Meyer by his Tutor Lara Meyer v Western Sydney Local Health District

[2023] NSWSC 403

Supreme Court

New South Wales

Medium Neutral Citation:

Meyer by his Tutor Lara Meyer v Western Sydney Local Health District [2023] NSWSC 403

Hearing dates:

13 April 2023

Date of orders:

13 April 2023

Decision date:

13 April 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

The settlement approved. Pursuant to section 77(2) of the Civil Procedure Act 2005 (NSW), the Court directs that the balance of the judgment sum, less all authorised deductions, be paid into the Court subject to further orders of the Court and makes further orders at paragraph [23]

Catchwords:

CIVIL PROCEDURE – settlement approval request – allegation of medical negligence –plaintiff suffered a catastrophic injury and under legal incapacity – fair compromise – settlement approved – appointment of trustee to plaintiff’s estate

Legislation Cited:

Aged and Infirm Persons' Property Act 1940 (SA)

Civil Liability Act 1936 (SA), s 41.

Civil Liability Act 2002 (NSW), s 5O

Civil Procedure Act 2005 (NSW), s 76

Jurisdiction of Courts (Cross-vesting) Act 1987 (SA)

Category:

Principal judgment

Parties:

James Meyer (Plaintiff)
Western Sydney Local Health District (First Defendant)
Southern Adelaide Local Health Network Incorporated (Second Defendant)
South Eastern Sydney Local Health District (Third Defendant)

Representation:

Counsel:
D Campbell SC and R O’Keefe (Plaintiff)
J Downing SC (First and Third Defendant)

Solicitors:
Beston Macken McManis (Plaintiff)
Makinson d’Apice (First and Third Defendants)
Gilchrist Connell (Second Defendant)

File Number(s):

2019/397518

ex tempore JUDGMENT (revised)

1. This is a most tragic case. The plaintiff, Mr Meyer, is a young married man, the father of two young children, who is afflicted by type 1 diabetes mellitus, and, in or about 2016, that condition led to end stage renal disease and the need for dialysis. He was forced out of his previous work as a motor mechanic and car salesman and was placed upon a disability support pension. In what seemed like, no doubt at the time, a stroke of good fortune, he became eligible for a simultaneous pancreas and kidney (“SPK”) transplantation, and that procedure was, from the technical, surgical point of view, successfully carried out on 1 August 2018. Unfortunately, and that is an understatement, the deceased donor was infected with a parasitic roundworm referred to as strongyloides stercoralis, which is endemic in various parts of the world. Mr Meyer too became infected by this condition as a result of the transplantation.

2. Although the evidence that has been read before me establishes, as one would expect, that screening is carried out for potential infections (both in the donor and in the recipient) prior to a transplantation, the guidelines applied by the medical profession in Australia, as at August 2018, did not require screening for strongyloides stercoralis in the donor. The evidence seems to suggest that screening for that particular infection was carried out in the recipient, here, Mr Meyer, given no doubt the severe immuno-suppressive condition medically-induced in recipients as a necessary part of the transplantation procedures.

3. Although the local guidelines did not provide for that type of screening in the donor, it was required in the United States of America by their guidelines and in Europe under their guidelines. It also transpires that over the period from about 2016 to 2019 a major literature review in relation to the risks incidental to SPK transplantation was being carried out in Australia, the lead researcher being Dr Susan White.

4. The evidence that I have read may be capable of establishing at the trial that notwithstanding the guidelines, persons in positions of seniority in the first and third defendants' therapeutic operations were made aware of the position in America and Europe and were aware of the outcome of Dr White's research, at least in draft form, that proper therapeutic care required screening for strongyloides stercoralis in Australia. As part of the new guidelines issued in 2019 that requirement was adopted. It remains, however, that Mr Meyer was the first recorded case in Australia of contraction of the infection as a recipient of hard organs from an infected donor.

5. The consequences for Mr Meyer were catastrophic. The acquired infection was undetected notwithstanding him exhibiting symptoms, which I will simply say now with hindsight were undoubtedly related to the infection. He developed a catastrophic brain injury as a result of septic shock as a consequence of the infection of his blood with the parasite, which breached the blood-fluid barrier in his brain.

