Schultz v Centre for Minimally Invasive Neurosurgery Incorporated - [2023] NSWSC 970

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Schultz v Centre for Minimally Invasive Neurosurgery Incorporated and Anor [2023] NSWSC 970
Hearing dates: 2 August 2023
Date of orders: 2 August 2023
Decision date: 02 August 2023
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
See paragraphs [28]-[29].

Catchwords:
NEGLIGENCE — Personal injuries — Settlement approval – where plaintiff asserts that negligent medical advice caused a deterioration in his medical condition and life expectancy – where plaintiff under a legal incapacity – whether the Court is satisfied that the settlement is for the plaintiff’s benefit – orders made by consent

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 76, 77

Cases Cited:
Dickson v Parker [2023] NSWSC 569

Category: Principal judgment
Parties: Grant Schultz (Plaintiff)
Centre for Minimally Invasive Neurosurgery Incorporated (First Defendant)
Charles Teo (Second Defendant)
Representation:
Counsel:
Mr S Maybury (Plaintiff)
Mr M Hutchings (First and Second Defendants)
Solicitors:
Shine Lawyers (Plaintiff)
Meridian Lawyers (First and Second Defendants)

File Number(s): 2022/00334554
Publication restriction: None

REVISED EX TEMPORE JUDGMENT

This matter comes before me today by way of an application for approval of a settlement pursuant to s 76 of the Civil Procedure Act 2005 (NSW) (“CPA”). Mr Maybury of counsel appears for the plaintiff and Mr Hutchings of counsel appears for the defendants.
As the plaintiff is a person who is under a legal incapacity, any settlement must be approved by the court pursuant to s 76(3) of the CPA.
As has often been said, the Court’s function with respect to any such application is essentially protective. I must review all of the evidence presented on the application to be satisfied that the settlement is for the plaintiff’s benefit (see Dickson v Parker [2023] NSWSC 569).
That question really turns on whether there are sufficient prospects of obtaining a more favourable judgment for the plaintiff, such as to outweigh the value of certainty which arises from the settlement. Those principles are particularly apt in this matter, having regard to the plaintiff’s limited life expectancy.
In support of the application, the plaintiff relies on an affidavit of the plaintiff’s wife and tutor, Julieann Schultz, dated 2 August 2023 and the affidavits of Alix Shanahan dated 1 and 2 August 2023.
The affidavit of Ms Shanahan of 2 August 2023 primarily deals with costs issues. I have marked that confidential. It has not yet been provided to the solicitors for the defendants, as it contains estimates as to the amount of costs that the plaintiff hopes to recover from the defendants following the usual negotiation process. I am sure the defendants understand why that affidavit has not been provided to them at this time.
I am also in receipt of a confidential advice of counsel for the plaintiff, Mr Maybury, dated 1 August 2023. The confidential advice of Mr Maybury includes his views as to the risks associated with the litigation, the potential damages and likely result and the benefits of the settlement. I am…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 970
Decision Date: 02 August 2023

CaseChat Overview and Summary

The case before the court involved a claim for damages for personal injury against a medical practitioner, Centre for Minimally Invasive Neurosurgery Incorporated. The plaintiff, Schultz, alleged that the defendant's negligent medical advice resulted in a deterioration of his medical condition and reduced life expectancy. Schultz was under a legal incapacity at the time of the proceedings due to a medical condition. The court was required to determine whether it was satisfied that the settlement reached was for Schultz's benefit.

The primary legal issue before the court was whether the settlement reached between Schultz and the defendant was in his best interests. The court had to consider whether the settlement provided adequate compensation for Schultz's injuries and whether it was reasonable in all the circumstances. The court also had to consider Schultz's best interests in light of his legal incapacity and the need to protect his assets.

The court found that the settlement reached between Schultz and the defendant was fair and reasonable. The court was satisfied that the settlement provided adequate compensation for Schultz's injuries and was in his best interests. The court also found that the settlement was reasonable in light of the risks and uncertainties involved in pursuing the claim to trial. The court approved the settlement, and orders were made by consent.

This case highlights the importance of considering the best interests of a plaintiff who is under a legal incapacity when approving a settlement. The court must ensure that the settlement provides adequate compensation for the plaintiff's injuries and is in their best interests. The court must also consider the risks and uncertainties involved in pursuing the claim to trial and the potential costs and expenses that may be incurred. In this case, the court found that the settlement was fair and reasonable and approved it by consent.

Orders