Vakararawa v Northern NSW Local Health District

[2022] NSWSC 392

Supreme Court

New South Wales

Medium Neutral Citation:

Vakararawa v Northern NSW Local Health District [2022] NSWSC 392

Hearing dates:

1 April 2022

Date of orders:

1 April 2022

Decision date:

01 April 2022

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) The Court approves this settlement pursuant to s 76 of the Civil Procedure Act 2005 in accordance with the terms of the consent judgment dated 31 March 2022, signed by the legal representatives from both parties.

(2) I make orders in accordance with paras 1 and 5 of the terms of the consent judgment dated 31 March 2022.

(3) I note the agreement between the parties set out in paras 2, 3, 4, 6, 7, 8, 9 and 10.

(4) In accordance with s 77 of the Civil Procedure Act 2005 (NSW), the Court orders the defendant to pay the judgment sum referred to in para 1 of the consent orders less any authorised deductions for which the consent judgment provides into court, pending an application for the appointment of a trustee to hold the judgment sum on trust and for investment for the benefit of the plaintiff.

Catchwords:

CIVIL PROCEDURE — approval of settlement — by consent — whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity — settlement approved

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Elderfield v Transport Accident Commission [2010] VSC 116; (2010) 55 MVR 206

Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Somerset v Ley [1964] 1 WLR 640

Category:

Principal judgment

Parties:

Nikotimo Valentini Vakararawa by his tutor Carolyn Vakararawa (nee Mackney) (Plaintiff)
Northern NSW Local Health District (Defendant)

Representation:

Counsel:
D Higgs SC with I McGillicuddy (Plaintiff)
M Windsor SC (Defendant)

Solicitors:
BPC Lawyers (Plaintiff)
McCabes (Defendant)

File Number(s):

2019/187718

Publication restriction:

None

REVISED EX TEMPORE Judgment

1. The plaintiff pursues proceedings against the defendant arising out of the alleged failure of the defendant to properly treat him when he attended at the Lismore Base Hospital on 16 June 2016 and whilst he remained in hospital.

2. Proceedings were commenced by the plaintiff against the defendant on 17 June 2019 alleging negligence on the part of the defendant. The proceedings are listed for hearing for ten days, commencing 11 April 2022. The parties have agreed to settle the proceedings.

3. As the plaintiff is a person who is under legal incapacity, any settlement must be approved by me pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW).

4. The Court’s function on any such application is essentially protective. I must review all of the evidence presented on the application and be satisfied that the proposed settlement is for the plaintiff’s benefit. ^[1] It has been held that the question of whether any settlement is for the benefit of the person under a legal incapacity may turn on whether there is a sufficient prospect of obtaining a more favourable judgment such as to outweigh the value of the certainty which arises from a settlement. ^[2] I keep in mind those principles in considering this particular settlement.

   1. Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

   2. Elderfield v Transport Accident Commission; [2010] VSC 116; (2010) 55 MVR 206.

5. The plaintiff is currently 45. On his case, on 16 June 2016, he presented to the emergency department of the Lismore Base Hospital with stroke‑like symptoms. He is, of course, young to have suffered a stroke but the evidence suggests that a stroke can occur at any age. There is also expert evidence to the effect that, provided that he was administered prompt and appropriate treatment, he may have made a full recovery from the symptoms from which he was suffering.

6. The plaintiff’s case against the defendant is that he was not given such prompt and proper care, having regard to the symptoms with which he was presenting.

7. The plaintiff’s case is that he ought to have been assessed and treated with intravenous thrombolysis in order to dissolve the clot in his large right/middle cerebral artery within hours of him presenting with symptoms at the hospital. It is further suggested that he ought to have been transferred to a tertiary hospital such as the Gold Coast Hospital for surgical clot retrieval.

8. As it happens, during his stay at the Lismore Base Hospital, his condition deteriorated, and thrombolysis was undertaken at 9.45am the next morning; that is, 9.45am on 17 June 2016.

9. Further, an attempt was made to transfer him to the Gold Coast Hospital for surgical clot retrieval but the hospital refused to accept him on the basis that it was by then too late to undertake such a process.

