Before the Court is an application for approval of a settlement of personal injury proceedings in which medical negligence is alleged, brought pursuant to s 76 of the Civil Procedure Act 2005 (NSW). The approval is necessary not only because the plaintiff is aged 7 years, but also because he is severely intellectually disabled as a result of suffering from cerebral palsy. His tutor in the proceedings is his mother, Ms Rosemary Buksh.
Background
The background of the matter may be shortly stated.
The plaintiff was born on 24 September 2008. By way of an amended statement of claim filed on 21 March 2011, he alleges that, in the days leading up to his birth, his mother attended hospital on a number of occasions, but was discharged each time. Eventually she was admitted to hospital, and her labour was protracted and difficult. At one stage she requested a caesarean birth, but that request was declined. A particular drug, syntocinon, was administered to her in order to facilitate the birth of the plaintiff. Eventually, a vacuum mechanism was used in order to effect birth. On delivery it was apparent that the plaintiff was very unwell. It is claimed that he had suffered hypoxia (deficit of oxygen), encephalopathy (an injury to the brain), and, ultimately, cerebral palsy (a disorder of movement and posture).
Buksh by his next friend Buksh v South Western Sydney Local Health Network [2016] NSWSC 649 | Case summary | Zoe
The claim of the plaintiff is that, considered overall, those engaged in his birth were professionally negligent, including with regard to the administration of medication, the use of the vacuum mechanism, and the location (in the ward as opposed to an operating theatre) in which various procedures were undertaken. In other words, he alleges that employees or agents of the hospital breached the duty of care that they owed to him.
He also alleges, of course, that that breach of duty caused his deficits, in the sense in which the law of torts understands that term.
By way of a defence of 15 March 2012, the defendant denies the allegations of the plaintiff. In a nutshell, its position was (and formally remains) that no person entrusted with the care of the plaintiff in the period leading up to his birth behaved inconsistently with the relevant professional standards, and furthermore that no act of such a person caused harm to the plaintiff. With regard to the latter question, I understand the position of the defendant to be that his undoubted deficits could have been the result of a pre-existing infection, and nothing to do with the care he received in the period leading up to his birth.
Evidence and submissions
A great deal of expert medical evidence has been obtained by the parties, and much of that obtained by the solicitors for the plaintiff was placed before me. Certainly, extensive investigations have been undertaken, not only with regard to the question of liability, but also with regard to the question of damages, and, in particular, the extent of care necessary in the future.
As things stand, the position of the plaintiff is that he suffers from very severe cerebral palsy. That has led to profound physical and intellectual deficits. He also suffers from epilepsy, and has an issue with vomiting; indeed, he has difficulties swallowing, and is fed through a gastronomy tube. It is extremely unlikely that he will attend any school, and he will never enjoy paid employment. His life expectancy has been shortened by many decades. He will require 24 hour care, whether that be in a specially equipped individual home or in a group home.
As I understand it, none of that is in dispute. Indeed, although there is some dispute about the extent of care that he will need to be provided in the future, and what would be appropriate and necessary, I do not understand there to be marked divergence between the experts with regard to the question of damages.
By way of the affidavit of the solicitor for the plaintiff, I was told that a mediation took place in September 2015. Although it was unsuccessful, negotiations between the parties surrounded it, and they continued after it came to a close. In the months since then, the negotiations have continued, coming to fruition recently by way of a settlement in a particular sum.
I was told, and I accept, that the solicitor for the plaintiff is very experienced in matters such as these. In her affidavit, she expresses her professional contentment with the settlement, including with regard to various substantial deductions that will need to be made to the settlement sum.
I was also provided with an affidavit of the mother of the plaintiff. She has explained that she has been kept well informed of the negotiations as they have developed, and at one stage was sufficiently involved to instruct her son's lawyers to reject a particular offer. She has expressed her contentment with the sum now proposed, and has explained that part of that is a desire to avoid the risks associated with regard to litigation (including with regard to liability); her desire to avoid an ongoing state of uncertainty with regard to the future of her son; her desire to avoid the further stress and delay that could be occasioned by appeals; her desire to have a secure future for her son; and, finally, her understanding of and satisfaction with the substantial deductions that will need to be made to arrive at a net payout.
