Wells bht McGuffog v Graham; Wells bht McGuffog v Hunter New England Local Health District

[2020] NSWSC 965

Supreme Court

New South Wales

Medium Neutral Citation:

Wells bht McGuffog v Graham; Wells bht McGuffog v Hunter New England Local Health District [2020] NSWSC 965

Hearing dates:

23 July 2020

Decision date:

28 July 2020

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) The settlements referred to in the consent judgments in proceedings 1999/58782 and 2017/279799 are approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

(2) Orders made in accordance with the paragraphs numbered (1)–(11) inclusive of the consent judgments in proceedings 1999/58782 and 2017/279799 signed by the legal representatives of the parties.

(3) The judgment sums, less the deductions as set out in the consent judgments, to be paid into Court pending further order.

Catchwords:

CIVIL PROCEDURE – application for approval of settlements of personal injury and medical negligence proceedings commenced on behalf of person under legal incapacity – whether proposed settlements are in the interest of the plaintiff

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

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

Category:

Principal judgment

Parties:

Proceedings 1999/58782:
Cameron Aiden Wells bht Tanya Denise McGuffog (Plaintiff)
Donald Richard Graham (Defendant and Cross-Claimant)

Proceedings 2017/279799:
Cameron Aiden Wells bht Tanya Denise McGuffog (Plaintiff)
Hunter New England Local Health District (Defendant and Cross-Defendant)

Representation:

Counsel:
Proceedings 1999/58782:
Mr D Hirsch; Ms J Gumbert (Plaintiff)
Ms M Graham (Defendant)

Proceedings 2017/279799:
Mr D Hirsch; Ms J Gumbert (Plaintiff)
Ms J Hackett (Defendant)

Solicitors:
Proceedings 1999/58782:
Stacks Law Firm (Plaintiff)
Moray & Agnew (Defendant)

Proceedings 2017/279799:
Stacks Law Firm (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

1999/58782; 2017/279799

Judgment

1. HIS HONOUR: This is an application for approval of a proposed settlement of a claim for damages commenced on behalf of Cameron Aiden Wells, the plaintiff, by his mother, Tanya Denise McGuffog, as his tutor, against Donald Richard Graham and Hunter New England Local Health District in two separate proceedings. The application is made pursuant to s 76 of the Civil Procedure Act 2005 (NSW) (“the Act”), which provides that, in proceedings commenced on behalf of a person under legal incapacity, if an agreement for a compromise or settlement is made, that person is not bound by it unless it is approved by the Court. The claim for damages arises from a motor vehicle accident at Pacific Palms, New South Wales, in which Ms McGuffog was injured, whilst in the final term of her pregnancy with the plaintiff. Ms McGuffog was taken to Manning Base Hospital. It is alleged by the plaintiff that the hospital (the defendant in proceedings 2017/279799) was negligent in the care it provided on and shortly after Ms McGuffog’s arrival, in not properly monitoring the condition of the foetus. When a cardiotocograph was eventually done on the plaintiff, it indicated abnormalities consistent with foetal distress. The plaintiff was delivered by a caesarean section later the same day. The plaintiff suffered a degree of hypoxia prior to delivery.

2. The motor vehicle accident involved another vehicle, which was driven by Mr Graham (the defendant in proceedings 1999/59782), who admitted breach of duty for the accident, but denied causing the plaintiff’s injuries. The NRMA was the compulsory third party (“CTP”) insurer of Mr Graham.

3. An affidavit read on the motion, affirmed by the plaintiff’s solicitor, Digby Dunn, alleged that the plaintiff had mild physical and developmental issues when he was young as a consequence of the injuries. These included speech difficulties, which resolved with extensive therapy. The plaintiff continues to have intellectual and behavioural deficits. Elizabeth Carter, a vocational psychologist, in a report dated 20 February 2017, concluded as follows:

“In the event that work is found for [the plaintiff], in light of his ongoing difficulties, part-time employment would be the best that [the plaintiff] could expect, and he would require a high level of support even to achieve this level of occupational functioning …

However, even with a high level of support, the reality is that [the plaintiff] is likely to have difficulty retaining employment due to his marked cognitive, behavioural and psychological difficulties, as has been the case to-date.

