Tartak by her tutor Tartak v Zada

[2017] NSWDC 330

District Court

New South Wales

Medium Neutral Citation:	Tartak by her tutor Tartak v Zada [2017] NSWDC 330
Hearing dates:	12 October 2017
Date of orders:	12 October 2017
Decision date:	12 October 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Pursuant to ss 75-77 Civil Procedure Act 2005 (NSW), approve the settlement set out in the Consent Order filed in court today and make orders as follows: (1) Judgment for the plaintiff for the sum in paragraph 1. (2) Each party pay her or its own costs of these proceedings, save that the defendant will pay the report fees of Dr Akkerman and Dr Hampshire. (3) Note the undertaking of Mr Naushad Husaini, the current solicitor for the plaintiff, not to make any application to the NSW Trustee & Guardian for legal costs and that if any application is made in relation to the costs of the previous solicitor, Thomas Booler Lawyers (per Mr Marcel Joukhador), the parties are to have liberty to seek a personal costs order against those solicitors pursuant to s 99 Civil Procedure Act 2005 (NSW). (4) Note the provisions of paragraphs 3-6. (5) The net sum remaining after the deductions referred to in paragraph 2, namely the sum in paragraph 4, is to be paid direct to the NSW Trustee & Guardian for investment until the plaintiff’s 18th birthday. (6) Having regard to the manner in which the report of Dr Akkerman has failed to diagnose the plaintiff’s condition in a manner consistent with the Code of Conduct, refer Dr Akkerman’s report to the Health Care Complaints Commission.
Catchwords:	TORT – personal injury – minor brings action for damages for psychiatric injury – unsatisfactory medical evidence and delay by solicitor – whether settlement of the claim should be approved under ss 75 – 77 Civil Procedure Act 2005 (NSW) – settlement approved
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 75-77
Cases Cited:	Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96
Category:	Principal judgment
Parties:	Plaintiff: Charlize Tartak by her tutor Milia Tartak Defendant: Sayed Murtaza Hassan Zada
Representation:	Counsel: Plaintiff: Mr J de Greenlaw Defendant: Ms J Gumbert   Solicitors: Plaintiff: Thomas Booler & Co Defendant: QBE In House Legal
File Number(s):	2017/100836
Publication restriction:	None

Judgment

1. This is another infant settlement which has previously been rejected by other judges in this Court by reason of concerns over the diagnosis of the plaintiff by Dr Akkerman who, in his report of 27/11/15, said that the plaintiff would benefit from seeing a psychiatrist and from taking antidepressant medication for $400 per month for two years and diagnosed her as having a whole person impairment of 13%.

2. On 28 April 2017, which was the first return date, the settlement came before McLoughlin SC DCJ, the List Judge, for approval. His Honour declined to approve the settlement, “on the basis that Dr Akkerman has expressed an opinion for ongoing psychiatric care and on the costs referred to would use the whole of the verdict monies”. His Honour added: “I note the affidavit of the mother that Dr Akkerman’s treatment in is not required and the plaintiff has recovered fully” but was nevertheless not prepared to approve the settlement. His Honour accordingly stood the matter over to the Infant Approval List on 26 May 2017.

3. When the matter came before me on 26 May 2017 in the Infant Approval List, the plaintiff sought an adjournment as the application was not ready to proceed. I made the following orders:

1. On the application of the plaintiff for an adjournment of six weeks, these proceedings are listed instead for Friday 11 August 2016, to be heard together with proceedings Haidar by tutor -v- Ha (2017/66185), with liberty to apply in the event that this date is unsuitable to the defendant.

2. Costs reserved, with the plaintiff to provide an affidavit of explanation in relation to costs issues generally.

3. Note this settlement was not approved by Judge McLoughlin SC on 28 April 2017 and that Judge Gibson has indicated that she would not be prepared to approve a settlement based on Dr Akkerman’s report due to its many inadequacies.

4. The matter came before me again on 11 August when it was again not ready to proceed, and I stood it over to Tuesday 15 August.

