Paterson v Calvary Healthcare Act Ltd
[2023] ACTSC 70
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Paterson v Calvary Healthcare ACT Ltd |
Citation: | [2023] ACTSC 70 |
Hearing Date: | 31 March 2023 |
DecisionDate: | 31 March 2023 |
Before: | McWilliam AsJ |
Decision: | See [17]. |
Catchwords: | NEGLIGENCE – medical treatment which resulted in death – compensation to relatives – where one child is a minor – settlement of proceedings – court approval required for settlement involving a minor |
Legislation Cited: | Court Procedures Rules (2006) (ACT), r 282 Health and Other Services (Compensation) Act 1995 Public Trustee and Guardian 1985 (ACT), s 25 |
Cases Cited: | Duffell v Duffell [2015] ACTSC 123 Elliott (by his next friend) v Diener (1978) 21 ACTR 21 Veal (by his next friend Watson) v Hehir [2018] ACTSC 330 |
Parties: | Melissa Jane Paterson (First Plaintiff) Ruben Paterson (by his Litigation Guardian Melissa Jane Paterson) (Second Plaintiff) Calvary Healthcare ACT Ltd (Defendant) |
Representation: | Counsel A Muller ( Plaintiffs) S Moore ( Defendant) |
| Solicitors David Healey Solicitors (Plaintiffs) ACT Government Solicitors (Defendant) | |
File Number: | SC 63 of 2023 |
McWilliam AsJ:
The parties to the present litigation have been involved in a dispute arising out of a medical negligence claim. A claim was brought against Calvary Healthcare ACT Limited by the wife and three children of Mr Jay Patterson, who died in September 2017 following treatment provided some time earlier by the Calvary Hospital.
The Application before the Court
A compromise has been reached between the defendant, the two plaintiffs and the other two children, being adult claimants. It is $450,000 in total, exclusive of costs. As one of the claimants (the second plaintiff) is a child, an application must be made for approval of the settlement insofar as it relates to the child pursuant to r 282 of the Court Procedures Rules (2006) (ACT). An originating application was filed on 13 February 2023 for that purpose.
One quarter of the total settlement sum (that is, $112,500) is the proposed share allocated to the second plaintiff. Each of the adult claimants and their mother will receive the remaining three quarters in equal shares. There are draft orders by consent to be forwarded to the Court for the finalisation of the proceedings subject to the approval of the settlement component in respect of the second plaintiff.
The Court’s jurisdiction and approach
For consistency and convenience, the following largely replicates the authorities and principles referred to in Royce (a pseudonym) v Australian Capital Territory [2023] ACTSC 69, a matter that was heard and determined on the same day as the present application. In deciding whether to approve a settlement involving an infant, the Court is exercising the inherent parens patriae jurisdiction; that is, the protective jurisdiction of the Court: Veal (by his next friend Watson) v Hehir [2018] ACTSC 330 (Veal) at [21], cited more recently in Ryan v Larkham [2022] ACTSC 151 (Ryan).
I described the jurisdiction in Veal at [21]-[23] as follows:
21.The rule reflects the inherent protective jurisdiction of the Court (described as the court’s parens patriae jurisdiction), exercised under the framework provided for by the rules and statutes: Singh (by her next friend Singh) v Calvary Hospital Act Inc (No 2) [2009] ACTSC 57; 3 ACTLR 247 at [11]; Duffel v Duffel [2015] ACTSC 123 at [11].
22.The parens patriae jurisdiction is ancient, wide-ranging and far-reaching. It extends as far as necessary for the protection of children and those persons who from their legal disability cannot look after themselves and are in need of protection: Secretary, Department of Health and Community Services v JWB and SMB [Marion’s Case] (1992) 175 CLR 218 at 258–9 per Mason CJ, Dawson, Toohey and Gaudron JJ, 278–80 per Brennan J.
23.…r 282… reflects the Court’s power to protect the interests of a person under a legal disability, by maintaining full control over any settlement compromising their claim: Dietz v Lennig Chemicals Ltd [1969] 1 AC 170 at 189 per Lord Pearson.
The applicable principles in the Territory have been considered in cases such as Elliott (by his next friend) v Diener (1978) 21 ACTR 21 (Elliott) at 22, Duffell v Duffell [2015] ACTSC 123 (Duffell) at [28]-[33], and Singh (by her next friend Singh) v Calvary Hospital Incorporated [2008] ACTSC 118; 220 FLR 352.
The exercise of the equivalent jurisdiction has also been the subject of repeated and detailed consideration in New South Wales. A useful summary is contained in Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 (Fairhurst). As part of a comprehensive discussion of the authorities and principles, Hallen AsJ (as his Honour then was) stated at [30]-[32] (emphasis added):
30.The jurisdiction of the court and its procedure is protective in nature. It is akin to the inherent parens patriae jurisdiction of the court under the common law. Relevantly, the Court must act so as to protect the interests of infants: Yu Ge v River Island Clothing Pty Ltd [2002] NSWSC 28; (2002) Aust Torts Reports 81-638 at [28].
