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Category: Principal judgment

Parties: Rita McCulloch (Plaintiff)
Sari Larsen (First Defendant)
Kok Shing Daniel Ong (Second Defendant)
Health Administration Corporation (Ambulance Service of NSW) (Third Defendant)

Representation: Counsel:
D Graham SC / S Grey (Plaintiff)
M Crollos (Solicitor) (First Defendant)
M Hughes (Solicitor) (Second Defendant)
T Harris-Roxas (Third Defendant)
Solicitors:
Carroll & O’Dea Lawyers (Plaintiff)
HWL Ebsworth Lawyers (First Defendant)
Wotton Kearney (Second Defendant)
Hicksons / Hunt & Hunt (Third Defendant)

File Number(s): 2022/00291971

JUDGMENT

1. The Plaintiff in these proceedings, by this application, seeks the Court’s approval of a settlement reached with the Defendants. The need for approval arises as the Plaintiff pursues the claim on behalf of both herself and her son, who is a minor and, due to being diagnosed with Autism Spectrum Disorder Level 3 and an intellectual disability, is considered unlikely to live independently in the community when an adult.

Background

2. The proceedings concern claims arising from the death of Alfonse “Alf” Nguyen (the Deceased). On 13 July 2019, Mr Nguyen collapsed while performing as a DJ at the Marlborough Hotel in the Sydney suburb of Newtown. He died shortly thereafter.

3. On 18 January 2017, the Deceased consulted Dr Sari Larsen, a General Practitioner, reporting chest symptoms. Dr Larsen, who is the First Defendant in these proceedings, ordered blood tests including lipids and cholesterol.

4. On 30 October 2017, the Deceased returned to Dr Larsen, who again referred him for blood tests including lipids and cholesterol. Those blood test results showed high cholesterol. On 15 December 2017, the Deceased again consulted Dr Larsen, who reviewed the results of the Deceased’s blood tests and, after noting the high cholesterol from the October 2017 blood tests, referred him for further tests. Dr Larsen also recorded a plan to refer the Deceased for an exercise stress test if his chest pain persisted.

5. On 14 March 2019, after exercising at the Fitness First gymnasium in Maroubra, the Deceased suffered a syncopal episode at approximately 11am. The Health Administration Corporation (Ambulance Service of NSW), which is the Third Defendant in these proceedings, was called. Paramedics attended the scene and performed a 12-lead ECG. The machine’s report recorded sinus rhythm with “anterolateral ST-T abnormality [which] may be due to myocardial [ischaemia]”. He was not transported to hospital and returned home. The circumstances concerning the issue of transport are in dispute in the proceedings. The Plaintiff pleads that the transport was merely offered to the Deceased, while the Third Defendant pleads that it was recommended and refused.

6. On 22 March 2019, the Deceased consulted Dr Kok Shing Daniel Ong, a General Practitioner. Dr Ong is the Second Defendant in these proceedings. After the Deceased reported the gymnasium syncopal episode, Dr Ong recorded the family history and a BMI of 31.8 and requested blood tests.

7. As stated above, on 13 July 2019, the Deceased collapsed at approximately 1.10–1.20am while performing. An ambulance was called at 1.25am and, after arriving at 1.33am, paramedics commenced resuscitation. The Deceased arrived at Royal Prince Alfred Hospital at 2.10am and was pronounced dead at 2.51am. On 11 November 2019, the NSW Coroner determined the cause of death as the combined effects of ischaemic heart disease (IHD) and illicit stimulant use (cocaine and amphetamines).

8. The Plaintiff commenced these proceedings by filing a Statement of Claim on 30 September 2022.

Issues joined on the pleadings

9. The Plaintiff filed an Amended Statement of Claim (ASOC) on 18 July 2023. The First Defendant’s Further Amended Defence was filed on 28 May 2026. The Second Defendant’s Amended Defence was filed on 29 May 2026. The Third Defendant’s Amended Defence was filed on 14 November 2025. The Plaintiff filed her Reply on 11 June 2026.

