Veal (by his next friend Watson) v Hehir
[2018] ACTSC 330
•29 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Veal (by his next friend Watson) v Hehir |
Citation: | [2018] ACTSC 330 |
Hearing Date: | 27 August 2018 |
DecisionDate: | 29 November 2018 |
Before: | McWilliam AsJ |
Decision: | See [78] |
Catchwords: | PRACTICE AND PROCEDURE - Court Procedures Rules 2006 (ACT) r 282 – application to approve a settlement involving a minor – where proceedings already discontinued prior to approval being sought – where litigation guardian no longer supports court approval of the settlement – whether settlement in the interests of the child |
Legislation Cited: | Civil Procedure Act 2005 (NSW) s 76 |
Cases Cited: | Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1050 |
Parties: | Callan James Veal, by his next friend Gillian Nicola Watson (Plaintiff) Michael Rosier (Second Defendant) John Hehir (First Third Party) Calvary Health Care ACT Limited Trading as Calvary Private Hospital (Second Third Party) Calvary Health Care ACT Limited Trading as Calvary Public Hospital (Third Third Party) |
Representation: | Counsel Ms H L Donohoe SC with Ms V Thomas (Plaintiff) Mr S Tierney (Second Defendant) Mr J Noonan QC with Ms R Kaye (First Third Party) |
| Solicitors Gil Jones Barker (Plaintiff) Ken Cush & Associates (Second Defendant) Kennedys (First Third Party) | |
File Number: | SC 240 of 2012 |
By an application in proceedings filed on 1 June 2018 and amended on 27 August 2018, the Court must determine whether to approve an agreement to compromise proceedings. The plaintiff is a minor and brings the proceedings by his next friend, and mother, Ms Gillian Watson.
The substantive claim involves allegations of professional negligence against Dr John Hehir, who was previously named as the first defendant. He is currently named as the first third party, joined by Dr Rosier.
The substance of the agreement reached while Dr Hehir was named as the first defendant, was that the plaintiff discontinue the proceedings against him, with no order as to costs. The parties then signed a deed of release in or about November 2014, and the plaintiff filed a notice of discontinuance on 25 November 2014. The deed of release is undated. It may have been signed after the discontinuance was filed, as one of the recitals in the deed states “the Releasor has discontinued the Claim against the Releasee”.
Almost four years later, the proceedings are still being pursued against other parties and it has transpired that the plaintiff and Dr Hehir never sought the approval of the Court in respect of the settlement. Such approval was required pursuant to r 282 of the Court Procedures Rules 2006 (ACT) (Rules).
Although by this application, Ms Watson has now brought the agreement in 2014 before the Court for approval on the plaintiff’s behalf, she no longer wishes to proceed with the agreement, believing that it is not in the plaintiff’s best interests.
Among other relief, the application seeks that the Court disapprove the agreement, grant leave to withdraw the notice of discontinuance or alternatively set it aside, and declare that the agreement is not binding on the parties to it.
Dr Hehir opposes the application. He seeks that the Court approve the agreement and submits that Ms Watson is obliged to support its approval, or at least to remain silent in the submissions put to the Court as to whether to approve the agreement.
Nature of the claim
The claim in its present form is for personal injury to the plaintiff, arising from his birth on 21 July 2006 and his subsequent care.
It is alleged the plaintiff contracted Group B Streptococcus (GBS) from his mother as he passed through the birth canal at delivery.
The allegations against Dr Hehir include, among other things, that a screening test should have been done at 35-37 weeks gestation or, alternatively, a risk-based approach taken by giving the mother antibiotics when in labour. Both allegations of the requirement for a screening test or the provision of antibiotics were contained in an earlier version of the pleading filed on 1 October 2014, although not in terms that were as specific as to timing.
Following the birth of the plaintiff, a gastric aspirate swab was taken from the plaintiff. Microscopic examination of the swab revealed a heavy growth of GBS.
The plaintiff alleges that on the basis of this swab, Dr Hehir should have administered antibiotics to him within the first hour or day of his life and further failed to advise the plaintiff’s parents of the risk of infection, and what to look out for to recognise the signs of infection in the plaintiff.
