Tanya Garth v Hunter New England Health District

[2022] NSWSC 1309

Supreme Court

New South Wales

Medium Neutral Citation:

Tanya Garth v Hunter New England Health District [2022] NSWSC 1309

Hearing dates:

23 September 2022

Date of orders:

23 September 2022

Decision date:

23 September 2022

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) I approve the settlement set out in the Consent Judgment in the sum identified in par 1 of the Consent Judgment plus costs as agreed or assessed, and I make that approval pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

(2) I enter judgment for the plaintiff in the sum set out in par 1 of the Consent Judgment plus costs as agreed or assessed.

(3) I apportion the judgment sum in accordance with par 2 of the Consent Judgment.

(4) I note pars 3, 4, 5, 6 and 7 of the Consent Judgment.

(5) Pursuant to s 77(2) of the Civil Procedure Act I order that the amounts in pars 2(c) and 2(d) of the Consent Judgment be paid to the NSW Trustee & Guardian to be held on trust for Jake Garth and Halle Garth respectively until each attains his and her majority.

(6) I will initial the Short Minutes of Order and Consent Judgment and place them with the Court papers.

Catchwords:

CIVIL PROCEDURE – settlement of proceedings – court approval

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Category:

Procedural rulings

Parties:

Tanya Garth (Plaintiff)
Hunter New England Local Health District (Defendant)

Representation:

Counsel:
D Toomey SC / R Lynch (Plaintiff)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2020/00191791

Publication restriction:

Nil

Revised extempore Judgment

1. David Garth was 42 years old when he died from appendicitis. He was married to Tanya, the plaintiff, and was father to Halle and Jake with Tanya, and also to Madison, who was Tanya’s child from a previous relationship whom he raised, with Tanya, from the time Madison was 18 months old. By all accounts he was a much loved husband and father, a hard worker, and a good and kind parent and was loved very much and is much missed by Tanya, Halle, Jake and Madison and no doubt his friends and wider family.

2. Unfortunately his appendicitis with which he attended Maitland Hospital on 11 May 2019 was missed and not treated, as Dr Raftos has made clear in his report recognising that fact. The defendant, the Local Health District which manages and managed at the time the Maitland Hospital, admitted that it had breached its duty of care relevantly, and the case has been appropriately prepared and discussed and settled as is entirely appropriate.

3. I have carefully read the affidavit material, first of Tanya and also of the solicitor, Ms Emma Fitzpatrick, and that material outlines well for me the issues presented in the case and explains why those issues underpin the settlement.

4. I am of the view that the settlement reached is appropriate. I should add in reaching that view I rely significantly on the succinct and focused advice of senior counsel, Mr Toomey, and Mr Lynch, which makes it clear why I should be satisfied that the settlement should be approved as appropriate and why it is in the best interests of the family and, in particular, the children of the family. I note the Court is greatly assisted by confidential advices of this type by reliable and experienced counsel in these matters.

5. Accordingly, I make the following orders:

1. I approve the settlement set out in the Consent Judgment in the sum identified in par 1 of the Consent Judgment plus costs as agreed or assessed, and I make that approval pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

2. I enter judgment for the plaintiff in the sum set out in par 1 of the Consent Judgment plus costs as agreed or assessed.

3. I apportion the judgment sum in accordance with par 2 of the Consent Judgment.

4. I note pars 3, 4, 5, 6 and 7 of the Consent Judgment.

5. Pursuant to s 77(2) of the Civil Procedure Act I order that the amounts in pars 2(c) and 2(d) of the Consent Judgment be paid to the NSW Trustee & Guardian to be held on trust for Jake Garth and Halle Garth respectively until each attains his and her majority.

6. I will initial the Short Minutes of Order and Consent Judgment and place them with the Court papers.

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Decision last updated: 28 September 2022