In light of his history, current presentation, and other identified employment areas, it is my opinion that [the plaintiff’s] vocational prognosis is in fact for serial or long-term unemployment.”

4. The plaintiff commenced proceedings against Mr Graham in the District Court on 19 April 1999 (being proceedings 1999/58782). On September 2017, the plaintiff commenced proceedings in this Court against the Hunter New England Local Health District (being proceedings 2017/279799). On 18 December 2017, the motor vehicle accident claim commenced in 1999 was transferred to this Court. On 5 February 2018, the proceedings were directed to be heard together. The single issue in both is causation which, having regard to a number of reports that have been tendered before me, is very much a live issue.

5. On 19 April 2018, solicitors for Mr Graham filed a cross-claim seeking contribution or indemnity against Hunter New England Local Health District claiming that, if the plaintiff’s brain injury was caused, or contributed to, by hypoxia, it was caused by Hunter New England Local Health District. A court-ordered mediation has not resolved the matter.

6. The application for approval is made by way of a notice of motion that seeks orders pursuant to two consent judgments. The orders sought would involve findings of judgment for the plaintiff in each action, each in the sum of $1,650,000, and an order that the defendants pay the plaintiff’s costs as agreed or assessed, in equal shares. The judgment sums, less deductions as set out in the consent judgments, would be paid into Court, pending further order.

7. I have had the benefit of reading a confidential advice as to the merits of the proposed settlements, prepared by counsel for the plaintiff, Mr Hirsch and Ms Gumbert. In his affidavit, Mr Dunn expressed his view that the proposed settlements amounting to $3,300,000, together with recoverable legal costs, are reasonable in settling the plaintiff’s claims and are in his interest.

8. In an affidavit sworn on 14 July 2020, the plaintiff’s mother explained that she had received advice from Mr Dunn, Mr Hirsch and Ms Gumbert, who all advised that the proposed settlements represent a reasonable compromise when considering the risk of litigation. She stated that she understands that, if approved, the proposed settlements will constitute full and final settlement of both of the plaintiff’s claims, meaning that no further claims can be made, even if the plaintiff’s condition was to worsen. She requests that this Court approve the proposed settlements in both proceedings.

9. The Court’s function in a hearing pursuant to s 76 of the Act is protective in nature. In Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336, Hammerschlag J, referring to the legislative scheme in the Compensation to Relatives Act 1987 (NSW), observed, at [29]:

“The principle is that for the Court to grant approval for a compromise to be entered into by the disable[d] person it must form the view that it is beneficial to his or her interests. The compromise should be assented to by the tutor and there should be opinions from his or her legal advisers that they consider it to be so: Re Birchall. The Court will consider for itself whether the compromise will be beneficial to the disable[d] person: Somerset v Ley [1964] 1 WLR 640 ...”

10. The Court must take into account the possibility that an award of damages at the conclusion of a full hearing may deliver a greater quantum of damages than the proposed settlement amounts.

11. Taking into account the confidential advice by the plaintiff’s counsel and the content of the affidavits of his instructing solicitor and the plaintiff’s mother, I am satisfied that the settlements are in the best interests of the plaintiff, Cameron Wells.

12. Accordingly, I approve judgment in the terms set out in the paragraphs numbered (1)–(11) in each consent judgment.

Orders

13. I make the following orders:

1. The settlements referred to in the consent judgments in proceedings 1999/58782 and 2017/279799 are approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

2. Orders made in accordance with the paragraphs numbered (1)–(11) inclusive of the consent judgments in proceedings 1999/58782 and 2017/279799 signed by the legal representatives of the parties.

3. The judgment sums, less the deductions as set out in the consent judgments, to be paid into Court pending further order.

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Decision last updated: 28 July 2020