Leonard v Northern NSW Local Health District

[2020] NSWSC 1051

Supreme Court

New South Wales

Medium Neutral Citation:	Leonard v Northern NSW Local Health District [2020] NSWSC 1051
Hearing dates:	31 July 2020
Date of orders:	17 August 2020
Decision date:	17 August 2020
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Settlement approved
Catchwords:	MEDICAL NEGLIGENCE – approval – whether proposed settlement in the best interests of the plaintiff – settlement approved
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Master Reef Leonard by his tutor Cathy Leonard (First Plaintiff) Northern NSW Local Health District (Defendant)
Representation:	Counsel: D Graham SC (First Plaintiff) J Sandford (Defendant) Solicitors: Maurice Blackburn (First Plaintiff) Hicksons (Defendant)
File Number(s):	2018/128873
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Reef Leonard sustained cerebral infarcts when he was 10 years old as the result of a cerebral venous sinus thrombosis that caused blockages in the supply of blood to parts of his brain. This has resulted in permanent injury. Mr Leonard’s CVS thrombosis was itself caused by a Methicillin-resistant staphylococcus aureus infection. Mr Leonard alleges that this infection and the development of his CVS thrombosis was diagnosed inappropriately late, leading to a delay in treatment which, on his case, caused or materially contributed to the permanent brain injury from which he now suffers. Mr Leonard’s current problems include intellectual, cognitive and emotional difficulties although he does not suffer from significant motor skills and in fact retains strong verbal abilities.

2. The defendant has denied liability. There is a significant dispute with respect to both breach of duty and causation. With respect to the first of these issues, Mr Leonard maintains that the defendant should have diagnosed his condition by no later than some time around midday on 4 March 2012 and that a CT scan with contrast at that time would have done so. A non-contrast CT scan on that day failed to detect Mr Leonard’s true condition. Mr Leonard alleges that collateral signs, such as his swollen eyes with bilateral dissimilarities, were classical indicators of the kind of blockage that he had which could not be detected with a non-contrast CT scan. Although the defendant has served some evidence to suggest that Mr Leonard’s CVS thrombus may not have been diagnosed even so, he contends that the presence of the eye symptoms points the other way.

3. With respect to the second issue, Mr Leonard alleges that the condition if recognised would have called for the prescription of vancomycin, and that his condition would therefore have been significantly ameliorated. The parties are at issue about whether or not a better outcome would or could have been achieved if this had occurred, having regard to the uncertain knowledge about precisely how far his infection had progressed. Some evidence suggests that administration of vancomycin as much as nine hours earlier than occurred in fact would not have made any difference to Mr Leonard’s progress or outcome.

4. I have been provided with a confidential advice on settlement dated 23 July 2020 prepared by Mr Graham SC and Mr Maybury of counsel. They recommend the proposed settlement having regard to the risk that even if Mr Leonard were to establish a breach of duty, the question of causation remains one upon which he could ultimately lose. The proposed settlement sum represents a discount upon the damages that Mr Leonard might possibly recover having regard to the prospect that he might ultimately fail completely.

5. I have been provided with expert medical reports from appropriately qualified specialists that deal in detail with the parties’ respective contentions. Having regard to those opinions, and to counsel’s carefully reasoned indorsement, I am of the view that the proposed settlement is in the best interests of Mr Leonard and I propose to approve it.

6. I note in passing that Mr Leonard originally sued by his tutor having regard to the fact that he was then still an infant. Even though he has since turned 18, his disabilities are such that he remains incapable of managing his own affairs. His litigious decisions remain in the care of his tutor.

7. In the circumstances I make the following orders:

1. I note that this matter has settled subject to approval in accordance with the terms of a Consent Judgment dated 7 July 2020 and signed by the legal representatives of the parties.

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

3. I make orders in accordance with paragraphs 1 to 10 inclusive of that Consent Judgment which for identification I will initial and place with the papers.

4. I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the judgment sum referred to in paragraph 1 of the Consent Judgment, less any authorised deductions for which it specifically or by necessary implication provides, be paid into Court for payment out thereafter to the NSW Trustee & Guardian or as the Court may upon application made pursuant to s 77(3) of the Act otherwise direct.

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Decision last updated: 20 August 2020