The earlier iteration of the pleading makes a similar allegation, in terms of a failure to advise the plaintiff’s mother of the availability of treatment by way of antibiotics to prevent the plaintiff from developing infection with GBS.
The plaintiff did develop GBS meningitis shortly after his discharge from hospital, and this resulted in irreversible sequelae including, among other things, brain damage, epilepsy and vision impairment.
Circumstances by which the agreement was reached
The plaintiff served an originating claim and statement of claim on Dr Hehir on or about 23 August 2012.
On 18 September 2014, the plaintiff’s solicitor sent an email to Dr Hehir’s then solicitor with an offer to discontinue the proceeding against Dr Hehir “on terms that there be no order as to costs”.
The plaintiff submits that the offer of discontinuance was based on the belief that the plaintiff suffered from late, rather than early, onset GBS and, as such, that causation would be difficult to establish against Dr Hehir.
In or about November 2014, Dr Hehir accepted the plaintiff’s offer of discontinuance.
As stated above, in or about late 2014, the parties executed a deed of release in respect of the discontinuance. It provided that the plaintiff’s proceedings be settled by the plaintiff executing the release and with Dr Hehir bearing his own costs in defence of the Claim “in full and final settlement of the Claim”. There were terms of confidentiality, but these were subject to a number of exceptions, which included to enforce the release or to the extent required by law.
Court’s Power
Under r 282 of the Rules, a settlement or compromise may only be entered into with the court’s approval. The words of the rule are as follows (emphasis added):
Person with legal disability—approval of settlement etc
(1)In a proceeding (or proposed proceeding) in which there is a claim for an amount (including an amount of damages) by or on behalf of a person with a legal disability, a settlement or compromise may only be entered into, and an amount paid into court may only be accepted, with the court's approval.
(2) The application for the court’s approval must be made by originating application, unless the application is made in a proceeding that has already been started.
Note 1 …
Note 2 …
(3) If the court approves a settlement, compromise or acceptance of an amount to be paid in court, the court may enter judgment for the amount of the settlement, compromise or payment in court.
(4)This rule applies whether the person is suing alone or with another party.
The rule reflects the inherent protective jurisdiction of the Court (described as the court’s parens patriae jurisdiction), exercised under the framework provided for by the rules and statutes: Singh (by her next friend Singh) v Calvary Hospital Act Inc (No 2) [2009] ACTSC 57; 3 ACTLR 247 at [11]; Duffel v Duffel [2015] ACTSC 123 at [11].
The parens patriae jurisdiction is ancient, wide-ranging and far-reaching. It extends as far as necessary for the protection of children and those persons who from their legal disability cannot look after themselves and are in need of protection: Secretary, Department of Health and Community Services v JWB and SMB [Marion’s Case](1992) 175 CLR 218 at 258–9 per Mason CJ, Dawson, Toohey and Gaudron JJ, 278–80 per Brennan J.
From the words emphasised above in r 282, it may be seen that the rule reflects the Court’s power to protect the interests of a person under a legal disability, by maintaining full control over any settlement compromising their claim: Dietz v Lennig Chemicals Ltd [1969] 1 AC 170 at 189 per Lord Pearson.
The effect of the notice of discontinuance
The filing of the notice of discontinuance brought the proceedings as between the plaintiff and Dr Hehir to an end. It is thus necessary to consider whether the Court now has power to deal with the lack of approval.
The Court has inherent jurisdiction to set aside a discontinuance or abandonment of proceedings if the act constituting the discontinuance or abandonment was a nullity in the eyes of the law by reason of fraud or mistake: Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; 156 FCR 369 at [25], citing R v Moore [1957] 2 All ER 703; R v EssexQuarter Sessions Appeals Committee, Ex parte Larkin [1961] 3 All ER 930; R v Medway [1976] 1 All ER 527.
There is also authority in the Federal Court of Australia to the effect that the court has the power to set aside a discontinuance whenever the interests of justice dictate that that is the appropriate course: Applicant NACT of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 316 at [2]-[4] per Jacobson J; see also NACU of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1444; Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1050.
In FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, Gaudron J held (at 288) that where an order for dismissal does no more than effect a situation in which fresh proceedings may be brought, then the administration of law and justice may be well served by a power to reinstate proceedings. Her Honour went on to refer to the power of a court of record to vary an order before the order is entered, and that this must rest on the notion that a court is not functus officio whilst there remains any judicial function which may be performed in relation to a proceeding, even if it be only that of ensuring that the final order correctly records the meaning of the court.
Given that there is no issue that the parties required the approval of the Court to resolve the proceedings as between them, the notice of discontinuance filed as part of that agreement was effectively a nullity. At the very least, it was filed subject to the outstanding exercise of a judicial function, being court approval of an infant settlement. It will be set aside.
Applicable principles
The settlement is an agreement that presently binds the plaintiff and Dr Hehir. However, if the agreement is not approved by the Court, then the effect is that the deed of release signed by the plaintiff is not binding on either party: see Fisher (by her tutor Fisher) v Marin [2008] NSWSC 1357 (Fisher) at [27] per Rothman J. His Honour was there discussing the position in New South Wales (NSW) where s 76(5) and 76(6) of the Civil Procedure Act 2005 (NSW) expressly state:
(5) An agreement disapproved by the court does not bind the person by whom or on whose behalf it was made.
(6) An agreement approved by the court binds the person by whom or on whose behalf it was made as if he or she were of full capacity and (if it was made by some other person on his or her behalf) as if that other person had made the agreement as his or her agent.
In the Territory, neither the Court Procedures Act2004 (ACT) nor the Rules contain these express consequences. However, given the words emphasised above in r 282, this must be the consequence of the Court disapproving an agreement and it is consistent with the common law position: Rhodes v Swithenbank (1889) 22 QBD 577 at 578-579.
Considerations relevant to approval or disapproval
The overriding principle is that the Court will base the approval or disapproval upon the formation of an opinion that the agreement is or is not beneficial to the interests of the person under the incapacity. It is for the Court, not the parties, to determine whether the compromise will be beneficial to the person under an incapacity: Re Ley’s Trusts [1964] 1 WLR 640; Permanent Trustee v Mills[2007] NSWSC 336; 71 NSWLR 1.
The principle to be applied is as set out in Elliott (by his next friend) v Diener (1978) 21 ACTR 21 (Elliott), in which Blackburn CJ said:
I am obliged to repeat what I said in Karvelas v Chikirow (1976) 11 ACTR 22. The solicitor says in his affidavit that he has considered what would be for the benefit for the infant; but that is not enough. The test of benefit to the infant is not whether the sum is adequate and reasonable. The matter is not to be decided by the plaintiff’s own solicitor as if he were a judge awarding damages after a contested hearing. The question which counsel or solicitor for the plaintiff has to decide, when considering a compromise of an infant’s claim, is whether the prospect of getting a greater sum by rejecting the present offer is good enough to outweigh, significantly, the risk of not getting any more. There may be various factors in such a decision, sometimes present and sometimes not; for example, the importance of termination of proceedings may be great for some plaintiffs and insignificant for others. The question of costs, also, will usually be significant. The decision is peculiarly one for experienced counsel and solicitors. The opinion of the next friend will seldom be of any importance; never, indeed, unless he is carefully advised as to the real question to be decided, and in particular that his own interests are totally irrelevant.
Dr Hehir also drew attention to the principle that when the inherent parental jurisdiction is being exercised in a protective sense, as opposed to a custodial sense, the child’s welfare is not paramount, and the rights and interests of the child must be balanced against the competing rights of others. Dr Hehir relied upon Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6 (Smith) at [10]-[15] per Brereton J and the authorities there-cited.
However, the notion that the court was engaged in a “balancing exercise” was conceded by the parties in that case, and the Secretary was not granted leave to argue to the contrary on appeal that the child’s interests were paramount: Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206; 95 NSWLR 597 at [40]-[43]. The facts of the case before Brereton J were also very different, involving a public awareness campaign about a missing child and the issue for the court at first instance was whether to grant an injunction to restrain a publication containing details about the child being in care. The principles Brereton J was discussing in Smith were in the context of a very different aspect of the discretion being exercised, albeit under the umbrella of a court’s protective jurisdiction.