10. The Plaintiff, by her ASOC, brings three claims:

11. a claim under s 3 of the Compensation to Relatives Act 1897 (NSW) for the loss of pecuniary benefits to herself and her son (funeral and like expenses, domestic and household services, and loss of income);

12. in the alternative, an estate claim made possible through s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), including damages as conditioned by s 15B of the Civil Liability Act 2002 (NSW) (the CLA) for the loss of the Deceased’s capacity to provide gratuitous domestic services; and

13. her own claim for mental harm (nervous shock) under Pt 3 of the CLA, the injury being pleaded as a persistent depressive disorder.

14. There are three Defendants, each associated with a temporally distinct episode of alleged negligence:

15. the First Defendant, Dr Sari Larsen, in relation to three consultations in 2017, being 18 January, 30 October and 15 December;

16. the Second Defendant, Dr Kok Shing Daniel Ong, in relation to a single consultation on 22 March 2019; and

17. the Third Defendant, Health Administration Corporation (Ambulance Service of NSW), is alleged to be vicariously liable for the conduct of the paramedics who attended the Deceased’s syncopal episode on 14 March 2019.

18. The Plaintiff’s unifying causal theory is that had any Defendant exercised reasonable care, the Deceased’s IHD would have been diagnosed and treated. That treatment would have included surveillance, optimal medical therapy, revascularisation by coronary artery bypass grafting and, as pleaded in the Reply, an implantable defibrillator. It is contended that, had these occurred, he would not have died on 13 July 2019. The issues joined by the pleadings are, in summary, the following:

19. each Defendant admits to owing a duty of care to the Deceased. However, none admits that any such duty extended to the mental harm allegedly suffered by the Plaintiff. The Third Defendant positively puts this in issue. None of the Defendants admits the pleaded “risks of harm” at par 36 of the ASOC;

20. each Defendant denies any breach of the duty owed. The Defendants rely upon s 5O of the CLA, namely, that they acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice;

21. each Defendant disputes causation and contests the Plaintiff’s counterfactual assertion, contained at par 41 of the ASOC, as well as the Plaintiff’s additional implantable defibrillator contention contained in the Reply;

22. with respect to the use of illicit drugs, the issues which arose on the pleadings were, first, whether long-term use caused the premature coronary disease, secondly, whether use on 12–13 July 2019 triggered the fatal arrest and, thirdly, the legal consequences. The First and Second Defendants raise a complete defence under s 54 of the CLA, whilst all three Defendants raise contributory negligence (up to 100% for the Third Defendant);

23. with respect to the Deceased’s cause of death, none of the Defendants admits the pleaded mechanism, being myocardial ischaemia secondary to IHD, leading to arrhythmia and cardiac arrest;

24. as to quantum, dependency of the Plaintiff and her son was placed in issue. The recovery of loss of services damages is contested by the Third Defendant; and

25. certain matters were raised by the Third Defendant alone, being, inter alia, the statutory bar under the Limitation Act 1969 (NSW) and contributory negligence capable of defeating the claim.

Liability

The claim against the First Defendant

13. The central factual dispute between the Plaintiff and the First Defendant was whether the 2017 presentations concerned cardiac chest pain, as pleaded, or, rather, an upper respiratory tract infection and mild intermittent chest tightness of limited clinical significance, as contended by the First Defendant. The First Defendant admitted the Deceased’s documented risk factors, namely, a family history, smoking between 1999 and 2009, a raised BMI and hypercholesterolaemia.

14. The First Defendant also admitted the allegation, contained at par 21 of the ASOC, that she did not advise the Deceased that he might be suffering from IHD. As noted above, the First Defendant, against the Plaintiff’s claim, raised several matters within the CLA, the most significant of which, for present purposes, is s 54. That provision reads, relevantly, as follows:

54 Criminals not to be awarded damages

(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that—

(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and

(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.

15. The First and Second Defendants pleaded that the death followed the Deceased’s self-administration of a prohibited drug, being a serious offence under ss 12 and 21 and Sch 1 of the Drug Misuse and Trafficking Act 1985 (NSW), which materially contributed to his death. In this regard, the First and Second Defendants relied upon the autopsy report of 15 August 2019 and other documents including the report of Associate Professor Adams (discussed below).

