Fardous v Dan

Ex tempore Judgment 1This is an application under s 76 of the Civil Procedure Act 2005 seeking the Court's approval of a proposed settlement of proceedings against a medical practitioner. The trial of the proceedings commenced on Monday, 13 May 2013, before Harrison J. During the course of the trial the parties reached agreement on a settlement. The trial was adjourned and the application for approval was referred to me, as the Duty Judge. If the settlement is not approved it is expected that the trial will resume before Harrison J. 2The plaintiff, Soraya Fardous, was born in 1979 and is now either 34 or near that age. As I will explain, she is incapable of managing her affairs. She has brought these proceedings by her tutor, being her father, Gassan Fardous. At the hearing of this application there was tendered an opinion from Senior Counsel engaged on behalf of Ms Fardous, an affidavit from her father and an affidavit from a financial adviser. It was explained that there was no waiver of privilege or confidentiality intended by the tender. Instead, it was submitted that they were provided to the Court for its assistance in determining whether or not to approve the settlement. They were not provided to the defendant. 3I received this material into evidence but made an order that it not be made available to anyone other than Ms Fardous or her legal advisers. Nevertheless, it will be necessary to refer to parts of that material to explain my reasons for approving the settlement. 4It is common ground that Ms Fardous saw the defendant in February 2004 following referral from a general practitioner. She had been complaining of headaches for many years. A CT scan revealed evidence of a dermoid cyst. A dermoid cyst is generally benign but its presence and further growth can impair brain functioning. The defendant performed surgery on Ms Fardous on 6 April 2004 in an endeavour to remove the cyst. It is alleged on behalf of Ms Fardous that the operation was a complete failure in that the cyst was not removed but instead her pituitary stalk was damaged and there was damage to the frontal lobes on the right side and in the basal ganglia. Another doctor successfully removed the dermoid cyst in March 2005. 5It is alleged on behalf of Ms Fardous that she suffered a significant number of injuries and conditions as a result of the operation on 6 April 2004. Broadly, it is alleged she suffered a significant impairment of her endocrinological functioning. It is said that she had developed diabetes insipidus and galactorrhoea. These have a number of ongoing effects, but it appears many aspects of those effects are managed through replacement hormone medication. Perhaps more significantly, it is said that she suffers significant emotional and cognitive impairment as a result of the operation which has rendered her unable to work and in need of significant personal care. 6On this application I was referred to a number of joint experts' reports which provide a useful means of identifying the issues in dispute and the relative strengths and weaknesses of Ms Fardous' case. These reports included a joint report from two neurosurgeons, Associate Professor Brian Owler and Associate Professor Michael Weidmann. Their reports were primarily directed towards the allegation of negligence on the part of the defendant in the performance of the operation. 7Both neurosurgeons agreed that damage to the pituitary stalk or gland and to the frontal and temporal lobes was occasioned during the operation. They both agreed that "inadequate and/or limited exposure of the region" of the brain was an "issue", by which I understand them to convey that that omission of the defendant was or could have been a cause of Ms Fardous' injuries. They both agreed that the mere occasioning of such injuries during an operation did not, of itself, indicate that the operation was performed below the acceptable standard. 8In relation to the critical question of whether the defendant's conduct did fall below the relevant standard, their joint report stated: "ASSOCIATE PROFESSOR WEIDMANN: The conduct of the defendant does not fall below the standard of care. We have to be careful to differentiate between the ideal standard of care and an actual standard of care that patients receive. The ideal standard of care is what we all expect from ourselves and what we expect from each other, but that is different from the standard that occurs in day-to-day practice of neurosurgery. Because of those reservations, I do not believe that the standard of care necessarily falls below the acceptable standard. ASSOCIATE PROFESSOR OWLER: It is my opinion that the conduct of the defendant did fall below the standard expected of the ordinary competent, neurosurgeon in Australia practising in 2004." 9Associate Professor Weidmann's opinion appears to approximate in some respects to what would be necessary to establish a defence under s 5O of the Civil Liability Act 2002. 