In the present case, the issue is whether to approve an agreement made between an adult and a child. It can be assumed that Dr Hehir has formed the view, on advice, that the agreement is in his interests. I do not consider that in these circumstances, the Court then balances or weighs Dr Hehir’s interest in having the agreement approved against those of the child. Elliott has been repeatedly followed, including in the New South Wales jurisdiction where Smith was decided: see, for example, Yu Ge (by her tutor Tao Ge) v River Island Clothing Pty Ltd and Ors [2002] NSWSC 28; Fisher at [36]-[37]. I propose to follow the established principle set out in Elliott above, save as to one matter.
Blackburn CJ stated (in the passage set out above) that the opinion of the next friend will seldom be of any importance, and never unless the next friend is carefully advised as to the real question to be decided. However, subsequent authorities such as Fisher at [33] have indicated a willingness to consider as one factor, the attitude of the tutor and her counsel before the Court.
By the orders sought in the application as amended, I am aware of the fact that the next friend does not support approval. Here, even if the Court took such attitude into account, as Ms Watson has not given affidavit evidence, the confidential joint opinion in evidence from senior and junior counsel experienced in the area of professional negligence will be given greater weight.
Whether the plaintiff can make submissions against approval
Dr Hehir maintains the deed of release contained an implied term that imposed a “duty of cooperation” on each of the parties. Such a duty can be defined in what is known as the ‘Butt’ formula, after the case in which the principle was stated, Butt v M’Donald (1896) 7 QLJ 68, 70-71:
It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract.
Dr Hehir submits that the plaintiff’s next friend is contractually required to do all things necessary on her part to enable Dr Hehir to have the benefit of the contract of settlement, which was reached. He submits this means the plaintiff’s next friend is bound contractually to support the approval of the agreement, or at least not to take steps to advocate against approval of the agreement.
The plaintiff accepts there was an implied term, or obligation, on the parties to the settlement agreement to bring the agreement before the court for approval. The plaintiff says that the plaintiff’s next friend has now fulfilled this obligation. She is not obliged by the implied term to submit to the Court that it ought to approve the Compromise Agreement.
In Fisher, Rothman J was faced with a similar issue. His Honour stated at [39]-[40]:
The difficulties arise because, it would seem, that having offered the Compromise, which was accepted, the plaintiff, through her tutor, is bound by a contract, one of the terms of which would be that the plaintiff would support the grant of approval to the agreement. That term, if not expressed in the agreement, would necessarily be implied, because it is the only basis upon which efficacy can be given to the agreement.
Notwithstanding the foregoing, which was, in part, raised by the Court during the course of submissions, neither party suggested I ought not hear submissions from the plaintiff opposed to the approval of the agreement, or seeking its disapproval. Ultimately, the parties, to their credit, took the view that the nature of the parens patriaejurisdiction, exercised by the Court, required the Court to hear all submissions, whether or not such submissions would, in the ordinary course, be open to a party. That, in my view, is the correct position.
The Court is not here determining whether there is any breach of an implied term in the agreement between the parties (and that is why the Court would not make any declaration sought as to what were express or implied terms of the agreement and what they obliged a party to do).
Rather, the Court is determining whether to approve the agreement in the exercise of its parens patriae jurisdiction. As part of that task, the Court is entitled to ask questions of the legal representatives, who have duties of candour as officers of the court. On that basis, the Court can entertain submissions by the plaintiff that the agreement should not be approved.
Evidence before the Court
The evidence included a schedule of correspondence, filed 21 August 2018, affidavits of the respective instructing solicitors for each party to the application, and a confidential joint opinion from senior counsel and junior counsel.
There was also a Court Book containing significant medical evidence before the Court. Before considering the key aspects of the medical evidence, it must be emphasised that none of the expert witnesses whose reports have been served were cross-examined and the principles that the Court applies do not require the Court to form any view about liability. What the Court is determining is whether the prospect of getting a greater sum by rejecting the present ‘walk away’ offer is good enough to outweigh, significantly, the risk of not getting any more.
