Swanson v Northern Sydney Local Health District

[2022] NSWSC 1195

Supreme Court

New South Wales

Medium Neutral Citation:

Swanson v Northern Sydney Local Health District [2022] NSWSC 1195

Hearing dates:

29 August 2022

Date of orders:

07 September 2022

Decision date:

07 September 2022

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

Infant settlement approved

Catchwords:

NEGLIGENCE – medical negligence – Compensation to Relatives Act proceedings on behalf of infant children of the deceased – whether settlement in best interests of children

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 76, 77

Compensation to Relatives Act 1897 (NSW)

Category:

Procedural rulings

Parties:

Matthew Swanson (Plaintiff)
Northern Sydney Local Health District (Defendant)

Representation:

Counsel:
A P L Naylor (Plaintiff)

Solicitors:
Maurice Blackburn Lawyers (Plaintiff)
McCabes (Defendant)

File Number(s):

2021/46584

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Paula O’Regan died by her own hand on 3 April 2018 when on a group walk beyond the secure perimeter of the Royal North Shore Hospital, where she was an involuntary patient under the Mental Health Act 2007. Her husband Matthew Swanson has commenced these proceedings seeking, among other things, damages for himself and their children pursuant to the Compensation to Relatives Act 1897. Three of the children are still under the age of 18 years. The proceedings have been settled, subject only to approval in respect of the amount to be allocated to them.

2. Mr Swanson alleges that the defendant, which is the body responsible for the administration of the hospital, breached its duty of care in a number of respects. There is no dispute that the defendant owed Ms O’Regan a non-delegable duty to exercise reasonable care and skill in the provision of professional advice and treatment to her in relation to her mental illness. Mr Swanson contends that the defendant breached its duty of care by allowing Ms O’Regan to leave the general acute ward when no approval had been given for her to do so. That was in the context that at the time of her admission to hospital, Ms O’Regan was experiencing a form of psychosis and was at risk of self-harm.

3. Liability remains in issue.

4. I am advised that the parties have agreed to settle the dispute upon the basis of a verdict for the plaintiff for $1,100,000 plus costs. From that amount, provision must be made for Mr Swanson’s three youngest boys who are respectively born in February 2007, January 2011 and August 2013.

5. I have been provided with a Confidential Opinion on Settlement Approval by Mr Naylor of counsel for Mr Swanson. Mr Naylor has analysed the potential losses suffered by the infant children, having regard to the actuarial parameters of their claim and the competing contentions on the question of the defendant’s liability. That analysis extends both to the prospects of success in the litigation at all as well as the calculation of damages that might be awarded having regard to Ms O’Regan’s earnings. The prospect that Ms O’Regan may have died prematurely in circumstances unrelated to the defendant’s care was a further possibility that directly affected the assessment of the quantum of damages.

6. Part of the material with which I have been provided includes analyses by the parties’ respective experts of the children’s actuarially assessed damages including compensation claimed on their behalf for past and future loss of support caused by their mother’s death. Applying the proportions derived from these analyses to the gross settlement sum, the following calculations emerge:

Plaintiff	Joel	Dylan	Mitchell	William	Total
Past Losses (25%)	$155,453	$14,410	$23,395	$36,049	$45,692	$274,999
Future Losses (75%)	$466,359	$43,230	$70,187	$108,147	$137,078	$825,001
Total Losses	$621,812	$57,640	$93,582	$144,196	$182,770	$1,100,000

7. Joel has now turned 18 years of age. His three younger brothers are still infants and as I have indicated, the compromise only requires approval of the damages to be awarded to them.

8. Mr Swanson has provided instructions that, in the name of family solidarity, his preference would be for all of the boys to be allocated the same amount. I understand that sentiment. However, I am required, when considering whether a compromise is in the best interests of an infant who is the beneficiary of a proposed settlement in representative proceedings, to have regard to the individual’s special and particular needs. The children were not separately represented, a matter which I find to be wholly unexceptional. However, having regard to the disparate ages of the boys, and their predicted needs for support until they achieve majority, it is simply not possible on any principled basis to treat them as the same. It has to be borne in mind that the differences in amounts that must be allocated to the three boys in question is not a function of favouritism or of merit determined on some basis unrelated to purely financial considerations. Understood in that fashion, I am confident that there will be no prospect of any misunderstanding developing in the family as years pass.

9. Having regard to the expert calculations, I consider that the sums allocated to the infants in the schedule inserted above are both appropriate amounts having regard to the gross settlement sum of which they are a fraction and in the best interests of the boys having regard to the risk that a smaller sum might be recovered if the matter went to trial on a contested basis.

10. In these circumstances I consider that the following orders should be made:

1. I note that this matter has settled subject to approval, in accordance with the terms of a consent judgment dated 29 August 2022 and signed by the legal representatives of the parties.

2. I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005.

3. I make orders in accordance with paragraphs 1 to 11 inclusive of that consent judgment which for identification I will initial, date with today’s date and place with the papers.

4. I order in accordance with s 77(2) of the Civil Procedure Act 2005 that of the judgment sum referred to in paragraph 3 of the consent judgment, the following amounts be paid into Court for payment out thereafter to the NSW Trustee & Guardian or as the Court may upon application made pursuant to s 77(3) of the Act otherwise direct upon trust:

1. as to the sum of $93,582 for Dylan Swanson until he attains the age of 18 years;

2. as to the sum of $144,196 for Mitchell Swanson until he attains the age of 18 years;

3. as to the sum of $182,770 for William Swanson until he attains the age of 18 years.

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Decision last updated: 07 September 2022