Stewart bht Stewart v Mid North Coast Local Health District

[2023] NSWSC 182

Supreme Court

New South Wales

Medium Neutral Citation:

Stewart bht Stewart v Mid North Coast Local Health District [2023] NSWSC 182

Hearing dates:

03 March 2023

Date of orders:

03 March 2023

Decision date:

03 March 2023

Jurisdiction:

Common Law

Before:

Wright J

Decision:

Settlement approved

the Court:

(1)   orders that the settlement of these proceedings be and hereby is approved;

and by consent and without admission of liability, the Court:

(2)   makes orders in accordance with pars 1, 4, and 5 of the form of consent orders signed on behalf of the parties and dated 25 November 2022, being annexure NMO1 to the affidavit of Natalie Merunovich sworn 8 February 2023;

and, the Court notes:

(3)   the agreement between the parties in pars 2 and 8 of the form of consent orders;

(4)   the undertaking of the plaintiff and the agreement between the parties in par 3 of the form of consent orders; and

(5)   the acknowledgements, consents and authorisations in pars 6 and 7 of the form of consent orders.

Catchwords:

CIVIL PROCEDURE — proceedings commenced by person under legal incapacity — settlement of proceedings — Court approval

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 76

Cases Cited:

Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840

Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Category:

Principal judgment

Parties:

Stewart bht Stewart (Plaintiff)
Mid North Coast Local Health District (Defendant)

Representation:

Counsel:
I Butcher (Plaintiff)

Solicitors:
Shine Lawyers (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2020/00194229

Judgment

1. By a statement of claim filed on 1 July 2020, the plaintiff by her tutor claims damages from the defendant arising out of injury suffered by the plaintiff at the time of her birth as a result of the alleged failure of the nursing and medical staff at Port Macquarie Base Hospital to take into account the mother’s rising blood sugar levels during labour which resulted in ketoacidosis and hypoxic ischaemic encephalopathy suffered by the plaintiff. It was not in dispute that the plaintiff, because of her conditions, was a person under legal incapacity.

2. The parties have agreed to settle the plaintiff’s claim upon terms set out in a form of consent judgment which has been signed on behalf of the parties and provided to the Court.

3. The matter has come before me because s 76(3) of the Civil Procedure Act 2005 (NSW) provides that any compromise or settlement of proceedings commenced by or on behalf of a person under legal incapacity, such as the plaintiff in the present case, may not proceed except with the approval of the Court. Moreover, s 76(4) empowers the Court either to approve or disapprove such an agreement.

4. The Civil Procedure Act itself does not provide any specific guidance as to the considerations that the Court should take into account in carrying out the task of approving or disapproving of the settlement. Nonetheless, it is well established by authorities such as Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 at [29] (Hammerschlag J) (cited with approval by the High Court in Wigmans v AMP Limited (2021) 270 CLR 623; [2021] HCA 7 at [112]) and Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840 at [3] (McCallum J) that:

1. the Court’s function is essentially protective;

2. the settlement should be assented to by the tutor and there should be opinions from the person’s legal advisers that they consider the settlement to be in the interests of the person under legal incapacity; and

3. the Court should scrutinise the settlement for itself and be satisfied that the settlement is beneficial to the interests of the person under legal incapacity.

5. The Court has been provided with an affidavit from the plaintiff, an affidavit from the plaintiff’s mother, who is also her tutor, and an affidavit from the plaintiff’s solicitor, Ms Merunovich, all of which I have taken into account. These affidavits outline the bases for the plaintiff’s claim as well as the nature and extent of her injuries and disabilities. Those injuries include, without attempting to be exhaustive, brain injury, including a major neurocognitive disorder, as well as injury to the plaintiff’s kidneys, heart and liver.

6. Ms Merunovich’s affidavit has annexed to it a copy of the consent judgment signed on behalf of the parties. In addition, copies of relevant expert reports as to both liability and quantum have been exhibited to Ms Merunovich’s affidavit. I have taken all of this material into account.

7. In particular, I have noted that Prof Bruce Brew, consultant physician and neurologist, in his report of 18 June 2021, gave evidence in relation to the plaintiff’s injuries and ongoing conditions and their effect on her ability to work. Dr David Bowers in a report dated 30 June 2021 provided a comprehensive list of diagnoses and provided his opinion as to the plaintiff’s future treatment needs, earning capacity and occupational rehabilitation, and care equipment needs. Assoc Prof Jennifer Batchelor, clinical neuropsychologist, in her report of 7 July 2021 (and the update of 21 October 2022) provided a diagnosis of Major Neurocognitive Disorder and was of the opinion that, against a background of low average to average intelligence, the plaintiff demonstrated evidence of a significant impairment of recent memory and executive functions. There were also further reports from a renal physician, occupational therapist, and vocational assessor.

8. In short, the evidence before the Court establishes that the injuries to the plaintiff suffered at the time of, and as a result of the conditions of her birth, have left her with significant ongoing disabilities which have had a substantial impact on her life and her earning capacity and have resulted in her requiring both past and future medical treatment and care and support.

9. I have also had the considerable advantage of reading the confidential advice of Mr Ian Butcher of Counsel and have taken into account his opinion.

10. I have also taken the evidence of the plaintiff and her tutor into account. The plaintiff said that she attended the mediation at which the proposed settlement was arrived at and she listened to what was said about the issues that would affect the amount she could be awarded by a court and to the advice given including as to the amounts being offered and why the final amount was recommended. She stated that she understood that this was a once and for all settlement and that she and her mother agreed with the settlement. The plaintiff’s mother and tutor’s evidence was that she understood that there were risks involved if the matter proceeded to a hearing in court, that the plaintiff would have no further entitlement to bring any claim against the defendant in respect of the subject matter of the present proceedings if the settlement proceeded and that this would be a once and for all settlement. The plaintiff’s tutor also explained her understanding of amounts that might be deducted from the settlement sum for matters relating to the NDIS, Medicare and Centrelink payments and the effect of the settlement on future Centrelink payments. She understands that the settlement funds will be held in trust for the plaintiff by a trustee and consideration was being given to whether this might be a private trustee or the New South Wales Trustee and Guardian. The tutor also gave evidence as to her understanding of the position in relation to legal costs that they were still the subject of negotiation and there would be likely to be a solicitor/own client component payable after the payment of costs by the defendant. Finally, the tutor explained how, in her view, the settlement would benefit the plaintiff and requested the Court to approve the settlement.

11. Ms Merunovich’s evidence included information as to the nature and extent of advice in relation to the proposed settlement in this matter which was given to the plaintiff and her tutor and as to the deductions and repayments that would be required to be taken out of the settlement sum. Ms Merunovich also expressly agreed with Mr Butcher’s confidential advice.

12. Taking all of the above considerations into account and having regard to the amount of the agreed settlement I am satisfied that what is proposed is prudent and that it would be beneficial to the interests of the plaintiff if the settlement is approved.

13. Accordingly, the Court:

1. orders that the settlement of these proceedings be and hereby is approved;

and by consent and without admission of liability, the Court:

2. makes orders in accordance with pars 1, 4, and 5 of the form of consent orders signed on behalf of the parties and dated 25 November 2022, being annexure NMO1 to the affidavit of Natalie Merunovich sworn 8 February 2023;

and, the Court notes:

3. the agreement between the parties in pars 2 and 8 of the form of consent orders;

4. the undertaking of the plaintiff and the agreement between the parties in par 3 of the form of consent orders; and

5. the acknowledgements, consents and authorisations in pars 6 and 7 of the form of consent orders.

**********

Decision last updated: 03 March 2023