In summary, the reason for the change in the plaintiff’s position is that previously, the plaintiff had been advised of difficulties with causation in the allegations against Dr Hehir, arising from a distinction between early and late onset sepsis. However, some of the expert medical evidence obtained in 2016 and 2017, and led on the application, now suggests that there may not be any significant distinction between early and late onset sepsis, so that the plaintiff’s view about causation in respect of Dr Hehir’s conduct has changed.
The plaintiff submits the medical evidence establishes that Dr Hehir’s failure to discuss and/or recommend GBS screening, or to discuss a risk based approach to GBS with the plaintiff’s mother, was a departure from acceptable standards. The plaintiff relies on four expert medical reports – those of Associate Professor Hunt, Dr Lyneham, Dr Rasmussen and Associate Professor Challis.
Dr Hehir relies upon a report by Dr Curtis. Dr Hehir submits that the conclusions to be drawn from the medical evidence are that there is no clear opinion in support of the propositions that Dr Hehir should have delivered intrapartum antibiotics to the plaintiff’s mother during labour (and that they would have made a difference to the development of late-onset GBS disease), or that Dr Hehir should have taken any steps in relation to treating the plaintiff after his birth and that any such treatment would have made a difference to the development of the disease.
As a consequence, there are real issues of liability, relating to whether Dr Rosier or hospital staff provided any adequate warning or information to the plaintiff’s parents regarding risk factors and if such warnings would have made a difference to the outcome.
Associate Professor Hunt
Associate Professor Hunt is a neonatologist and prepared a report dated 20 June 2016. Although Associate Professor Hunt’s opinion was sought in relation to Dr Rosier, the second defendant, he noted:
Callan was clear colonised with GBS at delivery, as evidenced by the gastric aspirate result. This was probably a consequence of transmission of the organism from his mother during delivery (vertical transmission - from mother to baby). Invasive disease did not occur until day 9-10 making Callan’s case one of late-onset GBS sepsis and meningitis. Definitions of early and late-onset infection are variable in the literature…
The distinction of early versus late onset is somewhat irrelevant in this case, as the distinction is designed to lend insight into cause of infection. Early onset infections are thought to arise from vertical transmission, whilst late-onset infections are thought to arise from horizontal transmission (infection from others, or from the environment).
In Callan’s case, the late-onset sepsis is almost certainly a result of vertical transmission, in that Callan was colonised at birth, but his colonisation did not become invasive disease until around day 9.
The plaintiff submits this opinion was crucial as Associate Professor Hunt’s opinion revealed little relevance to the distinction in Callan’s case between early-onset and late-onset GBS sepsis.
Dr Hehir submits Associate Professor Hunt’s report does not materially advance the plaintiff’s case against Dr Hehir. Any criticisms in the report go to the counselling and warnings that ought to have been provided to the plaintiff’s parents and this was the responsibility of Dr Rosier, not Dr Hehir. Dr Rosier was the plaintiff’s paediatrician and Dr Hehir, the obstetrician.
Dr Hehir points particularly to the question asked of Associate Professor Hunt, namely what an ordinary skilled specialist paediatrician would have said to the plaintiff’s parents by way of warnings, and that any subsequent references he made to ‘medical staff’ should be read in light of that question.
Dr Lyneham
Dr Robert Lyneham was an obstetrician who had prepared a report in November 2010. His view was that Callan was colonised at birth with GBS and the source of this colonisation was his mother. Dr Lyneham opined that, just as intrapartum prophylactic antibiotics were effective in the prevention of early onset GBS sepsis, it was reasonable to conclude that had such antibiotics been issued to Callan’s mother they too would have been effective in preventing the colonisation.
Dr Lyneham had considered prophylactic intrapartum antibiotics to be ineffective in the prevention of late-onset GBS. However, the plaintiff had cause to revisit that view, because of Assoc. Professor Hunt’s subsequent opinion that the distinction between the two was not relevant in this case.
