Neylan (bht Neylan) v Crookes

[2017] NSWSC 1460

Supreme Court

New South Wales

Medium Neutral Citation:

Neylan (bht Neylan) v Crookes [2017] NSWSC 1460

Hearing dates:

24 October 2017

Date of orders:

24 October 2017

Decision date:

24 October 2017

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) I approve of the parties’ agreement to the interim payment;

 

(2) I otherwise make orders in accordance with the consent orders signed by the solicitors for the parties and by me, dated today;

 (3) List the matter for further directions before the Registrar at 9am, 24 October 2018.

Catchwords:

PROTECTIVE JURISDICTION – Interim payment – Where plaintiff is a minor – Where appointment of private fund manager is pending – Where defendant has admitted negligence – Agreement of parties approved

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Category:

Procedural and other rulings

Parties:

Mr Lachlan Bede Nylan (bht Mr Adrian Neylan) (Plaintiff)
Dr Jo Crookes (Defendant)

Representation:

Counsel: S Longhurst (Plaintiff)

  Solicitors: McLaughlin & Riordan (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s):

2014/148369

Publication restriction:

Nil

ex tempore Judgment (revised)

1. The plaintiff, by his tutor, claims damages from the defendant for medical negligence. The case is a very tragic one in that the defendant administered a flu vaccine to the plaintiff who was then aged 23 months which was inappropriate for a child under five years. On the evidence I have read, he has suffered very significant brain damage as a result and, indeed, the defendant's expert suggests that his condition ought to be considered to be like a very severe case of cerebral palsy.

2. I am asked to approve an agreement of the parties for an interim payment of damages under s 82 Civil Procedure Act 2005 (NSW). The purpose of the payment is to enable a care regime in terms of treatment and the like to be put in place for the next two years. Whereas I am satisfied that the amount proposed is for the benefit of the plaintiff and should be adequate to cover the regime which is supported by the evidence which has been read in support of the application, it does not make any provision for remuneration for any private fund manager who may be appointed to manage the fund pursuant to an application which is contemplated to be made in the Protective List in the very near future.

3. However, I am assured by the very experienced practitioners who appear - Mr Longhurst of Counsel, and Mr Saxton, solicitor - that once the likely amount of the claim for remuneration is quantified for the purpose of the Protective List application, there will be further discussions between the parties to ensure that what seems sufficient does not become insufficient by dint of that matter.

4. It may be said that it would be preferable if that could be done now as part of this approval process, however, I think, in the circumstances it is better in the interests of expediting the payment of these necessary funds to deal with the application as it is today.

5. The Court is empowered to make the order under s 82, given that the defendant has, in the defence, admitted negligence in the case. I am satisfied, under s 76 Civil Procedure Act 2005, that the amount agreed is appropriate and I approve of the parties' agreement in relation to the interim payment.

6. I otherwise make orders in accordance with the consent orders signed by the solicitors for the parties and by me dated today. These orders may be entered forthwith and I direct that the seal of the Court be affixed to each copy and a copy may be returned to the legal representatives of the parties.

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Decision last updated: 25 October 2017