Supreme Court Of the Australian Capital Territory; Case Title:; Kristine Kealy by her litigation guardian Rohan Cutler v; Calvary Healthcare (ACT) Ltd; Citation:

[2022] ACTSC 205

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kristine Kealy by her litigation guardian Rohan Cutler v Calvary Healthcare (ACT) Ltd

Citation:

[2022] ACTSC 205

Hearing Date:

15 August 2022

DecisionDate:

15 August 2022

Before:

Elkaim J

Decision:

1.    The settlement is approved.

2.    Orders are made in accordance with orders 1, 2, 3, 4, 5, 6, and 7 of the application in proceeding, filed on 22 July 2022, noting that in order 3, the words “and costs sum of” are deleted.

Catchwords:

CIVIL LAW – NEGLIGENCE – Settlement – approval of settlement by or on behalf of a person with a legal disability – settlement approved  

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 282

Parties:

Kristine Kealy by her litigation guardian Rohan Cutler ( Plaintiff)

Calvary Healthcare (ACT) Limited ( Defendant)

Representation:

Counsel

D Campbell SC and B Jullienne ( Plaintiff)

C Warden ( Defendant)

Solicitors

Slater + Gordon ( Plaintiff)

ACT Government Solicitor ( Defendant)

File Number:

SC 335 of 2020

Elkaim J:

1. The plaintiff was born in 1964. She has a litigation guardian.

1. In October 2020, her litigation guardian commenced proceedings on her behalf alleging that she had suffered negligent treatment at the hands of the defendant, essentially a hospital. This followed visits to the hospital in December 2011 and also twice in April 2012.

1. The plaintiff has a legal guardian because she suffers from a legal disability. Accordingly, the settlement of her claim requires approval pursuant to r 282 of the Court Procedures Rules 2006 (ACT).

1. The primary allegation against the defendant relates to the causing of neurological damage, including, perhaps hypoxic brain damage, as a result of the defendant’s actions.

1. I have had the opportunity of reading the affidavit material in support of the application, which includes an affidavit of Mr Liam Casey, sworn on 21 July 2022, which includes a substantial amount of the medical material. There is also an affidavit from Mr Rohan Cutler, affirmed on 21 July 2022. Mr Cutler is the litigation guardian. He is the plaintiff’s brother-in-law.

1. In addition I have had the enormous benefit of a confidential memorandum of advice from senior and junior counsel. They recommend the settlement, as does the solicitor for the defendant. Having regard to the combined experience of counsel and the solicitor, I have little doubt that their opinion is sound.

1. There is clearly an element of compromise but it is a compromise for good reason.

1. Accordingly, the settlement is approved.

1. I make orders in accordance with orders 1, 2, 3, 4, 5, 6, and 7 of the application in proceeding, filed on 22 July 2022, noting that in order 3, the words “and costs sum of” are deleted.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: