation to the quantification of damages, given, if I may say with respect, the plaintiff’s age of 76 years, other health issues, and the current circumstances of being a resident of a nursing home where all necessary care is provided.

9. For all these reasons I am satisfied that the case is one appropriate for compromise and I am also of the view that the settlement arrived at between the parties following mediation is one which is in the plaintiff’s best interests.

10. Accordingly, I will approve the settlement in accordance with the provisions of s 76 of the Civil Procedure Act.

11. I direct that the advice of Mr Sheldon be placed in an envelope, sealed and marked not to be opened except on order of a judge of the Court. I make orders in accordance with the form of consent orders signed by the solicitor for the parties and by me. I direct that the seal of the court may be affixed to the form of the consent judgment.

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Decision last updated: 01 June 2018