Rahman t/as BHT Halima v South Eastern Sydney Local Health District

[2020] NSWSC 1651

Supreme Court

New South Wales

Medium Neutral Citation:

Rahman t/as BHT Halima v South Eastern Sydney Local Health District [2020] NSWSC 1651

Hearing dates:

18 November 2020

Date of orders:

18 November 2020

Decision date:

18 November 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Direct the plaintiff’s legal representatives to bring in short minutes of order in accordance with the form of order provided to the registrar on 13 November 2020 and the amendments discussed

Catchwords:

CIVIL PROCEDURE – parties – joinder – of plaintiffs – where mother of deceased substituted as appropriate plaintiff in circumstances of a survivor action

Legislation Cited:

Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2

Succession Act2006 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) r 6.30

Category:

Procedural and other rulings

Parties:

Mahmudur Rahman t/as BHD Halima Akter (Plaintiff)
South Eastern Sydney Local Health District (Defendant)

Representation:

Counsel:
T. Hackett (Plaintiff)
A. Bridges-Webb (solicitor) (Defendant)

Solicitors:
AM Legal Compensation Lawyers (Plaintiff)
McCabe Curwood (Defendant)

File Number(s):

2020/44714

Extempore judgment revised

1. By Statement of Claim filed on 11 February 2020 the plaintiff by his tutor, his mother, sued the defendant for medical negligence concerning its management of his birth. He suffered, amongst other things, hypoxic isachaemic encephalopathy as a consequence of perinatal asphyxia, and it is alleged that his cerebral palsy is as a result of the defendant’s negligent management of his birth. The defendant has filed a defence in which breach of duty of care is admitted but issues of medical causation remain as I understand it.

2. The plaintiff’s parents were in Australia because his mother was here on a student visa undertaking accounting studies and his father had employment here. Because of his severe disability his parents were unable to care for and support him and they returned him to the care of his grandparents in Bangladesh from where his parents hail. Sadly, the plaintiff died on 4 October 2020 just a couple of weeks short of his sixth birthday.

3. Application is now made under r 6.30 Uniform Civil Procedure Rules 2005 (NSW) for the continuation of the proceedings by his mother, and in support of that application Mr Hackett of counsel has read the affidavits of both parents, each sworn on 3 November 2020. The affidavit of the mother, Halima Akter, sets out the basic facts, and I am satisfied that she understands her obligations in relation to the proceedings, including her potential liability for costs in the unlikely event, given the admission of breach, that the proceedings are entirely unsuccessful. In saying that I make no pre-judgment about the quantum issues. The affidavit of the father, Mahfuzur Rahman, makes clear that he consents to his wife being substituted as plaintiff.

4. Rule 6.30 of the Uniform Civil Procedure Rules 2005 provides that proceedings do not abate as a result of a party’s death if the cause of action in the proceedings survives. The plaintiff’s cause of action in negligence for personal injury survives by force of s 2 Law Reform (Miscellaneous Provisions) Act 1944 (NSW), subject to certain modifications of the damages recoverable in the surviving action.

5. I am satisfied that under the provisions of the Succession Act2006 (NSW) the plaintiff being a boy of six years of age, and on the evidence of his parents, that there is no person other than his parents who would take on his intestacy. It does not seem necessary that the person who makes application to be substituted has applied for or yet taken out Letters of Administration.

6. I infer that the only asset of the estate is likely to be the proceeds of these proceedings, if any. Under r 6.30(2), where a cause of action survives and the interest of a party to any proceedings passes from that party to some other person, I am empowered to make such orders as I think fit for the joinder, removal or rearrangement of the parties. It seems to me that what is proposed in terms of the substitution of the plaintiff’s mother as plaintiff is appropriate and I propose to make that order. I record that Mr Bridges-Webb, solicitor, who appears for the defendant, consents to the order proposed.

7. I have discussed with the legal representatives of the parties the form of the order and the appropriate directions for further case management. In accordance with these reasons and that previous discussion I direct that the plaintiff’s legal representatives bring in short minutes of order with the approval of the defendant’s solicitor in accordance with the form of order provided to the registrar on 13 November 2020, but making such amendments as I have directed today should be made.

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Decision last updated: 19 November 2020