Yu v Western Sydney Local Health District

[2016] NSWSC 1881

Supreme Court

New South Wales

Medium Neutral Citation:	Yu v Western Sydney Local Health District [2016] NSWSC 1881
Hearing dates:	16 December 2016
Date of orders:	16 December 2016
Decision date:	16 December 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The Court approves the compromise of the proceedings under section 76(3) Civil Procedure Act 2005 (NSW). By and with the consent of the parties, I order judgment in accordance with term 1 in the form of consent judgment. Under s 77(3) of the Civil Procedure Act I make the order in order 3 of the consent judgment. I note the agreement of the parties recorded in terms 2, 4, 5 and 6 of the consent judgment. I order that the judgment moneys after the deductions referred to in order 3 of the consent judgment be paid into Court and under section 77(3) of the Civil Procedure Act and s 69 of the New South Wales Trustee and Guardian Act, I order that the funds then be paid out to the NSW Trustee and Guardian. I direct that the orders may be entered forthwith and that the seal of the Court be affixed to the form of consent judgment signed by me and dated today. I direct that the opinion of Mr Romanick be placed in a sealed envelope marked “not to be opened except by order of a Judge of the Court".
Catchwords:	PROFESSIONAL NEGLIGENCE - medical negligence - catastrophic occurrence whilst being treated as inpatient in defendant's hospital – settlement – best interests of plaintiff – consent judgment approved
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 76, 77 Guardianship Act 1987 (NSW) s 25M NSW Trustee and Guardian Act 2009 (NSW) s 69
Category:	Procedural and other rulings
Parties:	Charmaine Yu by her tutor Laurie Yu (Plaintiff) Western Sydney Local Health District (Defendant)
Representation:	Counsel: E. Romanick SC with T. Hickey (Plaintiff) Bridges-Webb(Defendant) Solicitors: Stacks Goudkamp (Plaintiff) Curwoods Legal Services Pty Ltd (Defendant)
File Number(s):	2015/77086

ex tempore judgment (rEVISED)

1. The plaintiff by her tutor claims damages from the defendant for professional negligence relating to a catastrophic occurrence while she was being treated as an inpatient in the defendant's hospital. I have had the considerable advantage of reading the confidential written opinion of Mr Romanick SC in relation to the matter. Mr Romanick informs me that his opinion is agreed by his learned junior and his instructing solicitor.

2. I am satisfied that the sum proposed is an appropriate one and it would be in the plaintiff's best interests for me to approve the settlement. There are, I accept, very considerable issues in the case going to liability in terms of breach of duty, as well as causation and, not insignificantly, if those hurdles are overcome, damages, given especially that the plaintiff was at the time of the alleged negligence of the defendant already afflicted by a progressive constitutional disease and had suffered a cerebral accident for which she had been treated surgically by the hospital. It was that latter event that brought her to hospital where she was being treated as an inpatient recovering from brain surgery at the time of the event giving rise to the present claim. All of those considerations, as I have said, satisfy me that what is proposed is very prudent and, I will repeat, in the plaintiff's best interests.

3. The plaintiff's tutor is her brother who is a practising solicitor. He currently practises in Hong Kong, but returns to Australia frequently to visit his family, including his sister, who is still being treated as an inpatient in the defendant's hospital.

4. The New South Wales Civil and Administrative Tribunal made an order appointing the tutor as his sister's financial manager. That order was made under the terms of s 25M of the Guardianship Act 1987 (NSW) but subject to a notation that the financial manager is not authorised to deal with the estate until he or she has obtained all necessary authorities from the NSW Trustee and Guardian. Under s 69 of the NSW Trustee and Guardian Act2009 (NSW) a manager may, subject to any order of the Court or Tribunal, lodge with the Trustee and Guardian any money that comprises the whole or part of the estate of the managed person. I am satisfied, given the supervisory powers of the Trustee over the work of managers that it is appropriate, as proposed, that the settlement sum, after deduction of certain statutory charges, be paid to the NSW Trustee and Guardian.

5. I make the following orders:

1. The Court approves the compromise of the proceedings under section 76(3) Civil Procedure Act2005 (NSW).

2. By and with the consent of the parties, I order judgment in accordance with term 1 in the form of consent judgment.

3. Under s 77(3) of the Civil Procedure Act I make the order in order 3 of the consent judgment.

4. I note the agreement of the parties recorded in terms 2, 4, 5 and 6 of the consent judgment.

5. I order that the judgment moneys after the deductions referred to in order 3 of the consent judgment be paid into Court and under section 77(3) of the Civil Procedure Act and s 69 of the New South Wales Trustee and Guardian Act, I order that the funds then be paid out to the NSW Trustee and Guardian.

6. I direct that the orders may be entered forthwith and that the seal of the Court be affixed to the form of consent judgment signed by me and dated today. I direct that the opinion of Mr Romanick be placed in a sealed envelope marked “not to be opened except by order of a Judge of the Court".

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Decision last updated: 21 December 2016