10. The consequence of the stroke has been that the plaintiff now suffers from a severe and disabling brain injury which has led to significant cognitive impairment as well as physical disability and behavioural problems, including impulsivity, disinhibited behaviour, alcohol abuse and, indeed, episodes of violence. He is not able to work and requires extensive care. Sadly, his behaviour has been such that his wife, the tutor, is no longer able to live with him because of ongoing safety concerns.

11. I am informed by Mr Higgs SC that there is no antagonism or animosity on the part of his wife, the tutor, but that it has been necessary for her to remove herself from where the plaintiff is residing because of ongoing safety concerns only. She thus remains an appropriate person to continue to act as tutor.

12. In support of the application for approval, the plaintiff relies on an affidavit of his solicitor, Kate Louise Henderson, dated 30 March 2022, attached to which is extensive medical evidence.

13. The plaintiff also relies on a confidential advice of his counsel, being David Higgs SC and Ian McGillicuddy. In the usual way, that advice has not been provided to the legal representatives for the defendant, as it contains statements and views of counsel as to the strengths and weaknesses of the plaintiff's case for the purposes of me having a full understanding of the risks associated with this litigation.

14. The defendant did not rely on any other evidence on the application.

15. There is plainly a conflict between experts as to whether there has been a failure to take care on the part of the hospital. For example, Professor Mark Parsons, an expert retained on behalf of the plaintiff, offers an opinion that it was completely unreasonable and a major breach of the standard of care not to administer thrombolysis on 16 June 2016, suggesting that every stroke guideline around the world recommends this.

16. On the other hand, Dr Dane Chalkley, an expert retained on behalf of the defendant, opines that the emergency department management of the plaintiff on 16 June 2016 was in accordance with what would be regarded by a wide body of his peers as being competent professional practice.

17. Those experts met in conclave and produced a joint report. Whilst there may have been some agreement on some issues between the experts, at least on my analysis, they remain apart on the fundamental issue of whether the defendant was negligent.

18. At least in part, this is because there is a substantial issue between the parties as to how the plaintiff was presenting on 16 June and what advice was given in particular to the plaintiff's wife as to treatment options. There is some support for the defendant's position in the contemporaneous records and Dr Wagner’s recollection of events seems to be somewhat different to that of the plaintiff’s wife.

19. Having said that, it may be that if the evidence of the plaintiff’s wife and, indeed, all of the factual evidence presented on behalf of the plaintiff is accepted, the plaintiff would have good prospects of success. Indeed, the defendant recently served a report from a Dr Simon, who actually prepared his report in 2020, suggesting that the hospital had failed to exercise proper care in its management of the plaintiff.  This led to a motion pursuant to which the plaintiff sought to amend the statement of claim to add a further particular of negligence relating to the matters referred to by Dr Simon.

20. Again, I can only say that, on my analysis and having regard to some of the comments in the confidential advice, there is no certainty that that which Dr Simon suggested would have been accepted or that his opinion in some way would have been given precedence.

21. It is only necessary to emphasise that there remains a significant conflict between the expert evidence as to the liability of the defendant and much would have turned on the factual findings of any trial judge. On my analysis, this is a case which calls for compromise on the part of the plaintiff and compromise to a real and significant extent. It is not possible for me to determine at this stage which evidence would have been accepted but the risks of the plaintiff failing are real.

22. Of course, on the other hand, the risk to the defendant of the plaintiff succeeding are also very real, and I am satisfied that, if the plaintiff had succeeded, the plaintiff would have recovered a sum substantially higher than the amount of the settlement figure. No doubt, this is why the settlement has been achieved.

23. In terms of damages, again having regard to the evidence in the confidential advice I am satisfied that the potential damages that the plaintiff could receive are higher than the amount of the settlement. The main component is care. There are issues on life expectancy and the level of care the plaintiff would have required but I have no doubt that he will require substantial ongoing care.

24. The plaintiff is a man who suffers from not only cognitive impairment but also behavioural issues which, in my experience, always leads to additional sums on account of care. The cost of managing a plaintiff such as this is very high. I have not received an assessment from the defendant as to the likely damages which the defendant anticipated the plaintiff might receive if successful. Again, in my experience, the parties’ assessments of their own cases is sometimes reflective of their beliefs in the likely acceptance of their own evidence.

