This is an application for judicial approval of a settlement pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW) ('the Act'). The approval is necessary because the plaintiff, Euston Dixon, is presently 12 years old and is therefore under a legal incapacity.
[2]
Background
The plaintiff was born on 15 June 2011. Between September 2015 and September 2020, he presented to Orange Hospital on multiple occasions with symptoms including abdominal pain and vomiting. No radiological investigations were performed on these occasions.
On 22 October 2020, he presented to Bourke District Hospital with abdominal pain. After the plaintiff had blood tests, he was transferred to Dubbo Hospital and it was decided that he required a laparoscopic appendicectomy. During the procedure, however, his appendix was found to be normal and the appendicectomy was converted to a midline laparotomy. It was then discovered that there were multiple gallstones present in the plaintiff's abdomen.
On or about 25 October 2020, he was transferred to Westmead Children's Hospital where a CT scan was performed which exhibited necrotising pancreatitis with complications.
The plaintiff's case is that the defendant negligently failed to properly consider test results earlier obtained, and to perform different investigations including investigations at earlier times. It is alleged that, but for the defendant's negligence, it would have diagnosed gallstone pancreatitis earlier and it would not have misdiagnosed appendicitis or recommended the associated laparoscopic appendicectomy.
On 31 October 2022, the plaintiff commenced these proceedings which seek the recovery of damages. He alleges that his injuries and disabilities were caused by the defendant's negligence.
The parties have reached a proposed settlement and the matter is now before me for approval of that settlement.
In support of the application for approval, I received the following:
1. An affidavit of Melinda Dixon, the plaintiff's mother and tutor in these proceedings, affirmed on 14 February 2024;
2. An affidavit of Tegan Wills, the plaintiff's solicitor, affirmed on
13 February 2024; and
3. An undated but recent confidential advice of Philip Beale of counsel.
[3]
Relevant principles
In an application for approval of a settlement under s 76(3) of the Act, the Court's function is protective. The ultimate question is whether the proposed settlement is beneficial to the interests of the plaintiff, or in his best interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 ('Mills') at [29]; Budini v Sunnyfield [2021] FCA 1540 at [10].
It is the Court's responsibility to determine this matter, albeit with the assistance of confidential advice provided by counsel for the plaintiff: Mills at [29]; Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 ('Scandolera') at [27].
In its determination, the Court is to consider the "advantages and disadvantages of the litigation continuing not only in terms of whether [the plaintiff] might secure a more advantageous award from the Court at trial, but also issues such as the prospects of an appeal and the costs and pressures imposed on [the plaintiff] if the litigation were to continue": Scandolera at [29].
The tutor must also assent to the compromise, which has occurred here.
[4]
Consideration
The defendant denies that it was negligent. There are real disputes between the parties, including as to breach of duty, causation and damages. The expert reports, served by the plaintiff and defendant respectively, reach different conclusions in relation to each of these issues.
Expert evidence served by the plaintiff suggests that, through the use of abdominal ultrasound or other investigations, the defendant ought to have identified gallstones and diagnosed gallstone pancreatitis at an earlier stage. This would have prevented the misdiagnosis of appendicitis and associated laparoscopic appendicectomy.
On the other hand, expert evidence served by the defendant suggests that the plaintiff did not have inherent risk factors suggesting a greater likelihood of developing gallstones and there were no risk factors that ought to have been identified and acted upon arising from the blood tests. This justified a conservative approach. There may also have been a reluctance to use imaging on the plaintiff because he was a child.
The experts also materially differ in respect of their assessment of the plaintiff's injuries and disabilities and his requirements (if any) for past and future treatment, care and assistance and economic loss.
I have carefully considered the opinions and conclusions of counsel in the confidential advice. I have also taken into account the matters expressed by Ms Dixon and Ms Wills in their respective affidavits, as well as the advantages and disadvantages of this litigation continuing.
There are real risks that the plaintiff's case may fail entirely or that he will receive less damages than the settlement amount.
Bearing in mind all the material that has been placed before me, in my opinion the proposed settlement is a compromise that is beneficial to and in the best interests of the plaintiff.
[5]
Orders
I make the following orders:-
1. The settlement recorded in paragraph 2 of the Consent Judgment filed on 21 March 2024, and signed by the parties, is approved pursuant to
s 76(4) of the Act.
2. Pursuant to s 77 of the Act, the Judgment Sum referred to in the Consent Judgment is to be paid into Court.
3. The plaintiff acknowledges that he has been informed that he may be liable to pay an amount (the Past Benefit) pursuant to the Health and Other Services (Compensation) Act 1995 (Cth) and/or the Health and Other Services (Compensation) Care Charges Act 1995 (Cth) and the defendant is at liberty to deduct from the said Judgment Sum and pay to Medicare the Past Benefit.
4. The Defendant is authorised to deduct from the Judgment Sum any amount due under the Notice of Past Benefits under the Health and Other Services (Compensation) Act 1995 (Cth) which is served upon it at the time of settlement. If no such Notice is received beforehand or within 7 days of the date of the Consent Judgment the Defendant is authorised to make an advance payment under the Health and Other Services (Compensation) Act 1995 (Cth) of the Judgment Sum.
5. The plaintiff undertakes to repay any amount owing to Centrelink and indemnifies the defendant in respect to any such amounts. The defendant is at liberty to deduct from the said Judgment Sum to pay to Centrelink any monies owing to it (the Social Security repayment).
6. The plaintiff acknowledges that the defendant will advise Centrelink as required by s 1183 of the Social Security Act 1991 (Cth), as well as Medicare Australia of the Judgment Sum. The plaintiff authorises the defendant to provide Centrelink and Medicare Australia with a copy of this Consent Judgment together with the required notices of settlement.
7. Interest shall not run on the Judgment Sum until 28 days after the happening of the last of the following events:-
1. Receipt by the defendant's solicitors of a Direction as to Payment signed by the plaintiff;
2. Receipt by the defendant's solicitors of a duly executed and sealed consent judgment;
3. A notice from the Department of Social Security requiring payment of any amount or providing a clearance from paying any amount pursuant to the provisions of the Social Security Act 1991 (Cth);
whichever is the later.
1. Further, the defendant is authorised to deduct from the Judgment Sum and pay to the relevant person or authority:
1. Any amount due to the Department of Aging, Disability and Homecare (DADHC) in the event that the value of services provided in respect of the plaintiff are deemed to be repayable; and
2. Any amount due to any other party, including but not limited to, the Department of Veteran Affairs, any Private Health Insurance companies, in the event that the value of services provided in respect of the plaintiff are deemed to be repayable.
1. If after the payment of the Judgment Sum, any further Notice of Charge is received and is payable by the defendant in relation to services received by the plaintiff relevant to this claim, the plaintiff will repay the defendant any amount the defendant is required to pay and the plaintiff indemnifies the defendant in respect to such amounts.
2. I give liberty to apply on 3 days notice if an issue arises with respect to these orders.
[6]
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: 22 March 2024