Usama v Western NSW Local Health District

[2023] NSWSC 1339

Supreme Court

New South Wales

Medium Neutral Citation:	Usama v Western NSW Local Health District [2023] NSWSC 1339
Hearing dates:	20 October 2023
Date of orders:	20 October 2023
Decision date:	20 October 2023
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The settlement is approved with the funds to be paid into court.
Catchwords:	CIVIL PROCEDURE — plaintiff has significant neurocognitive impairment and under legal incapacity — plaintiff represented by tutor — settlement reached — application for court approval of settlement — consideration of whether settlement is in the best interests of the plaintiff — medical negligence — plaintiff alleges that stroke was misdiagnosed as carpal tunnel syndrome
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 76, 77
Category:	Principal judgment
Parties:	Aqsa Usama by her litigation tutor Anwar Usama (Plaintiff) Western NSW Local Health District (Defendant)
Representation:	Counsel: H Chiu with A Quinlivan (Plaintiff) Solicitors: Carroll & O’Dea Lawyers (Plaintiff) Minter Ellison (Defendant)
File Number(s):	2022/180044

ex tempore JUDGMENT (REVISED)

1. I am asked to approve a settlement under the provisions of s 76 of the Civil Procedure Act 2005 (NSW).

2. The claim is one for damages for personal injury for medical negligence arising from the circumstances in which the plaintiff suffered a stroke relatively soon after giving birth to her second child.

3. The settlement requires approval to be legally effective because it is common ground, supported by the evidence which has been read before me, that due to the effects of the stroke, amongst other disabilities, the plaintiff has suffered a significant neurocognitive impairment which makes her unable to manage her own legal and financial affairs without significant assistance.

4. Her husband Anwar Usama is her tutor, and he has appeared before me today by audio-visual link. He has also affirmed an affidavit on 10 October 2023 deposing to his contentment with what is proposed having regard to the advice he has received and his understanding of the issues in the case. Mr Usama confirmed orally today that he remained of that view.

5. The plaintiff’s cause of action fully crystallised on 17 June 2019 when an incipient stroke commencing on 16 June 2019 fully developed resulting in what must be described as a very serious injury indeed from which the plaintiff is left with very significant disabilities. I have already referred to the neurocognitive consequences of the stroke. She also suffered very significant physical consequences of that event.

6. The applicant was born in 1988 and was just 31 years of age at the time of the stroke. She is now 35 years of age, obviously still a young woman, married to her husband and the mother of two young children. It is obvious that the consequences of her stroke are very far-reaching indeed.

7. The plaintiff’s case is that the defendant, through its medical officer, misdiagnosed the plaintiff’s condition when she first presented on 16 June 2019. At that time her prominent symptoms related to some neurological disturbance in her left arm and the working diagnosis made then was one of carpal tunnel syndrome, no doubt on a hypothesis relating to the hormonal changes associated with her pregnancy. I have no doubt from the development of the stroke on 17 June 2019 that that was a misdiagnosis; what was occurring was the inception of her stroke.

8. The plaintiff’s case is that but for the misdiagnosis on 16 June 2019 an “acute stroke pathway” which had been adopted by the defendant would have been implemented. This would have involved performing sophisticated radiological investigations including a CT brain scan and a CT angiogram, which would have disclosed the developing stroke in sufficient time for her to be conveyed to a major teaching hospital in Sydney where appropriate operative treatment would have been carried out capable of nipping the developing stroke in the bud, if I can put it in those informal terms.

9. These cases are always very complex and there are issues going to the question of causation. I have had the benefit of the parties' medical evidence attached to the affidavit of the plaintiff's solicitor, Mr William Madden, sworn on 6 October 2023, which has been very carefully summarised and explained in the confidential advice of Mr Chiu and Ms Quinlivan of learned counsel.

10. There are also significant issues going to quantum, as one always finds in complex and serious cases of this kind. Those issues, it seems to me, relate primarily to the important question of whether and to what extent the plaintiff's life expectancy has been reduced by the medical and physical consequences of her stroke. Otherwise, there are differences of opinion expressed about important matters such as the necessary attendant care services required to support the plaintiff and, of course, the entitlement of the plaintiff to recover damages in respect of the loss of her ability to care for her children.

11. The primary question for me to determine is whether the proposed settlement is in the plaintiff's best interests. This is not a matter which can be determined precisely, depending, as it always does, on impressions formed from reading the material and a certain degree of conjecture about possible outcomes of the litigation were it to proceed to trial. There is no doubt that the sum proposed is a large one, and from my consideration of the material, I am satisfied that the settlement is in the plaintiff's best interests.

12. The outcome of litigation can never be accurately forecast, and uncertainty necessarily attends it. Even an apparently strong case on paper will not withstand the close examination necessarily given to it in the context of a contested hearing. Issues that appear to be open and shut in advance may prove very contestable at the hearing.

13. I am well satisfied, as I have said, that the sum proposed represents an appropriate amount of compensation for the plaintiff's very serious injuries having regard to issues to be determined in the case. From Mr Madden's affidavit I understand that there are deductions to be made, and he has set them out as accurately as he can at this stage.

14. The significant matters to be taken into account are that the applicant has been a participant in the National Disability Insurance Scheme and there is a statutory refund due to the National Disability Insurance Authority which has been set out in the affidavit as at 29 July 2023. There have, however, been the provision of services under that scheme since and that matter may, and probably will, have increased. The sum proposed is in addition to party and party legal costs and Mr Madden has set out his best estimate of the solicitor and client margin of the plaintiff's costs bearing in mind that the party and party costs have yet to be agreed.

15. What is proposed is that if I approve the settlement, as I will, that the defendant will be required to pay the net proceeds of the settlement into court pending an application made on behalf of the plaintiff in the Protective List for the appointment of a private trustee and manager of the plaintiff's financial affairs. Finalisation of the amount of solicitor and client costs will have to abide those orders.

16. Taking into account the deductions to be made and the consideration, as explained in the confidential advice, that the plaintiff's entitlements under the National Disability Insurance Scheme may be somewhat reduced by reason of the receipt of a large sum of damages, I remain of the view that the settlement is in her best interests and that approval is the appropriate order to make.

17. Under the provisions of s 76 of the Civil Procedure Act, I approve the settlement proposed in the form of the consent judgment signed by the solicitors for the parties dated 21 September 2023, which judgment has been handed up for my consideration. I pronounce judgment in accordance with paragraph 2 of the form of consent order. I note the matters recited and agreed between the parties as set out in paragraphs 3, 4, 5, 6 and 7 of the consent judgment. I note the agreement of the parties as to non-disclosure set out on page 3 of the consent judgment and I make the order for payment into court provided for in paragraph 8 of the consent judgment under s 77(3) of the Act.

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Decision last updated: 07 November 2023