The claim against the Second Defendant

16. The Plaintiff asserts that at the 22 March 2019 appointment a reasonable General Practitioner, in the Second Defendant’s position, would have, inter alia, appreciated the risk of the Deceased having IHD, considered myocardial ischaemia as a possible cause of the gymnasium syncopal episode, performed an ECG and referred the Deceased to hospital or a cardiologist.

17. The Second Defendant denied any breach of his duty of care and pleaded that, in ordering blood tests and diagnosing the Deceased with orthostatic syncope, his care was in accordance with competent professional practice pursuant to s 5O of the CLA. He too raised s 54 of the CLA as well as contributory negligence on the part of the Deceased.

The claim against the Third Defendant

18. The Plaintiff alleged that a reasonable paramedic in the position of those who attended upon the Deceased after the gymnasium syncopal episode would have more fully considered the ECG results, elicited a family history and strongly encouraged the Deceased to travel with them to hospital by ambulance.

19. The Third Defendant responded that the paramedics’ conduct, in performing the ECG, advising the Deceased to accept transport to hospital and recording his refusal, was in accordance with competent professional practice pursuant to s 5O of the CLA.

The Plaintiff’s experts

20. Expert evidence on liability on which the Plaintiff relied included that of Dr Richard Alcock, an Interventional Cardiologist; Mr Anthony Hucker, a Critical Care Paramedic; and Associate Professor David Richards, a Cardiologist. Dr Alcock addressed the counterfactual clinical pathway and life expectancy of the Deceased had he undergone treatment prior to his death and followed the lifestyle advice that he would have received. In his supplementary report, responding to the Defendants’ evidence, he estimated that the Deceased would have survived a further 20 years.

21. Mr Hucker expressed the opinion that the ECG that the paramedics performed was abnormal. He continued that such an abnormal result should have directed them to a thorough assessment, prompted an explanation of the abnormality and its significance to the Deceased in lay terms, and led them strongly to encourage transport to hospital by ambulance for further assessment. He considered that to be a failing by the Third Defendant.

22. Associate Professor David Richards provided two reports, respectively dated 26 July 2021 and 22 November 2023. His 2021 report concerned causation and the Deceased’s prognosis if his condition had been managed differently. Associate Professor Richards, noting the Coronial finding of multifocal fibrosis in the heart, added that such fibrosis was likely to be the consequence of recurrent ischaemia over months and years. Associate Professor Richards opined that the Deceased’s combination of risk factors (including a family history of premature IHD) and chest discomfort meant that consultant cardiological review was “indicated” from January 2017 onwards. He concluded that any of a number of possible tests would have been of assistance in diagnosing the Deceased’s IHD and that optimal medical therapy would have eliminated, or reduced by more than 50%, the risk of myocardial ischaemia.

23. Ultimately, Associate Professor Richards concluded that had certain measures been taken by the First and Second Defendants, the Deceased would not have died of cardiac arrest on 13 July 2019.

The Defendants’ experts

24. The Defendants relied upon an array of experts to respond to the Plaintiff’s experts and to support the positive defences raised in the pleadings. Some of those experts were engaged for the Defendants jointly, while others were engaged for a single Defendant. There was, therefore, a significant body of evidence.

25. Dr Christopher Pitt, a Consultant General Practitioner, provided a report for the First Defendant. His opinion was that Dr Larsen’s treatment of the Deceased in each of the three consultations was reasonable and appropriate and accorded with widely accepted peer professional opinion of competent professional practice in 2017. He further considered that there was no need for the Deceased to be referred urgently to a cardiologist or emergency department, and there was no urgent need to exclude IHD or an acute coronary syndrome whether by reference to his symptoms or his family history. Dr Pitt opined that the recorded chest tightness, when considered prospectively rather than with hindsight, was more consistent with somatisation of psychological distress than with cardiac pain, the latter being a “unicorn diagnosis” in a young adult in general practice.