6. Mr Meyer is now left in a situation where it is not in dispute, as I understand the material, that he requires 24-hour care, seven days a week. He is significantly disabled, not only physically because of the brain injury but also in terms of his cognition at a level that must be distressing for his family. He has suffered a psychosis, which affects him intermittently as a result of his brain damage.

7. The issues in this case relate to liability particularly having regard to the provisions of s 5O Civil Liability Act2002 (NSW) and s 41 Civil Liability Act 1936 (SA). Notwithstanding the common ground in relation to the severity of Mr Meyer's disability, there are also significant damages issues. Those issues go beyond quibbling about what might or might not be necessary under various heads of damage but relate very largely to the question of Mr Meyer's likely survival time. There is strong disagreement between the respective experts in respect of that important topic.

8. The parties have engaged in mediation, which was unsuccessful, but since have continued negotiation and arrived at a settlement, which is proposed for my approval in accordance with the provisions of s 76 of the Civil Procedure Act2005 (NSW). There are three defendants, being the New South Wales defendants, who are the first and third defendants, who are the health authorities responsible for co-ordinating the provision of donor organs for transplant, in this case being the South Eastern Sydney Local Health District and the Western Sydney Local Health District responsible for the Westmead Hospital where the SPK transplantation was carried out.

9. The second defendant is the South Adelaide Local Health Network Incorporated. Mr Meyer and his family are normally resident in South Australia. When he became eligible for the transplant, the donor organs were available in this State, and he was transferred here to undergo the transplantation. When he returned to South Australia with the active symptoms of infection, he received ongoing care from the second defendant. The case against the second defendant is that it failed to detect the presence of the infection and had they done so, when a reasonable medical authority in its position ought to, there was sufficient time for medical intervention which in all likelihood would have successfully cured the infection before its catastrophic consequences emerged. These things are not uncontroversial and, as with the position of the New South Wales health authorities, there is a difference of opinion amongst highly qualified experts on each side of the record as to whether the case which I have outlined could be made good.

10. The sum proposed, if I may say so, is not an insignificant one totalling $X,YZ00,000 plus costs. The figure is inclusive of fund management which will be necessary and is subject to a number of deductions including a refund to the National Disability Insurance Authority (NDIA), potentially Medicare and Centrelink, and the best evidence available suggests that those deductions will total around $2 million more or less. There will also be a deduction for solicitor and client costs after agreement as to costs on a party and party basis is reached among the parties. So far as that latter matter is concerned, I am satisfied that, given that it is proposed that there would be a professional trustee appointed, the interests of Mr Meyer as between himself and his solicitors would be well protected.

11. The question for me is whether the proposal is in Mr Meyer's best interests. It is not for me to make any attempt by way of any sort of preliminary trial to try and predict the outcome of the litigation. It is sufficient, I think, for me to observe that there are real issues to be determined, especially in relation to liability and the aspect of quantum to which I have made reference.

12. I have had the benefit of a confidential advice prepared by Mr DR Campbell SC and Mr R O'Keefe of counsel, both of whom are extremely experienced and eminent practitioners in the field, and I have had close regard to the contents of that advice. The defendants are well represented by on the one hand Mr Downing SC and Mr Reid, solicitor. If I may say so Mr Downing is also a well-known expert in this field of liability law.

13. It is in the public interest that the parties to litigation reach an out of court settlement. The question for me is, is it in Mr Meyer's interest that I approve this settlement? It seems to me that what is proposed is a proper compromise of the litigation, having regard to the nature of the issues which I have outlined. It is also not insignificant for me to observe that there is an undoubted advantage in the accelerated receipt of the proceeds of a settlement which is in Mr Meyer's interests. Litigation of this type is complex; it is attended by uncertainty of outcome; and assuming that Mr Meyer is successful at first instance, the prospect of an appeal cannot be gainsaid.

14. For all those reasons, I am of the view that I should approve the settlement and I will do so in accordance with the provisions of s 76 of the Act, to which I have made reference.

