Page by his tutor NSW Trustee and Guardian v Gunewardene
[2017] NSWSC 1539
•14 November 2017
Supreme Court
New South Wales
Medium Neutral Citation: Page by his tutor NSW Trustee & Guardian v Gunewardene [2017] NSWSC 1539 Hearing dates: 7 November 2017 Date of orders: 14 November 2017 Decision date: 14 November 2017 Jurisdiction: Common Law Before: Harrison J Decision: (1) Note that this matter has settled, subject to approval, in accordance with the terms of a consent judgment dated 7 November 2017.
(2) Approve the settlement of the proceedings between the plaintiff and the defendant pursuant to s 76(4) of the Civil Procedure Act, 2005.
(3) Make orders in accordance with paragraphs 2 to 6 inclusive of the consent judgment.Catchwords: COMPROMISE – settlement of proceedings – judgment in favour of defendant – plaintiff under a disability – settlement approved – where there are no reasonable prospects of plaintiff establishing defendant’s negligence – where proposed settlement is in plaintiff’s best interests Legislation Cited: Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Simon Ralph Page by his tutor NSW Trustee & Guardian (Plaintiff)
Ranil Gunewardene (Defendant/Cross-Claimant)
Big Beat (Australia) Pty Ltd (Cross-Defendant)Representation: Counsel:
Solicitors:
C T Barry QC with J Davidson (Plaintiff)
M J Walsh SC (Defendant)
Shaw McDonald Lawyers (Plaintiff)
Norton Rose Fulbright (Defendant/Cross-Claimant)
Hicksons (Cross-Defendant)
File Number(s): 2013/135068 Publication restriction: Nil
Judgment
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HIS HONOUR: Simon Page was severely injured when he fell from a ladder on 2 May 2010 in the course of performing painting work for his employer. As a result of the traumatic head injury sustained in the fall, Mr Page became incapable of managing his affairs.
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Dr Gunewardene practised as a psychiatrist with specialist knowledge and skill in the areas of anxiety, mood, personality, schizophrenia and related disorders. At the time of his fall, Mr Page had been taking lithium 450mg twice daily, Modafinil 50mg in the morning, Sertraline 100mg in the evening and Nortriptyline 150mg at night. In his amended statement of claim filed on 24 November 2015, Mr Page alleges that these or similar combinations of medications had been prescribed to him by Dr Gunewardene from as early as March 2007 and continuously thereafter up until the time of his fall. Mr Page further alleges that prescribing these combinations of medications for him, in the absence of close monitoring, carried with it a foreseeable risk of harm, including the propensity to suffer from dizziness and fainting. In particular, Mr Page alleges that Dr Gunewardene failed to advise or warn him of the likely or potential consequences for him of taking these medications.
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In these circumstances Mr Page maintains that on 2 May 2010 he suffered a blackout while positioned on the ladder from which he fell. It is his case that this was caused by the medication that had been prescribed by Dr Gunewardene which Mr Page had taken according to his advice.
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The proceedings are listed for hearing commencing on 5 March 2018 with an estimate of two weeks. I am now asked to approve a settlement of the proceedings, to the extent that they involve Mr Page, upon the basis of a verdict for Dr Gunewardene with no order as to costs. That result is endorsed by Mr Barry of Queens Counsel, who appears for Mr Page, upon the basis that there are no reasonable prospects of Mr Page establishing either that Dr Gunewardene was negligent in his prescribing or in his advice, or that Mr Page’s fall was caused as a matter of fact by some form of dizziness or hypotensive event while stationed on the ladder at the time.
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I have been provided with a report dated 1 February 2017 prepared by Assoc. Professor Mark Little, a consultant clinical toxicologist and emergency physician. Dr Little offered the following opinion:
“In my opinion, it is more likely than not that Mr Page fell from the ladder as he lost his balance, rather than a medical reason resulting in his fall. The literature shows that falls from stepladders is [sic] an increasing problem in Australia as the incidence of ED presentations and hospital and ICU admissions is rising. It occurs mainly in men aged 50 and older and can result in significant morbidity and mortality.
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On reviewed [sic] the CCTV, Mr Page does not maintain 3 points of contact with the ladder. When observing Mr Page prior to moving the ladder to its final location, he appears to me to over reach and I believe his umbilicus is beyond the side of the ladder. He does not go above 2 steps below the top of the ladder.”
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It follows that Mr Barry’s opinion, having regard to the state of the expert and lay evidence that is available, is that Mr Page will not be able to establish that the medications prescribed by Dr Gunewardene made a contribution, let alone a material contribution, to the fall.
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Mr Page has been in receipt of significant sums by way of workers compensation from his employer and these are continuing.
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I have had the benefit of overseeing this matter in the Professional Negligence List for some time. I am satisfied that the proposed settlement is in the best interests of Mr Page and I propose to approve it.
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Having regard to the fact that there are cross claims that are affected by this proposal, I am also asked to make orders that wholly dispose of the proceedings. Accordingly, I make the following orders:
I note that this matter has settled, subject to approval, in accordance with the terms of a consent judgment dated 7 November 2017.
I approve the settlement of the proceedings between the plaintiff and the defendant pursuant to s 76(4) of the Civil Procedure Act, 2005.
I otherwise make orders in accordance with paragraphs 2 to 6 inclusive of the consent judgment.
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Decision last updated: 14 November 2017
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