10It is neither appropriate nor fair, especially to the defendant, on an application such as this for the Court to embark upon a detailed inquiry into the liability issues or to make any definitive findings. However, it is necessary to undertake some overall assessment of the relative strength of Ms Fardous' case on liability in order to consider the reasonableness of the proposed settlement. The limited material available to me suggests that her case could certainly be described as reasonable and perhaps strong. However, in view of Associate Professor Weidmann's opinion and the terms of s 5O, I could not form the opinion that Ms Fardous' case was overwhelming - that is, that it is inevitable or extremely likely that she would succeed. Further, when considering whether a particular settlement is reasonable, what might be described as the usual exigencies of litigation must also be borne in mind. These include the potential for appeals and the anguish caused by the delays that are inevitable with a matter as complex as this one. 11The joint experts' reports included a report from two neuropsychologists, Dr Corinne Roberts and Dr Sara Lucas. They agreed that Ms Fardous suffered from impairment of cognitive function and had disturbed emotional functioning which they described as severe. They opined that her cognitive dysfunction was mostly permanent. They both agreed that she was not employable in the open labour market. 12There was also a joint report from two occupational therapists, Ms Bronwyn Mackenzie and Ms Susan Miller-Ravagnani. They both agreed that Ms Fardous required a significant level of personal care but disagreed as to what was required. Ms Miller-Ravagnani was of the view that she required 24-hour care, which included overnight, albeit inactive, care. Ms Mackenzie appears to have disagreed. She appears to identify the level of care required as something approximately half that identified by Ms Miller-Ravagnani. 13There was also a joint report from two rehabilitative medical experts, Dr Brian Zeman and Professor Hugh Dickson. They were in agreement as to the levels of assistance that Ms Fardous required. They both agreed that she was not employable. They appear to identify a level of care that was closer to Ms Miller-Ravagnani's estimate than that identified by Ms Mackenzie. 14There was also tendered a joint report of two psychiatrists, Dr Patricia Jungfer and Dr Rosalie Wilcox. Both psychiatrists agreed Ms Fardous had an adjustment disorder with depressed and anxious mood. Both agreed that its origins were in her emotional response to the change in personality and cognition that arose as a result of the brain surgery, although Dr Wilcox identified a number of other contributing factors. 15These reports demonstrate, if it were not otherwise obvious, that the likely level of damages Ms Fardous would recover if she were successful would be very significant. 16I was provided with the schedule of damages relied upon or proposed to be relied upon by Ms Fardous before Harrison J. The overall figure nominated in that schedule of damages is just below $6 million. The schedule does not include an amount for funds management. The most significant component of the schedule is an amount identified for future care of just under $3.7 million. That amount does not include any deduction for vicissitudes. Whether or not such a deduction should be made is debatable. 17The figure of just under $3.7 million for future care reflects an allowance for 24 hours per day attendant care with inactive overnight care, as advised by Ms Miller-Ravagnani. I have already referred to the potential evidentiary dispute over that issue. In addition, that figure for future care assumes that no part of that care will be provided by members of her family. If it were, the amount recoverable in respect of their services would be subject to the limits imposed by s 15 of the Civil Liability Act. The opinion from Ms Fardous' Senior Counsel adverts to the possibility of avoiding such restrictions by reliance on s 3B(1)(a) of the Civil Liability Act 2002. It is, however, by no means clear that the severe findings against the defendant that would be necessary to invoke that provision would, or even might, be made in this case (see Dean v Phung [2012] NSWCA 223 at [30] per Basten JA). 18In the end result it follows that the figure of just under $6 million can be seen to be at the high end of the relevant range of reasonable outcomes in the event that Ms Fardous succeeded against the defendant. 19The proposal settlement figure is $4 million exclusive of costs. It follows from the above discussion that I consider that this amount falls well within the range of reasonable compromises for a complex matter such as this. It is approximately two-thirds of the high end of the range for Ms Fardous' case excluding costs of funds management. Of course, there is no guarantee that her case would succeed. I otherwise note that Ms Fardous is represented by experienced counsel and solicitors. 20The affidavit material reveals that Ms Fardous' father is fully cognisant of all the consequences of settlement. These include the likely amount his daughter will have access to after provision for the various pay-backs and legal costs. That figure is estimated to be $3.5 million. The affidavit from the financial adviser adverts to what is proposed to be done with those monies. 21Accordingly, in these circumstances I will approve the settlement and make the appropriate orders. 22Pursuant to s 76(4) of the Civil Procedure Act, I approve the settlement recorded in the document entitled "Consent Judgment" which is initialled by me, dated today and placed with the Court papers. I make orders 2 to 6 in the document entitled "Short Minutes of Order", which is initialled by me and placed with the papers. I make orders 2, 3 and 4 in the document entitled "Consent Judgment" to which I have just referred.