Dr Lyneham’s opinion was that, as the GBS status of the plaintiff’s mother was unknown at the time of labour, a risk based approach should have been adopted. This would have involved antibiotics being administered when she was transferred to the labour ward in labour or, at the latest, antibiotics should have been administered once “the Mother’s membranes had been ruptured for 18 hours.”
Dr Hehir says that Dr Lyneham’s conclusion was not supported by reference to any literature and that it was expressly “subject to review by a neonatologist or paediatrician.”
Dr Hehir’s position is that, in terms of a risk-based approach, there is strong evidence that adequate antibiotic care could not be achieved unless it was given at least four hours prior to delivery. In this case, the plaintiff was born 20.5 hours after the rupture of the mother’s membranes, meaning that if antibiotics were administered at the 1 hour mark, it would not have been done so four hours before delivery.
Dr Rasmussen
Dr Rasmussen, gynaecologist and obstetrician, provided a report in August 2017, which included a view that a reasonably competent treating obstetrician would discuss with his or her patient the issue of GBS screening and make a recommendation for either an antenatal swab and culture based approach to screening, or a risk factor based approach.
Dr Rasmussen also noted:
A vaginal swab and culture is recommended at around 36-37 wks [sic] gestation. This is in part because vaginal colonisation as detected by swab and culture can be ‘intermittent’ and a swab performed closer to delivery is most likely to reflect the situation at delivery and in part because the swab and culture takes at least 24hrs [sic] to return a positive or negative result.
Both parties agree that Dr Hehir did not discuss antenatal GBS screening with the plaintiff’s mother at any time.
Dr Hehir submits that Dr Rasmussen’s report ignores that the plaintiff had late onset, rather than early onset, GBS, resulting in very little weight being able to be afforded to Dr Rasmussen’s report.
Dr Hehir further contends the risk based approach identified by Dr Rasmussen lacked utility in circumstances where any antibiotics administered at the 18 hour mark would not have had time to take effect, given imminent delivery.
Associate Professor Challis
Associate Professor Challis, an obstetrician and gynaecologist, commented on the issue of administering antibiotics at the 18 hour mark, approximately two hours prior to the plaintiff’s birth. Whilst Assoc. Prof. Challis conceded that it was unclear whether this would have been adequate treatment, “discussion should have occurred with the paediatrician as to whether the baby required further treatment after birth.”
Assoc. Prof. Challis went on to state:
It is not clear why Dr Hehir did not call for a paediatrician to attend at the birth, or to attend the baby shortly after the birth in the setting of prolonged ruptured membranes without antibiotic cover, an instrumental delivery, and a tachycardic then bradycardic fetal heart rate. These multiple and well-known risk factors would have indicated a high likelihood for the need for neonatal resuscitation - which was in fact required. At my hospital all such deliveries would be routinely attended by paediatric medical staff… Even if Dr Hehir had not called a paediatrician for the birth as I believe he should have, he should have called a paediatrician to attend the baby who was sick enough to require admission to the SCN. I am not a paediatrician, but in my experience a paediatrician would usually start a baby on antibiotics in this scenario whilst awaiting results from cultures and other investigations.
Dr Hehir highlights the uncertainty regarding the effectiveness of issuing the antibiotics at the 18 hour mark, and contrasts that with the opinion of Associate Professor Starr (a paediatrician and infectious diseases physician who provided a report in April 2016 and more recent reports in 2018) that a single dose of antibiotics would not, on balance, have had an impact on the plaintiff and would not have eliminated the heavy growth of GBS subsequently recovered from his gastric aspirate.
Dr Hehir further submits that Assoc. Prof. Challis’ report was based on instructions that it was Dr Hehir who ordered the gastric aspirate and, as such, should have followed up on the results. This was a false assumption, as Dr Hehir did not request the gastric aspirate, but rather the Calvary private hospital records indicate it was the Calvary obstetrics resident who did so.
Professor Curtis
Professor Nigel Curtis is a specialist in paediatric infectious diseases with over 20 years’ experience. He is currently the Head of the Infectious Diseases Unit at the Royal Children’s Hospital in Melbourne and holds a Full Chair as Professor of Paediatric Diseases in the University of Melbourne.