26. Another General Practitioner, Dr Kenneth Dobler, supplied a report for the Second Defendant. He too opined that Dr Ong’s management of the Deceased on 22 March 2019 was carried out in a manner widely accepted in Australia as competent professional practice, and that there was no urgent need to exclude IHD and to refer the Deceased to a hospital or to a cardiologist. He considered that the Deceased’s history of light-headedness on rising after bending, shortly after vigorous exercise whilst fasting, was highly suggestive of orthostatic presyncope, for which the relevant guidelines indicated no further investigation was required. He noted the absence of any cardiac red flags and, moreover, that Dr Ong knew an ambulance had attended and an ECG had been performed at the gymnasium syncopal episode and could reasonably have assumed it was unremarkable.

27. The principal expert witness for all the Defendants was Associate Professor Mark Adams, a Cardiologist. Associate Professor Adams served three reports, respectively dated 8 August 2023, 6 December 2024 and 28 July 2025. In his 8 August 2023 report, he considered that the 2017 consultations with Dr Larsen showed no obvious need urgently to exclude an acute coronary syndrome or to refer for cardiac assessment. He considered Dr Larsen’s approach to be reasonable and stated it would be unusual for a man of the Deceased’s age and profile to have extensive coronary disease. He regarded the combined use of amphetamine, cocaine and cannabis as the most likely major driver of the markedly premature coronary disease and, more likely than not, the trigger for the fatal event on 13 July 2019. As to the counterfactual, he considered that if the disease had been diagnosed and treated by bypass surgery, and the Deceased had stopped using drugs, the Deceased would probably have avoided the cardiac arrest, with a life expectancy of about 10 to 12 years, given likely impaired left ventricular function.

28. He considered that the event of 14 March 2019 was almost certainly vasovagal syncope triggered by exercise while fasting, that the ECG showed normal sinus rhythm with non-specific lateral T-wave flattening, and that the machine’s report of “anterolateral ST-T abnormality may be due to myocardial ischaemia” was an incorrect overread. In Associate Professor Adams’ opinion, it would not have been foreseeable that the Deceased had extensive coronary disease. He disagreed with Associate Professor Richards in certain respects, including the family history of premature IHD, the frequency of such extensive coronary disease, and left ventricular function.

29. A further report from another Cardiologist, Professor Anne Keogh AM, prepared for Dr Ong, provided a cardiological opinion, as well as a supplementary report, on which he relied. Professor Keogh’s central causation opinion was that even if the Second Defendant had referred the Deceased to a hospital or to a cardiologist on 22 March 2019, the Deceased would probably still have suffered the cardiac arrest 16 weeks later, even with treatment and drug cessation. In that regard, she relied upon the realistic delays in the public system of 13 to 20 weeks to see a cardiologist, to be followed by sequential testing across several disciplines and a further 6 to 12 months for optimal medical therapy to confer a benefit. Added to this was the need for specialist drug and alcohol intervention, and for documented abstinence before surgery, as well as the “well-documented” non-compliance of illicit substance users. She also considered that there was no adequate reason for the Second Defendant to refer the Deceased to hospital that day, and doubted the Deceased would have attended or complied in any event.

30. She attributed the extensive premature coronary disease to cocaine and amphetamine use, acute and chronic, on top of cannabis, together with a predisposition inherited from the Deceased’s father. She considered the use of cocaine a very likely precipitant of death and regarded the autopsy findings as consistent with chronic cocaine use.

Quantum

31. As to quantum, the Plaintiff claims, after certain deductions, $12,025 for funeral and like expenses, a past loss of $297,663, and a future loss of $469,990. In relation to the loss of domestic and childcare services, the Plaintiff claims $1,423,171 in the past and $3,424,744 in the future. The Defendants dispute some of those amounts. They assess the past loss of financial support as $186,765 and the past loss of domestic and childcare services as $113,521. Such contest is to be expected where both the Deceased’s life expectancy and the availability of damages are in issue.

32. The thorough analysis contained in the confidential opinion (to which I shall return below), along with my own review of the evidence, satisfies me that the compromise sum is beneficial to the Plaintiff and her son and in their best interests.

Matters in dispute

33. I have set these matters out in some detail because, although there were some agreements between the competing experts (e.g. that illicit stimulant use contributed to the premature coronary disease), there remained very significant matters in dispute, such as the Deceased’s use of drugs (and the legal consequences of that use), the standard of care in general practice, the Deceased’s risk of IHD, the cause of the fatal arrest, the Deceased’s left ventricular function, life expectancy on the counterfactual, the extent to which early referral to a cardiologist would have avoided the arrest and, finally, the ambulance officers’ conduct on 14 March 2019.

