Plaintiff AA by Tutor BB v Australian Capital Territory

[2021] ACTSC 316

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Plaintiff AA by Tutor BB v Australian Capital Territory

Citation:

[2021] ACTSC 316

Hearing Date:

10 December 2021

DecisionDate:

10 December 2021

Before:

Elkaim ACJ

Decision:

Settlement is approved

Catchwords:

CIVIL LAW – APPLICATION – Application for confidential settlement of proceedings – settlement for person under a legal disability – suppression of details

Legislation Cited:

Court Procedure Rules 2006 (ACT) r 282

Parties:

Plaintiff AA by Tutor BB ( Plaintiff)

Australian Capital Territory ( Defendant)

Representation:

Counsel

D Higgs SC ( Plaintiff)

A Black SC ( Defendant)

Solicitors

Benjamin Lawyers ( Plaintiff)

ACT Government Solicitor ( Defendant)

File Number:

SC 114 of 2017

ELKAIM ACJ:

1. An application in proceeding, dated 2 December 2021, has been filed on behalf of the plaintiff. The application seeks the approval of a settlement between the parties pursuant to r 282 of the Court Procedure Rules 2006 (ACT).

1. The plaintiff is now 27 years of age but she suffers from a legal disability which requires the settlement of the litigation between her and the defendant to be approved by the Court.

1. The plaintiff’s claim against the defendant arises from an allegation of medical negligence which occurred at Woden Valley Hospital in 1995. The plaintiff was then one year of age.

1. The negligence asserted is that the relevant professional staff at the hospital mis-diagnosed the condition suffered by the plaintiff when her parents brought her to the Emergency Department on 23 October 1995. She was then febrile, vomiting and lethargic.

1. The plaintiff has never recovered from the ailment with which she presented to the hospital. She suffers from both physical and intellectual disabilities. Her disabilities are probably continually deteriorating. She requires significant care and treatment as well as a modified living environment.

1. The defendant denies that it was negligent and has amassed a body of medical opinion to substantiate its stance. This opinion is contrary to the medical opinion upon which the plaintiff relies. The defendant also has gathered a number of expert reports which challenge the quantum of the plaintiff’s claim.

1. The background to the claim, the progress and current state of the plaintiff, her needs and life expectancy are all described in a joint confidential advice prepared by senior and junior counsel. The advice also describes the competing opinions on liability and quantum.

1. The advice recommends the settlement. The recommendation is based on two matters:

(a)The real risks associated with liability and the extent of quantum. I note that solicitors previously consulted on behalf of the plaintiff did not think the plaintiff would succeed.

(b)The benefits of an early settlement, noting that any hearing would be likely to extend over four to six weeks, followed by a reserved decision and then the possibility of an appeal.

1. The two counsel who prepared the advice can only be described as at the forefront of medical negligence litigation. Their opinion carries significant weight.

1. The defendant’s senior counsel has commended settlement. His view is of equal weight.

1. The settlement includes the payment of a substantial amount of money to each of the plaintiff’s parents. As substantial as these sums are, they are significantly less than the calculated amount that the plaintiff would receive for past domestic assistance. Suffice to say that it is apparent from the affidavit material that the plaintiff’s parents have devoted their lives to the care and upbringing of the plaintiff. This has impacted upon them both in relation to their careers and psychiatrically. I have also been informed that the money they receive will be devoted to the benefit of their family.

1. In my view the settlement should be approved for the reasons suggested by counsel.

1. I have also been asked to make orders to ensure the confidentiality of the settlement, including the non-publication of the name of the plaintiff and her tutor. This is an unusual request but in the circumstances of this case, and noting that the family is to start a new life in a country town, I think it is appropriate.

1. I approve the settlement as contained in the Terms of Settlement dated today, 10 December 2021.

1. I make the orders in the General Form of Consent Judgment entered today, together with order 4 in the application in proceeding dated 2 December 2021.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for  Judgment of his Honour Acting Chief Justice Elkaim.

Associate:

Date: 10 December 2021