Koby Morrison BHT Samantha Brown v Illawarra Shoalhaven Local Health District
[2016] NSWSC 1500
•24 October 2016
Supreme Court
New South Wales
Medium Neutral Citation: Koby Morrison BHT Samantha Brown & Anor v Illawarra Shoalhaven Local Health District & Ors [2016] NSWSC 1500 Hearing dates: 5 October 2016 Date of orders: 24 October 2016 Decision date: 24 October 2016 Jurisdiction: Common Law Before: Hall J Decision: The proposed settlement between the first plaintiff, Koby Morrison by his tutor Samantha Brown, and the fifth defendant, Dr Ian Tait, is approved.
Category: Principal judgment Parties: Koby Morrison BHT Samantha Brown (First Plaintiff)
Samantha Brown (Second Plaintiff)
Darren Morrison (Third Plaintiff)
Illawarra Shoalhaven Local Health District (First Defendant)
State of New South Wales (Second Defendant)
Dr Meike Flore (Third Defendant)
Dr Brett Thomson (Fourth Defendant)
Dr Ian Tait (Fifth Defendant)Representation: Counsel:
Solicitors:
Mr K Connor (Plaintiffs)
Shine Lawyers (Plaintiffs)
Hickson Lawyers (First to Fourth Defendants)
Tress Cox (Fifth Defendant)
File Number(s): 2014/194987
Judgment
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In these proceedings an application has been made on behalf of the plaintiff for the Court’s approval of a settlement between the first plaintiff, who is presently four years of age, and the fifth defendant, Dr Ian Tait.
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This application came before me in the Duty Judge list on 5 October 2016. On that occasion Dr K Connor SC appeared on behalf of the plaintiff, Ms C Watson-Kyme appeared on behalf of the first to fourth defendants and Ms Morgan appeared on behalf of the fifth defendant.
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The proposed settlement is by way of compromise of the proceedings between the first plaintiff and the fifth defendant. The other defendants are not party to any compromise agreement.
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On 5 October 2016 by reason of competing duty judge commitments, I was unable to deal with the matter on that date. Accordingly, I proposed that I would receive the material in support of the application and consider it in chambers. If I determined that approval should be given to the settlement, then the parties accepted that the appropriate order could be made in chambers: T 3.
Background
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The first plaintiff, Koby Morrison, was born at 1:06am on 3 July 2011. The second plaintiff is the first plaintiff’s mother and tutor for the purpose of the proceedings. The third plaintiff is the first plaintiff’s father.
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The proceedings were originally brought by way of Statement of Claim filed on 30 June 2014. The Statement of Claim join as defendants the following:
First Defendant: Illawarra Shoalhaven Local Health District
Second Defendant: State of New South Wales
Third Defendant: Dr Meike Flore
Fourth Defendant: Dr Brett Thomson
Fifth Defendant: Dr Ian Tait.
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The claim as formulated in the Statement of Claim concerned the antenatal management and confinement of Samantha Brown, the first plaintiff’s mother, and the management of the first plaintiff after his birth before his transfer to Canberra Hospital some six hours after his birth.
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In the Statement of Claim it is alleged that each of the first to fourth defendants owed the first plaintiff a duty to exercise reasonable care and skill in the provision of information and advice to the second and third plaintiffs and in the management of the second plaintiff during her pregnancy and labour and the first plaintiff’s delivery: at [59].
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On this matter coming before me on 5 October 2016 Mr Connor referred to the fact that the first plaintiff was born by caesarean section at 1:06am. The plaintiffs’ case, he explained, against the defendants, other than the fifth defendant, concerns the delay in the caesarean section being performed. The plaintiffs’ case is based on the premise that the caesarean section should have been performed at 10.30pm the previous evening. Accordingly the plaintiffs’ case is based on the premise that the last 29 minutes or so, immediately prior to birth at 1.06am, there was acute total asphyxia or hypoxia of the baby. Dr Tait’s only involvement was as an anaesthetist for the caesarean section. On that basis, he was not involved in the antenatal aspect or stage but was only involved in post-operative management. Mr Connor noted that the baby was heated rather than cooled at the hospital but in the judgment of counsel, notwithstanding that matter, it was best that the fifth defendant be let out of the proceedings, there being no particular evidence establishing any breach of duty causing injury or damage.
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In support of the application, I have considered the following material:
Affidavit of John Croce Palmieri, solicitor, affirmed 23 October 2015. Attached to that affidavit were a number of annexures or exhibits;
Affidavit of John Croce Palmieri, affirmed 30 September 2016. Annexed to that affidavit was a copy of the Professional Standards Committee Inquiry concerning Dr Brett Thomson; and
The Joint Opinion of Kevin Connor SC and Richard O’Keefe of counsel dated 26 September 2016.
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In Mr Palmieri’s first affidavit, Mr Palmieri stated at [11] that based upon the expert medical evidence obtained to date, there was limited utility in pursuing the fifth defendant for damages for any harm caused to the first plaintiff arising from delayed cooling prior to his transfer to Canberra Hospital after birth.
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In para [12] Mr Palmieri stated that he had recommended to Ms Brown that the proceedings against the fifth defendant be resolved by discontinuing them with no order as to costs. Ms Brown gave him instructions to seek the Court’s approval to resolve the proceedings against Dr Tait on the terms set out in the Consent Judgment signed by the fifth plaintiff on 9 September 2015 and signed by Mr Palmieri on 22 October 2015.
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In the Joint Opinion of Messrs Connor and O’Keefe, it was stated:
“5. In our opinion the settlement of the infant plaintiff’s claim against Dr Tait on his basis is appropriate in all the circumstances.”
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Mr Connor stated at [7] that the relevant circumstances are set out in summary form in the Professional Standards Committee Inquiry in relation to Dr Thomson. He also noted that a report had been obtained from Dr Michael O’Connor, obstetrician, dated 23 July 2015 in which his criticisms were directed towards Dr Thomson, Dr Flore and midwives at the Milton Hospital who were involved in the management of Ms Brown’s labour.
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It was noted at [9] of the Joint Opinion that the plaintiff’s principal case concerned the management of Ms Brown’s labour prior to the delivery of the plaintiff by caesarean section. As noted above, Dr Tait was not involved in the obstetric management of Ms Brown, having been the GP anaesthetist for the anaesthetic for Ms Brown for the caesarean section.
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The Joint Opinion further notes at [10] that Dr Thomson has admitted that he had breached his duty of care the first plaintiff in a number of significant respects.
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It is also noted that no cross-claim has been filed by any of the other defendants against Dr Tait.
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The Joint Opinion at [14] records that the claim against Dr Tait was confined to the allegations set out at [8] of the Statement of Claim.
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At [16] of the Joint Opinion reference is made to an expert report from Professor Michael Ditchfield, paediatric neurologist, dated 30 August 2015 in which he confirmed that the plaintiff sustained a hypoxic insult to the brain, that most likely occurred at the time of delivery.
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I have closely considered all the other matters set out in the helpful Joint Opinion.
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Having regard to the nature of the claim, the affidavit evidence of Mr Palmieri, and the Joint Opinion, I am satisfied that the settlement as proposed is a proper one and should be approved. Accordingly I approve the proposed settlement between the first plaintiff and Dr Tait.
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Decision last updated: 24 October 2016
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