NSW Supreme Court Approves Settlement for Minor with Cerebral Palsy

The Court approved a settlement agreement for a minor with cerebral palsy, considering the interests of the plaintiff and the advice of legal experts.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v [NAME] [2020] NSWSC 1281 Hearing dates: 21 September 2020 Decision date: 21 September 2020 Jurisdiction: Common Law Before: Ierace J Decision: Orders made in terms of consent orders numbered (1) to (9) inclusive. Catchwords: CIVIL PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of [NAME] – whether proposed settlement is in the interests of the plaintiff Legislation Cited: Civil Procedure Act 2005 (NSW), s 76 Cases Cited: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 Category: Principal judgment Parties: [NAME] bht [NAME] (Plaintiff) [NAME] trading as [COMPANY] (Defendant) Representation: Counsel: [redacted] [NAME] (Defendant)

Solicitors: [redacted] [NAME] (Defendant) File Number(s): 2018/348731

Judgment 1. HIS HONOUR: This is an application for approval of a proposed settlement of a claim for damages commenced on behalf of [NAME], the plaintiff, who is presently aged 8 years old, by his father, [NAME] ("[NAME]"), as his tutor, against the defendant, the [NAME]. 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 [NAME], if an agreement for a compromise or settlement is made, that person is not bound by it unless it is approved by the Court.

2. The plaintiff has severe spastic dystonic quadriplegic cerebral palsy with visual and intellectual deficits, which he claims is consequent to perinatally-caused anoxia. The plaintiff's birth was induced at [COMPANY] on 23 May 2012 by the administration of a medication known as Prostin, that date being nine days after his mother's expected date of confinement. His mother and he were discharged from hospital on 29 May 2012. His condition was discovered by his paediatrician, [NAME], following examinations later that year, and the plaintiff suffering spasms from February 2013.

3. In a statement of claim filed on 13 November 2018, the plaintiff alleged that the defendant breached a duty of care owed to the plaintiff to ensure that the plaintiff's operation and all medical services were performed with reasonable care and, pursuant to s 5B(1) of the Civil Liability Act 2002 (NSW), to take reasonable precautions against risk of harm that was foreseeable and not insignificant. The plaintiff alleged that these duties were breached in a number of ways, including by a failure to properly assess the plaintiff's mother prior to the administration of Prostin, to administer it in accordance with the guidelines of both [NAME] and the manufacturer, and by its administration in spite of significant cardiotocography (CTG) abnormalities being recorded.

4. The injury allegedly resulted in the plaintiff having profound physical and mental disabilities, including developmental delay, epilepsy, brain damage, vision impairment, reduced ability to walk, sit and to be left alone. He is obliged to rely upon others to provide domestic care and assistance and has a continuing requirement for medical, rehabilitation and pharmaceutical treatment. It is unnecessary, in my view, to further set out the specific impacts that the plaintiff's condition has, and is likely to have, on his quality of life.

5. In an affidavit affirmed on 14 September 2020, the plaintiff's solicitor, [NAME], stated that following mediation between the parties on 7 August 2020, the offer of settlement was made, being a certain sum plus legal costs. The consent judgment was signed by the parties on that date. It is proposed that, if the settlement is approved, the monies would be paid into court until a private trustee is appointed. [NAME] has explained to [NAME] his understanding of the issues and risks involved in litigation if the matter is not settled and the benefits of the proposed settlement. He concluded that he has recommended to [NAME] that the settlement be accepted.

6. In an affidavit affirmed on 3 September 2020, [NAME] confirmed that he has received advice to the effect that the proposed settlement is appropriate and that he has instructed the plaintiff's solicitors to seek the Court's approval to accept the settlement. [NAME] also states that he understands that if it is approved by the Court, it will be a full and final settlement for the plaintiff.

7. I have had the benefit of reading a confidential joint memorandum of advice as to the merits of the proposed settlement, prepared by senior counsel for the plaintiff who is a specialist in personal injury matters, [NAME], and his junior, [NAME]. 8. [ADDRESS]'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 disabled 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. [ADDRESS] will consider for itself whether the compromise will be beneficial to the disable[d] person: Somerset v Ley [1964] 1 WLR 640 …" 1. [ADDRESS] 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 that which is the proposed settlement amount.

2. Taking into account the confidential joint advice by the plaintiff's Senior Counsel and junior counsel, and the affidavits of his instructing solicitor and [NAME], I am satisfied that the proposed settlement is in the best interests of the plaintiff.

3.

Accordingly, I make orders in terms of the draft consent orders numbered (1) to (9) inclusive.

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