Prof. Curtis’s report, dated 11 August 2016, is consistent with the opinions expressed by Dr Lyneham and Prof. Hunt that the plaintiff’s cause of GBS was vertical transmission during birth. He also confirmed that it was likely that if the plaintiff’s mother had been screened, she would have tested positive for GBS.
His view was that while intrapartum antibiotics markedly reduces the risk of GBS early onset disease, it does not reduce GBS late onset disease, which he described as infection in the infant occurring after the first 6 days of life.
Prof. Curtis also discussed the risks for babies who are GBS-colonised following mother-to-infant transmission during delivery. Only 1% of infants colonised with GBS develop invasive GBS disease. Of these, approximately two thirds are early onset and one-third are late onset.
Findings
It is clear that the medical evidence is complex and it will be a matter for the trial judge as to which opinions ought to be accepted and how to resolve the conflicts among the medical reports. What is apparent from the evidence is that the effectiveness of antibiotics, and the timing of them being administered either to the plaintiff or his mother, will be live issues.
Further, what role Dr Hehir’s conduct played, and the advice he gave (or did not give), in terms of the contribution to the ultimate manifestation of GBS meningitis in the plaintiff and his present disabilities, are also live issues. On the evidence before the Court, it cannot be said that the case against Dr Hehir is hopeless.
Bearing in mind the principles on the approval or disapproval of a settlement to which I have earlier referred, the circumstances of the claim being made by the plaintiff, and his interests, I am of the view that the prospect of obtaining a greater sum by rejecting the present compromise significantly outweighs the risk of not getting more. That is not a difficult conclusion to reach, given that the amount offered was not a payment of any money to the plaintiff, but rather a costs saving at an early stage, and there is no intangible benefit to the plaintiff in the proceeding being terminated, as the case is ongoing as against other parties, including as against Dr Hehir via a third party claim.
Dr Hehir urged upon the Court that consideration be given to the relative strengths and weaknesses of the case against another defendant. If there is a strong case against another defendant, and the case against Dr Hehir is weak, it was submitted that the Court would consider it appropriate to approve an agreement such as the release of Dr Hehir in question here. However, what a case looks like on paper, even in terms of the strength of a case against a particular party, and how it runs at trial, including questions of proportionality as between defendants, are matters that weigh against that submission, particularly when no offer of any compensation was made. Even if the Court were ultimately to find that Dr Hehir’s conduct was causative but only in a proportion of 1% liability as compared with others who are sued, the plaintiff would receive more money than has been presently agreed.
If the agreement is disapproved and the matter proceeds to trial, the medical evidence points to a real and substantial prospect of the plaintiff obtaining some compensation payable by Dr Hehir (even if only on a proportionate liability basis). If the agreement is approved, the plaintiff receives no compensation payable by Dr Hehir. I do not believe it is in the plaintiff’s interests to release Dr Hehir from the proceedings at this stage for the zero sum offered. It is not in the plaintiff’s interests for the Court to approve the agreement.
Costs
The plaintiff has been successful on the application. Costs being compensatory and in the discretion of the Court, I consider the application to be of a procedural type with no severable issue and where the usual order would be made that costs follow the event. In the event that either the plaintiff or Dr Hehir wishes to contend for a different order or bring to the Court’s attention matters that are outside the scope of the application but relevant to the question of costs, I will stay the costs order for seven days and the parties are to contact my chambers for appropriate directions within that time.
Conclusion
For the above reasons, the orders I make are as follows:
(1)The Notice of Discontinuance filed 25 November 2014 in respect of the first defendant is set aside.
(2)The Court disapproves the agreement formed by the acceptance by the first defendant of an offer of compromise made on 18 September 2014 by, or on behalf of, the plaintiff.
(3)The Court declares that the said agreement is not binding on any party to it.
(4)The first defendant, Dr Hehir, is to pay the plaintiff’s costs of the application, such costs not to be recoverable pending the conclusion of the proceedings.
(5)Order 4 is stayed for seven days.
(6)The plaintiff is granted leave to file a second further amended statement of claim, substantially in the form annexed to the application filed 20 August 2018.
| I certify that the preceding seventy eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 29 November 2018 |
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