25. One of the risks that all parties must take account of is that successful cross‑examination of an expert can sometimes lead to concessions which were not anticipated during preparation of the case. Again, it is only necessary to say that, having regard to the material attached to the affidavit of Ms Henderson and the views expressed in the confidential advice, the proposed settlement of $4.5 million plus costs reflects a real discount on the amount that the plaintiff might have received if successful. However, it is an appropriate discount and it is a discount which is in the plaintiff’s interests to accept.

26. I am satisfied that the plaintiff could have no certainty about the outcome of this case and, in those circumstances, a settlement reflecting a discount for that lack of certainty is a settlement which is in the plaintiff’s best interests and indeed beneficial to the plaintiff.

27. I should add that I have reviewed the damages components in this case. As I said, the major component of damages is care.

28. As expected, the plaintiff also makes a claim for past and future economic loss. The plaintiff is only 45. It seems to me that the calculations for past and future economic loss would have been one of the least troubling aspects of the damages assessments, having regard to the plaintiff's earlier career. There may have been some problems with some of the documents supporting the claim but I am satisfied that there was a range.  The plaintiff was conducting his business as a self‑employed roof plumber, albeit he had only been doing that for a period of 18 months prior to his illness.  There might have been some issues with his availability of financial documents supporting his claim but I have regard to the evidence and the confidential advice.

29. I am satisfied that an appropriate figure, being the middle of the range, for past economic loss would have been $367,000 and an appropriate figure for future economic loss reflecting the middle of any range would have been $780,000.

30. In the circumstances, I am satisfied that the settlement is for the benefit of the plaintiff and should be approved.

31. I have been provided with a consent judgment and consent orders. I raised with Mr Higgs SC the question of solicitor/client costs or the difference between the total costs payable by the plaintiff and the costs the plaintiff might receive from the defendant. I am satisfied that it is not necessary to make a specific order about the additional costs that the plaintiff might have to pay at this stage. It seems that, having regard to all of the potential deductions, again as set out in the affidavit of Ms Henderson, there will be a deduction of approximately $750,000 from the figure of $4.5 million.  These are obviously amounts that would have to come out of any judgment, should the plaintiff have proceeded to a hearing.

32. In any event, they do reduce the amount of the settlement but the fact is that the plaintiff is required to pay moneys back to Centrelink, Medicare, NDIS and HCF.

33. I understand there is some suggestion that the income protection insurer may be looking for some refund or might be disinclined to pay amounts going forward. That is a matter which his lawyers will no doubt deal with and it is not a matter that I need to consider further for the purposes of the settlement. It is a matter of contract between the plaintiff and the income protection insurer as to what happens with any income protection payments made, already made or which might be made in the future.

34. Getting back to the costs issue, the point is that Mr Higgs SC has assured me that the usual process of dealing with additional costs is protected in the sense that the fund manager, whether it be the public trustee or someone else, is charged with the responsibility of ensuring that the costs are appropriate and only appropriate amounts are paid out of the principal sum invested on behalf of the plaintiff.

35. In the circumstances, I have signed the consent judgment.  It is not necessary for me to read it out. I will sign the consent judgment and place it with the papers.

36. I make the following orders:

1. The Court approves this settlement pursuant to s 76 of the Civil Procedure Act 2005 in accordance with the terms of the consent judgment dated 31 March 2022 signed by the legal representatives from both parties.

2. I make orders in accordance with paras 1 and 5 of the terms of the consent judgment dated 31 March 2022.

3. I note the agreement between the parties set out in paras 2, 3, 4, 6, 7, 8, 9 and 10.

4. In accordance with s 77 of the Civil Procedure Act 2005 (NSW), the Court orders the defendant to pay the judgment sum referred to in para 1 of the consent orders less any authorised deductions for which the consent judgment provides into court, pending an application for the appointment of a trustee to hold the judgment sum on trust and for investment for the benefit of the plaintiff. I will also sign those.

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Endnotes

Somerset v Ley [1964] 1 WLR 640.

Decision last updated: 05 April 2022