The final piece of important evidence placed before me was confidential Exhibit A, originally annexed to the affidavit of the solicitor for the plaintiff. That was a detailed advice of senior and junior counsel for the plaintiff. For obvious reasons, I shall not analyse it in detail in this judgment. It is enough to say that it is a cogent, considered, and persuasive explanation as to why counsel (both of whom, I infer, are very experienced in this area) are content to advise the tutor to accept the settlement sum.
In particular, it sets out the areas of dispute between the parties, both with regard to liability and damages, and analyses the evidential problems that could stand in the way of the success of the plaintiff. As senior counsel explained in very helpful oral submissions, overarching the question of liability is, of course, that professional medical judgments made in a setting of difficulty or developing crisis, and without the benefit of hindsight, can themselves subsequently be the subject of differing judgments as to their appropriateness, in the context of an allegation of professional negligence.
In short, the submission of senior counsel was that the claim has been thoroughly prepared and investigated; that the plaintiff is represented by lawyers highly experienced in this field; that there are undoubted forensic risks attaching to a full hearing; that there has been an extended period of professional and personal reflection with regard to settlement; that the settlement sum, although not as great as the maximal claim that the plaintiff could make, is nevertheless very substantial; and, finally, that the "discount" between the maximal claim and the settlement sum is an appropriate reflection of all of the factors that need to be considered, not least of which is the possibility of complete failure of the claim. I also infer that the position of senior counsel for the plaintiff is that there is nothing to suggest that the tutor is motivated by anything other than love and concern for the welfare of her son in the years ahead, in light of his severe impairments.
The representative of the defendant did not wish to be heard, except to confirm his contentment with the proposal.
Determination
Turning to my determination, the test to be applied is well known. It is simply whether I am satisfied that the settlement is beneficial to the interests of the plaintiff under incapacity: see Permanent Trustee Company Ltd v Mills [2007] NSWSC 336; (2007) 71 NSWLR 1 at [19]; Fisher by her tutor Fisher v Marin [2008] NSWSC 1357 at [29] and [41]; and Institoris v Falconer [2012] NSWCA 298 at [2].
In the circumstances that I have outlined, I accept all of the submissions of senior counsel for the plaintiff. In particular, I accept that there are real risks that would be run if the matter went to the full hearing that is listed to commence shortly. I also accept that those risks have been the subject of careful reflection by all involved, and that the discount is an appropriate reflection of those risks. I accept that the tutor is motivated by nothing other than the best interests of her own child.
Finally, all of the deductions proposed in the consent orders with which I was helpfully provided are, to my mind, uncontroversial and appropriate.
In short, I am soundly satisfied that the test has been made out.
For those reasons, I approve the settlement that has been reached by the parties in the proceedings between the plaintiff and the defendant, and I shall make all of the orders sought by the parties, including, of course, that the funds be placed in the hands of a well-reputed manager of the estate of the plaintiff. In accordance with their request, the amount of the settlement will be kept confidential.
Orders
I make the following orders:
1. Note that this matter has settled subject to approval, in accordance with the terms of a Consent Judgment last dated 3 May 2016 signed by the legal representatives of the parties.
2. Approve this settlement pursuant to Section 76(4) of the Civil Procedure Act 2005.
3. Make orders in accordance with paragraphs 1 - 4 inclusive of the Consent Judgment.
4. The Court notes the agreement of the parties set out in paragraph 5 of the Consent Judgment.
5. In accordance with Section 77(2) of the Civil Procedure Act 2005, order that the Judgment sum referred to in paragraph 1 of the Consent Judgment, less any authorised deductions for which the Consent Judgment provides, be paid into Court pending appointment of a manager of the plaintiff's estate.
6. The hearing in the matter of 2011/49308 commencing on 30 May 2016 is vacated.
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Decision last updated: 20 May 2016