34. This is, of course, aside from the complicated legal issues which arose in relation to the duties which the Plaintiff alleged were owed to her, her son and the Deceased.

35. It is in this context that I have considered the confidential opinion of Mr Graham SC and Mr Grey of counsel, of 9 July 2026. Mr Graham SC, I note, is not only an eminent senior counsel practising in the field of medical negligence but was formerly a medical doctor.

36. The confidential opinion is extremely thorough, spanning 28 pages (excluding the signature page). It undertakes a careful and detailed analysis of, inter alia, the legal principles, litigation risk and the range of damages that may be awarded to the Plaintiff. I can say, without revealing the opinions contained in the document, that the consideration contained in the confidential opinion, with respect to both liability and quantum, is balanced and detailed in its analysis of the factors which bear upon an assessment of the strength of the Plaintiff’s claim.

37. Having considered that opinion, along with my own independent assessment of the very significant disputes in the competing expert evidence, I am satisfied that the settlement that was finally achieved, after an unsuccessful mediation conducted by Mr Downing SC and a further unsuccessful informal settlement conference, should be approved by the Court in terms of the consent judgment (the Consent Judgment). The judgment sum in the Consent Judgment is $XXX plus costs as agreed or assessed, of which $XXX is in respect of the claim under the Compensation to Relatives Act 1897 (NSW).

38. It has been noted by Weinstein J in Caicedo v South Western Sydney Local Health District [2025] NSWSC 1550 at [6]–[8] as follows:

“6 In an application for approval of a settlement pursuant to s 76(3) of the Act the Court’s function is protective. The question is whether the proposed settlement is beneficial to the interests of, in this case, the plaintiff under an incapacity, i.e. the third plaintiff, or in his best interests: See Permanent Trustee Company Limited v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (‘Mills’) at [29]; Budini v Sunnyfield [2021] FCA 1540 at [10].

7 It is the Court’s responsibility to determine this question albeit with the assistance of confidential advice provided by counsel: See Mills at [29]; Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 at [27] (‘Scandolera’).

8 In its determination the Court is to consider the ‘advantages and disadvantages of the litigation continuing not only in terms of whether a 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 a plaintiff if the litigation were to continue’: Scandolera at [29].”

39. The proceedings commenced by the Plaintiff involved complicated issues, including some difficult questions of causation. The pleadings raised a very considerable range of matters such that the outcome of the proceedings would be difficult to predict. This carried significant risks to all parties, both as to the outcome and the quantum of damages awarded by the Court. For these reasons, I consider that the proposed settlement is beneficial to the Plaintiff and her son and in their best interests.

Orders

40. The Court notes:

41. This matter has settled subject to approval, in accordance with the terms of the consent judgment (the Consent Judgment) signed by the legal representatives of the parties and filed with the Court on 24 July 2026.

42. The advance payment to Medicare of 10% of the judgment sum referred to in Notation 2(a) of the Consent Judgment will be deducted from the Plaintiff’s share of the sum referred to in Order 1(b) of the Consent Judgment.

43. The Court orders:

44. The Court approves the proposed settlement of the Compensation to Relatives Act 1897 (NSW) claim or alternative claim under s 15B of the Civil Liability Act 2002 (NSW) and s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) as set out in Order 1(b) of the Consent Judgment pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).

45. The Court makes orders and notations in accordance with the Consent Judgment.

46. Of the sum referred to in Order 1(b) of the Consent Judgment:

(a) the Plaintiff is to receive $XXX plus costs as agreed or assessed; and (b) [the Plaintiff's son] is to receive $XXX.

4. Pursuant to s 77(2) of the Civil Procedure Act 2005 (NSW), the sum referred to in Order 3(b) of these orders is to be paid into Court pending an application for the appointment of a manager of the estate of [the Plaintiff's son].
5. The confidential material placed before the Court on behalf of the Plaintiff will be retained in the Court file in an envelope marked “Only to be opened by order of a Judge”.

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