Babette Nolan (a pseudonym) v Western Sydney Local Health District

Supreme Court of NSW|2023-06-19|Before: Button J

Background

On [redaction], Mrs Patricia Nolan (a pseudonym) ("the tutor") was a patient at Westmead Hospital. She was heavily pregnant, and the pregnancy was "post mature", giving rise to increased risk. She gave birth by caesarean section at [redaction] on the latter date to her daughter Babette Nolan (a pseudonym) ("the plaintiff"). Tragically, the plaintiff, now [redaction] years of age, suffered a severe brain injury caused by insufficient oxygenated blood to her brain, with the result that she is profoundly disabled, and requires constant and intense care.
The plaintiff commenced proceedings in this Court against the Western Sydney Local Health District ("the defendant") on 31 August 2020. A mediation failed, but subsequent settlement negotiations succeeded. The parties are agreed that a very significant sum of money should be paid by the defendant to the plaintiff, the vast bulk of which is directed towards her future care. It is that agreement that I am asked to approve, pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW), as part of my role as Duty Judge.
The test is simply whether I am satisfied that the settlement is in the best interests of the plaintiff: see Karvelas (an Infant) v Chikirow (1976) 26 FLR 381 at 382; Elliot v Diener (1978) 21 ACTR 21 at 22; and Robinson v Riverina Equestrian Association [2022] NSWSC 1613 at [5].

Approval

Turning to my determination, I accept all that was said from the Bar table, and in the confidential advice, on behalf of the plaintiff. Speaking generally, I have had many years' experience of the unpredictability of litigation, and the fact that an allegation that may seem strong or weak when one reads a bundle of papers in Chambers may turn out to be the complete opposite after the giving of oral evidence and, in particular, cross-examination. Furthermore, I accept that this particular claim has its complexities and points of real contention. Finally, the phenomenon of claims assertedly based upon catastrophic injuries not having been established on the balance of probabilities, with the result that no damages whatsoever are awarded, is one with which I am well familiar.
I am amply satisfied that settlement of this claim as proposed by both parties is in the best interests of the plaintiff.
Separately, I was assured by a Bar table that was patently expert in this area of law that all of the ancillary orders that I was asked to make are in the interests of justice.
Finally, I see no harm in this judgment being placed on Caselaw, but I think that there should be some redaction in order to protect the privacy of the plaintiff and her family. I will be guided by the parties about that question before publication.

Orders

I therefore make the following orders: 1. Pursuant to section 76(3) of the Civil Procedure Act 2005, the Court approves the settlement of this matter on the terms set out in this Short Minutes of Order. BY CONSENT and without admission of liability: 1. Judgment for the plaintiff in the sum of [redaction] plus costs as agreed or assessed (Judgment Sum). 2. The defendant shall be at liberty to deduct and pay from the Judgment Sum any moneys payable or repayable by the plaintiff to any person or body whether in respect of Social Services (Centrelink) or Medicare Benefits or National Disability Insurance Scheme benefits or otherwise concerning which any demand or notice has been or may be served on or given to the defendant and also any moneys paid or payable pursuant to the Social Security Act, Health and Other Services (Compensation) Act 1995, the Health and Other Services (Compensation) Care Charges Act 1995 or the National Disability Insurance Scheme Act 2013. 3. The Court authorises the defendant to deduct from the Judgment Sum the amount $1,072,285.06 in respect of expenses met by the NSW Department of Communities & Justice referred to in its email of 27 February 2023 3:06pm to Dhavni Patel and to pay those monies to the NSW Department of Communities & Justice. 4. Pursuant to s 77(2) of the Civil Procedure Act 2005, the Judgment Sum specified in paragraph 2 less any deductions authorised pursuant to orders 3 and 4 above is to be paid into Court, pending an application by the Tutor to appoint a fund manager over those funds. 5. The plaintiff by her Tutor undertakes and agrees to pay out of the Judgment Sum any moneys payable or repayable by the plaintiff to any person or body whether in respect of Social Services (Centrelink) or pursuant to the Health and Other Services (Compensation) Act 1995 or otherwise which may not have been deducted by the defendant pursuant to paragraph 3 hereof and also to pay to the parties entitled all outstanding medical, hospital, ambulance and other out of pocket expenses. 6. No interest shall be payable on the judgment herein if said be paid within 28 days after: 1. an order of the Court approving these Terms of Settlement; or 2. an order of the Court directing where the judgment is to be paid; or 3. receipt of Consent Judgment/Orders sealed by the Court approving settlement and directing payment of the judgment to any person; or 4. receipt by the defendant of a notice concerning any charge repayable to the Department of Social Security (Centrelink); or 5. receipt by the defendant of a notice from the Managing Director of Medicare Australia under Section 24 or 25 of the Health and Other Services (Compensation) Act 1995; or 6. if the defendant has been notified that there are moneys owing to the National Disability Insurance Agency (NDIA), a Recovery Notice from NDIA informing it of the amount of the payback; or 7. if the defendant has been notified of any moneys repayable to any other person or body, receipt by the defendant of account details necessary to make that repayment; or 8. if payment is ordered to the NSW Trustee and Guardian receipt of electronic funds transfer account number from the NSW Trustee and Guardian. whichever is the later. 1. No interest shall be payable on the costs of these proceedings as agreed or assessed referred to in paragraph 2 above if the said costs are paid within 28 days of: 1. (a) the date on which the said costs have been agreed to by the parties; or (b) receipt by the defendant of a Certificate as to Determination of costs pursuant to s.70 Legal Profession Uniform Law Application Act 2014 following assessment of costs; (c) within 28 days after the receipt of an Authority to Receive satisfactory to the defendant, whichever is the later. 1. The plaintiff by her Tutor acknowledges that in accordance with Section 22 of the Health and Other Services (Compensation) Act 1995, the plaintiff has been informed of a possible liability to pay amounts under the said Act or under the Health and Other Services (Compensation) Care Charges Act 1995. 2. The plaintiff by her Tutor acknowledges that the defendant has elected to exercise its right to make a 10% advance payment to Medicare Australia and to pay the balance of the judgment amount to the plaintiff. 3. These Terms not to be disclosed other than as necessary: 1. to fulfil the requirements of the Health and Other Services (Compensation) Act 1995 and Centrelink and/or; 2. for the defendant to seek to recover from any party person or body, in whole or in part, amounts paid to the plaintiff pursuant to these Terms and/or; 3. as required by law.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2023

At a glance

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Judgment (5 paragraphs)

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