By summons filed in the registry of this court on 30 August 2016 Harmeet Kaur, by her tutor, Dharun Prasad, seeks an approval of a settlement of a claim or potential claim pursuant to s 76 of the Civil Procedure Act 2005 (NSW), together with some ancillary orders.
The summons is supported by an affidavit of Mr Prasad which was also filed on 30 August 2016 and much of the history which I am about to relate of these proceedings is drawn from that affidavit. Dharun Prasad is the husband as well as the tutor of Harmeet Kaur.
Ms Kaur was born on 6 July 1975 in India and she is now a woman of 41 years of age. She has tertiary qualifications which she obtained in India although she has been a resident of this country for some time. She and her husband were married in November 2007 and they reside at a home currently the subject of a mortgage at Blacktown. The couple have no children.
Ms Kaur commenced employment with the first defendant, Cordina Chicken Farms Pty Limited, as a process worker in 2007. Her employment appears to have proceeded in an ordinary course for some years prior to an incident in August 2011 which has given rise, it is contended, to severe psychiatric injury suffered by Ms Kaur. Ms Kaur initially enjoyed her work with the first defendant and had no apparent difficulty in coping with that work although it appears there were some stresses from time to time between Ms Kaur and her supervisor at her place of employment.
On 16 August 2011 there was an incident during which Ms Kaur suggests that she was verbally abused by her supervisor in front of a number of other employees of the first defendant. Ms Kaur was occasioned some extreme distress by this incident of verbal abuse and she eventually left her work early to go home. Ms Kaur told her husband and current tutor about the incident and she also advised the human resources department of the first defendant but no action appears to have been taken by the first defendant in relation to the abuse she alleges she was subjected to by her supervisor.
The state of distress in which Ms Kaur left her place of employment that day continued and indeed became markedly exacerbated over time. When Ms Kaur's husband returned home from work on the day of this incident he found his wife in an extremely distressed state with bruising on her forehead from apparently repeatedly banging her head against a wall or some other object. Ms Kaur was taken to her general practitioner for examination but her condition did not settle and she was admitted to the Blacktown Hospital psychiatric unit some days later. She remained a patient of that unit for some several weeks. Her psychiatric condition did not improve despite the fact that she was prescribed with psychotropic medications and given psychological counselling. Indeed, rather than improve her condition appears to have deteriorated to the point where she became almost entirely mute and wholly withdrawn from ordinary life.
She was eventually discharged from Blacktown Hospital and remained under the care of a psychiatrist but her condition continued without improvement. A course of outpatient electroconvulsive therapy was administered without effect and she was subsequently made a candidate for Clozapine therapy but the therapy had to be ceased because of an adverse reaction to it. Ms Kaur has been treated with other psychotropic medications since but her condition continues to be parlous.
Over a significant period now, the tutor reports that his wife has remained largely mute and withdrawn. A relatively recent psychiatric examination by Dr Lubna Naaz, a consultant psychiatrist, reported the plaintiff presenting as dishevelled in appearance, unable to make eye contact with the doctor and staring at the floor throughout the consultation. The doctor was unable to communicate with the plaintiff despite speaking to her in her native language of Hindi. She did not engage at all. She did not respond to questions and she remained mute throughout the entirety of the consultation with the doctor.
Dr Naaz concluded, having seen his patient since June 2012 to recent times, that the plaintiff's condition has worsened, with a deterioration in her symptomatology and in her presentation. Her current medical state, in his opinion, is characterised by amotivation, apathy with significant disorganisation, and she displays symptoms of a chronic psychotic illness which, in the doctor's opinion, is largely treatment resistant, at least in so far as treatment which has previously been made available to her is concerned. The current diagnosis is of schizophrenia of a residual type, with prominent negative symptoms.
A medical assessment certificate which is before the court notes that the plaintiff has been assessed as having 47 per cent whole person injury as a result of her severe psychiatric illness.
The plaintiff's tutor deposes that his wife's condition has not changed in the last four years. At home she remains largely mute and withdrawn. She has difficulty in sleeping, and at times remains awake throughout the night. She is given to sporadic outbursts of anger and agitation, although those outbursts can be mitigated if her routine is kept constant.
Her condition is such that the NSW Civil and Administrative Tribunal ("NCAT"), has made her the subject of an order for financial management, although declining an order for guardianship. The plaintiff's tutor assists her, as her financial manager, pursuant to that appointment from NCAT. It would appear that in addition to managing his wife's finances, the plaintiff's tutor has the most significant part of the burden of her care. There are no other family members permanently in the local area, although Mr Prasad has invited various members of her family to stay with him and his wife from time to time in the hope that family presence would be of benefit to his wife's condition. Unfortunately, his experience has been that even the presence of close family has met with no change to his wife's condition.
Currently, the plaintiff is in receipt of weekly workers compensation benefits from the defendant's workers compensation insurer, QBE Workers Compensation. She is in receipt of an amount of roughly $690 net per week, together with the benefit of the workers compensation insurer meeting treatment expenses, which presently consist of monthly consultations with a general practitioner and pharmaceutical expenses to meet the costs of psychotropic medication. She has an entitlement to receive weekly benefits until she reaches retirement age at 67 years.
A claim has been made on behalf of the plaintiff against the first defendant. There was mediation as a part of that claim, and a settlement offer of $250,000 was made by the defendant to settle the plaintiff's claim, and it is that settlement offer with which the Court is today concerned.
Counsel for the plaintiff has provided advice to Mr Prasad and to the plaintiff, but there is an obvious issue given that he is unable to obtain any meaningful instructions from the plaintiff and, although Mr Prasad has the benefit of a financial management order from NCAT, there is a question as to the prudence of accepting the settlement offer made by the defendant. Were the claim to be pursued, it is possible, if it were successful, that there would be a rather more significant award of damages to the plaintiff than is represented by the proposed settlement offer.
Notwithstanding the possibility of a more substantial financial claim were court action to be successfully prosecuted, Mr Prasad's opinion and his wish is for his wife to be in a position to accept the settlement offer because of what he perceives to be the benefits of that course of action. He acknowledges the fact that the settlement offer falls below what could be represented by an award of damages, but it is the other benefits which have persuaded Mr Prasad that the settlement offer should be accepted, and I must say it is having regard to those proposed benefits that has persuaded me that his opinion in that regard is correct.
There is firstly the issue of liability. I have been referred to the decision of Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, authority from the High Court for a case which in some ways has some similarity to the present and it is of some interest in terms of the issue of liability.
There is a very real question as to liability in relation to the alleged workplace injury suffered by the plaintiff. The injury is a psychiatric one. It follows from an alleged abusive encounter with a supervisor which, as I understand it, is not wholly supported by other employees who were in the vicinity at the time. Even if a court were to conclude that the incident occurred in the way the plaintiff asserts, there is a question as to whether there was a particular duty of care engaged.
In this instance, because there is an issue as to whether the psychiatric injury which the plaintiff has apparently sustained, was one which was reasonably foreseeable, there is a question as to whether the employer had any reason to suspect that the plaintiff was at risk of the sort of injury which she says she has sustained as a consequence of the incident in the workplace.
It is impossible for the Court, in the course of this matter, to make any prediction as to whether there was in fact a duty of care, whether that duty of care was breached and whether liability would flow. Suffice it to say that there is an issue in that regard, and it is by no means certain that the plaintiff would achieve success were she to pursue her claim. That is a feature of the matter which Mr Prasad has borne in mind in reaching the conclusion that a settlement offer ought be accepted. The others go to the immediate benefit that he believes would flow to his wife from access to the settlement figure of $250,000.
Currently his wife is in receipt of workers compensation payments. She is obliged from time to time to consult with medical practitioners at appointments arranged by the insurer. It is Mr Prasad's experience of attendance at those appointments that they are disruptive of his wife's mental health. He has observed that subsequent to attending these appointments his wife becomes agitated, angry and aggressive, and very difficult to settle into her ordinary routine. Daily activities such as showering and dressing become very difficult, and he has found that it can take weeks for his wife to settle after such an appointment. If legal action continues, those appointments will be a necessary part of the foreseeable future. Mr Prasad does not regard it as in his wife's interests to be subject to that sort of ongoing monitoring and ongoing disruption to her daily routine.
Additionally, Mr Prasad is of the opinion that there may be some benefit to his wife in being able to travel overseas to pursue therapy, particularly in the United States. In July of this year, Mr Prasad and the plaintiff went to Los Angeles to see the plaintiff's father, who was very ill. During their time in the United States Mr Prasad arranged for his wife to consult with a Professor Elliott, who saw the plaintiff on three occasions, with a total of between some nine and 12 hours of consultation and therapy. After the consultations, Mr Prasad observed that his wife was more alive than he had seen her for many years, and he concluded there may be some real benefit to his wife having access to treatment and therapy through Professor Elliott. Such assistance and treatment is unlikely to be available through the workers compensation scheme, but it could be available as a consequence of accepting the settlement offer.
Mr Prasad has concluded that if the settlement offer is accepted, he and his wife could discharge the mortgage which currently exists over their Blacktown home, leaving them free from that sort of ongoing debt and particularly free to be able to travel internationally in pursuit of therapy for the plaintiff. They would have both the freedom and the funds necessary as a consequence of the payment of the settlement offer. That would be so, even once the mortgage were discharged and even after legal costs not met by the insurer were paid.
Mr Prasad is of the opinion that not having the financial burden of a mortgage and dependence on workers compensation payments would make a significant and positive difference to his wife's health, and life more generally. He continues in employment and is of the view that his own earnings would be sufficient to maintain he and his wife comfortably, particularly in the absence of an ongoing mortgage commitment. It is because of those features that Mr Prasad considers it to be in his wife's best interest for the settlement figure to be accepted, even acknowledging the possibility that a larger amount may be sacrificed in the longer term.
Those same considerations have informed my view of the matter, and I have reached the same conclusions as has Mr Prasad, particularly having regard to the issue of liability. There is a real risk to the plaintiff that pursuit of action against the first defendant could leave her ultimately with no financial benefit, with no award for damages. In the interim, in pursuing such action she would be subject to the sort of scrutiny from doctors which her husband deposes - and I accept - she finds so very unsettling.
A payment, albeit for a potentially smaller amount of money than a court might award would allow the couple to discharge their mortgage, live in a modest but wholly comfortable way and, particularly, for therapy available potentially to the plaintiff internationally to be pursued. Some immediate finality and certainty seems to me to be a better outcome than pursuing, in the long term, an outcome which could be more generous but equally could prove wholly illusory.
Taking into account all of the evidence before the Court, it seems to me that the settlement offer does represent the best outcome for Ms Kaur and, accordingly, I am prepared to make the orders which are sought.
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ORDERS
I make the following orders:
1. In accordance with s 76 of the Civil Procedure Act 2005 (NSW), settlement in the amount of $250,000 and in accordance with the proposed deed of release is approved;
2. The defendant is to pay the amount of $250,000 to the plaintiff's financial manager, Dharun Prasad, who undertakes to the Court to hold the funds on trust and apply those trust funds for the benefit of the plaintiff;
3. The defendant is to pay the plaintiff's costs of the proceedings, as agreed or assessed.
[3]
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Decision last updated: 19 April 2018