5. On Tuesday 15 August, there were applications by two defendants represented by Mr Renshaw in relation to issues asserted to be of concern in relation to Dr Akkerman’s reports which was set down for hearing today. To err on the side of caution, having regard to this settlement having been rejected by another judge of this Court, I stood this matter over as well so that they could be dealt with at the same time.

6. I am indebted to both counsel for their sensible conduct and resolution of the issues in these proceedings, which effectively are that an inappropriately large whole personal impairment percentage has been given by Dr Akkerman as a result of his diagnosis of the plaintiff as suffering “specific phobia (traffic) separation anxiety disorder and post-traumatic stress disorder”.

7. As the other medical evidence now before me (particularly the report of Dr Hampshire) makes clear, this is an exaggerated and unrealistic diagnosis of the plaintiff. Mr de Greenlaw notes in his helpful advice provided to the Court on 11 August, that while Dr Hampshire took into account that the plaintiff had some apprehensions while a passenger in a car, he considered she had no psychological impairment referable to the motor vehicle accident, and that the plaintiff’s scores in relation to the BECK depression inventory were of the de minimis variety. In fact, Dr Hampshire noted the plaintiff had very superior intelligence with ambitions to study medicine and to go into brain surgery.

8. This latter observation is relevant for other reasons. Dr Akkerman’s diagnosis of psychiatric conditions of some severity, requiring extensive drug therapy, might have some impact upon the plaintiff’s professional career, or in other matters where a full medical history might be required, particularly if the plaintiff did not comply with his recommendation for two years of drug therapy.

9. It is clear to me from the medical evidence provided that the report of Dr Akkerman is out of all proportion to what few symptoms, if any, the plaintiff suffered as a result of the motor vehicle accident.

10. Accordingly, I am prepared to approve the settlement, but in circumstances where I specifically note that I reject the findings of Dr Akkerman which I consider to be wholly out of proportion to the evidence and other medical opinions expressed in this case. As I have noted in other application approvals, the similarities between this report’s structure and findings with other reports before me today suggest “cut and paste” rather than actual diagnosis and compliance with the Code of Conduct for expert reports in this court.

11. I note that I propose to make the same costs orders in these proceedings as in the matter of Kandil by his tutor Kandil v Halliday (2016/172920) where a similar problem arose.

12. In the course of hearing these proceedings, an issue which has arisen is the circumstances in which the preparation of Dr Akkerman’s report may give rise to concern. The making of such a finding by a Court is an independent administrative decision, not part of the judicial process, and has been explained as such by the Court of Appeal in Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96 at [16] [18]. It is for the reasons set out in paragraph 10 above that I have referred Dr Akkerman’s report to the Health Care Complaints Commission.

Orders

13. Pursuant to ss 75-77 Civil Procedure Act 2005 (NSW), approve the settlement set out in the Consent Order filed in court today and make orders as follows:

1. Judgment for the plaintiff for the sum in paragraph 1 [note: this settlement sum is entered on JusticeLink but is not identified in this judgment].

2. Each party pay her or its own costs of these proceedings, save that the defendant will pay the report fees of Dr Akkerman and Dr Hampshire.

3. Note the undertaking of Mr Naushad Husaini, the current solicitor for the plaintiff, not to make any application to the NSW Trustee & Guardian for legal costs and that if any application is made in relation to the costs of the previous solicitor, Thomas Booler Lawyers (per Mr Marcel Joukhador), the parties are to have liberty to seek a personal costs order against those solicitors pursuant to s 99 Civil Procedure Act 2005 (NSW).

4. Note the provisions of paragraphs 3-6.

5. The net sum remaining after the deductions referred to in paragraph 2, namely the sum in paragraph 4, is to be paid direct to the NSW Trustee & Guardian for investment until the plaintiff’s 18th birthday.

6. Having regard to the manner in which the report of Dr Akkerman has failed to diagnose the plaintiff’s condition in a manner consistent with the Code of Conduct, refer Dr Akkerman’s report to the Health Care Complaints Commission.

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Decision last updated: 22 November 2017