15. It is proposed that I should make an order for payment of the proceeds of the settlement to a registered trustee company, Australian Executor Trustees Ltd (AET), which is well known. I have received in evidence an affidavit of a Mr Tim Grant-Allan of AET affirmed on 5 April 2023. Mr Grant-Allan is the Senior Relationship Manager Compensation Trusts, and he informs me that AET is prepared to act as manager of the plaintiff's estate. In terms of investment strategies and the like, it is proposed that they would take advice in consultation from an organisation referred to as Aeran Pty Ltd (Aeran) and a Ms Jane Campbell, a principal of that organisation and a financial adviser, has consulted with Mr Grant-Allan; one of his colleagues, a Mr O'Neill, and Mrs Meyer, the tutor, to discuss the proposal.

16. I am satisfied that having regard to the content of Mr Grant-Allan's affidavit that AET and Aeran are appropriate trustees and managers of the proceeds of the settlement and but for one thing I would be persuaded that I should make the orders sought under s 77(3) of the Act. I have had regard to what Mr Grant-Allan has said about the fees which would be payable in respect of the management of the funds and the development of an appropriate financial strategy, and it seems to me that both are reasonable in all the circumstances.

17. The matter which has caused me to stay my hand in relation to making an order for payment direct to AET is that Mr Reid, who appears as agent for the South Australian Crown Solicitor's Office, has invoked the provisions of s 8A of the Aged and Infirm Persons' Property Act 1940 (SA) for the purpose of me making an order under that Act, referred to as a protection order under the provisions of s 8 and s 8A,. Mr Reid has handed up a proposed series of orders which he submits I should make bringing Mr Meyer under the provisions of the South Australian legislation and subjecting AET to additional conditions pursuant to that legislation, which Mr Grant-Allan has not had the opportunity of addressing. He has not had that opportunity because these orders were sought late; Mr Reid told me, yesterday afternoon. It is simply the case that neither Mr Campbell nor Mr Downing have had the opportunity to consider the matter appropriately. There are also issues about whether the client, for whom Mr Reid directly appears - as I have said, the South Adelaide Local Health Network - is a prescribed person for the purpose of the Act having standing to make an application for the order. There are issues about whether it would be appropriate to make such an order covering the contribution made by the New South Wales defendants, which, if I may say so, are proposing to pay the lion's share of the settlement of $A,B00,000, as opposed to the South Australian defendant’s $C million. These are all matters which it would be inappropriate for me to deal with on the run given that Mr Campbell and Mr Downing oppose the making of the orders in any event.

18. I am provisionally satisfied that I would have the power to consider the application and, if appropriate, make the orders under Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) but even that is a question which may need elucidation.

19. As I have said, it is inappropriate for me to deal with this application on the run but as it is an application seriously made on behalf of an agency of the Government of another State, neither should I dismiss it out of hand summarily. I am informed by Mr Reid that the orders sought in relation to the matter are conventionally made in personal injuries litigation of this type in South Australia.

20. After discussion with counsel and Mr Reid, what I have decided to do is to approve the settlement, as I have indicated, and to make the orders contained in version A of the proposed orders. Version B contains the additional orders sought by Mr Reid. So far as version A is concerned, it will be necessary to amend order 10 to provide for an order pursuant to s 77(2) of the Act that the balance of the judgment sum, less all authorised deductions, be paid into Court pending further order of the Court.

21. As discussed with counsel, it is my intention, subject to confirmation of the availability of the date, to list the matter for hearing of the second defendant's application on 4 May 2023 at 2 pm. The matter ought to be capable of being dealt with at that time. There will be no delay in the payment out of the funds to the trustee as appropriate given that there are deductions to be made and to be paid to government instrumentalities, which in the experience of the Court always takes a little time.

22. In the meantime, it is appropriate that Mr Reid or those instructing him file a motion with supporting evidence in the proceedings, which can be made returnable on 4 May, together with written submissions setting out the grounds upon which the second defendant claims to be entitled to seek the orders sought.

1. I will direct that the solicitors for the first and second defendants forward in soft and hard copy an amended form of proposed order in the form of version A but as amended in accordance with the indication I have just given with a view to me making those orders in chambers today without the need for any further appearance by the parties.

2. Direct that the second defendant file and serve a notice of motion, affidavit in support and written submissions, stating the grounds upon which the orders are sought, by close of business on 21 April 2023.

3. Direct the plaintiff to file any supplementary affidavit by or on behalf of an officer of AET by close of business on 1 May 2023.

4. List the matter for hearing of the motion before me at 2 pm on 4 May 2023.

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Decision last updated: 19 April 2023