31.In Permanent Trustee Co Ltd v Mills [2007] NSWSC 336; (2007) 71 NSWLR 1, Hammerschlag J said, in relation to such approval:
"[29] The principle is that for the Court to grant approval for a compromise to be entered into by the disabled person it must form the view that it is beneficial to his or her interests. The compromise should be assented to by the tutor and there should be opinions from his or her legal advisers that they consider it to be so: Re Birchall. The Court will consider for itself whether the compromise will be beneficial to the disabled person: Re Ley's Trusts [1964] 1 WLR 640."
32. In Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357, Rothman J said:
"[29] The jurisdiction of the Court is protective in nature and the overriding principle is that the Court will base the approval or disapproval upon the formation of an opinion that the agreement is or is not beneficial to the interests of the person under the incapacity. It is for the Court, not the parties, to determine whether the compromise will be beneficial to the person under an incapacity: Re Ley's Trusts [1964] 1 WLR 640; Permanent Trustee v Mills [2007] NSWSC 336.
...
[41] Ultimately, the principle that I apply is whether the settlement that has currently been reached (and the amount thereof) is in the interests of the plaintiff. In that regard, bearing in mind the risk that, liability being in issue, the plaintiff would receive nothing from any hearing that may occur, the test may be described as whether the risk to the plaintiff, of losing that which is already agreed, is outweighed by the possibility of receiving more if the matter were to go to hearing."
In Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298, Allsop P (as his Honour then was) referred to the discussion in Fairhurst at [2] as a “helpful recitation of authority” the principles of which his Honour then took into account. His Honour went on in the same paragraph to say:
…There are no guidelines as to the exercise of the Court’s discretion to approve or disapprove terms of settlement. The principle is whether the settlement is in the best interests of the minor or is beneficial to the minor.
In this jurisdiction, McCallum CJ has recently similarly stated in Ryan at [41]:
…the overriding principle in exercising the discretion whether to approve a settlement is for the Court to consider whether the proposed compromise is or is not beneficial to the interests of the person under the incapacity … that decision is uniquely one for the Court and not for the parties.
It can be seen from the above that the Court’s task is directed simply to determining whether the settlement sum is in the interests of, or for the benefit of, the infant. However, the test of “benefit” is not merely whether the settlement sum is adequate and reasonable. As stated by Blackburn CJ in Elliott at 22, the matter is not to be decided as if the judge were awarding damages after a fully contested hearing.
A significant consideration is the degree to which the person under the disability (the infant) is at risk that if the proceeding went to trial, the result would be less favourable than what has been offered in the settlement. The Court will hesitate to withhold its approval of a settlement which provides certainty where such a risk exists (described in Duffell as a “not insignificant” risk: see [32]-[33] and the authority there-cited).
Is the compromise in the interests of the second plaintiff?
The application was supported by the affidavits of David Healey, affirmed 10 February 2023, solicitor for the second plaintiff, and his tutor, Melissa Jane Paterson, affirmed on 3 February 2023.
Also accompanying the application was a confidential 17-page advice prepared by Mr Andrew Muller of counsel, dated 9 February 2023. He is experienced counsel, with particular expertise in the area of medical negligence. The advice is comprehensive and sets out the reasons for recommending the proposed settlement to the Court.
In the present case, and with due regard to the confidentiality of the advice, I have taken into account and accepted the opinion of Mr Muller. That included a consideration of the issues arising in the case, the areas of dispute, the risks associated with establishing the conduct of the defendant was causative of harm, a frank view about the expert evidence and the position of Comcare were the settlement to be approved.
The tutor of the second plaintiff (his mother) has set out her understanding of and assent to the settlement. The solicitor on the record for the plaintiffs deposes to other significant considerations relevant to the present application, such as his view that the amount of the settlement is within the range of likely damages assessed by the experts and the importance to the family in this case of not being put through the ordeal of a contested hearing, with the associated anxiety, delay and risks. The solicitor also recommends to the Court the approval of the settlement.
Having considered those matters, along with the competing expert reports in evidence and placing particular reliance upon the contents of the confidential advice, I am satisfied that the settlement proposed is one that is for the benefit of the second plaintiff, in the sense explained above. Accordingly, I will make orders approving the settlement.
Conclusion
The Orders of the Court are as follows:
1.Pursuant to rule 282 of the Court Procedures Rules 2006 (ACT), the Court approves a settlement of $112,500.00 exclusive of costs (“the settlement sum”).
2.Subject to order 3, the settlement sum is to be paid by the defendant into this Court pursuant to s 25 of the Public Trustee and Guardian 1985 (ACT).
3.The defendants are authorised to deduct and pay from the settlement sum any amounts required by law to Medicare Australia and Centrelink pursuant to the Health and Other Services (Compensation) Act 1995 (Cth).
4.Upon compliance with Orders 2 and 3, the moneys paid into Court are to be paid forthwith out of Court to the ACT Public Trustee and Guardian, for investment on behalf of the second plaintiff, Ruben Paterson.
5.Interest is not to run on the settlement sum if paid within 28 days of receipt by the ACT Government Solicitor of a sealed General Form of Order.
6.The advice of Mr Andrew Muller of Counsel dated 9 February 2023 is to be marked Exhibit 1, placed in an envelope, sealed and the envelope marked “not to be accessed without an order of a Judge or Associate Judge”.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: 3 April 2023 |
8
0