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Cases Cited: Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245
Budini v Sunnyfield (No. 3) [2021] FCA 1540
Gray bhnf Salasovicova v St Vincent’s Health Australia t/as Mater Hospital Sydney [2019] NSWSC 1402
Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336
Scandolera bhnf Robinson v State of Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451

Category: Procedural rulings

Parties: Petrina Brown (First Plaintiff)
John Brown (Second Plaintiff)
Angie Newman (Third Plaintiff)
Jessica Brown (Fourth Plaintiff)
Trinette Simms (Fifth Plaintiff)
Mehnah Brown bht Petrina Brown (Sixth Plaintiff)
John Brown bht Petrina Brown (Seventh Plaintiff)
Jaxon Brown bht Petrina Brown (Eighth Plaintiff)
Western NSW Local Health District (Defendant)

Representation: Counsel:
Ms JM Sandford (Plaintiff)
Solicitors:
Maurice Blackburn (Sixth, Seventh, and Eighth Plaintiffs)
Minter Ellison (Defendant)

File Number(s): 2024/243224

Publication restriction: Nil.

JUDGMENT

1. This application for judicial approval arises out of the resolution of a claim under the Compensation to Relatives Act 1897 (NSW) and three “nervous shock” claims.

Introduction

2. On 2 July 2021, Eve Brown died at Lightning Ridge, NSW. The day prior, she had attended the Lightning Ridge Multipurpose Health Service in Pandora Street, Lightning Ridge – a hospital facility operated by the defendant. She was admitted as an inpatient following her attendance shortly after 9:00am.

3. At around 5:45am on 2 July 2021, Ms Brown was found collapsed on the floor of the ward as a result of an uncontrolled haemorrhage arising from the rupture of a subscapular splenic haematoma. This rupture caused bleeding into the peritoneal area and caused Ms Brown to experience haemorrhagic shock. In the hours following this, her care was escalated, but she continued to deteriorate. Shortly after midday, she suffered a cardiac arrest and died at 1:17pm.

4. In consequence of Ms Brown’s death, proceedings under the Compensation to Relatives Act were commenced by Ms Brown’s mother, Petrina Brown (‘the first plaintiff’), seeking recovery under that Act on behalf of Ms Brown’s children: Mehnah Brown (date of birth: [REDACTED] – ‘the sixth plaintiff’); John Brown (date of birth: [REDACTED] – ‘the seventh plaintiff’); and Jaxon Brown (date of birth: [REDACTED] – ‘the eighth plaintiff’). Within that same statement of claim are claims for nervous shock brought by the first plaintiff and the children of Ms Brown as well as other family members: John Brown (Ms Brown’s father – ‘the second plaintiff’); Angela Newman (Ms Brown’s sister – ‘the third plaintiff’); Jessica Brown (Ms Brown’s sister – ‘the fourth plaintiff’); and Trinette Simms (Ms Brown’s sister – ‘the fifth plaintiff’).

5. The first plaintiff is the tutor in the proceedings which are brought on behalf of Ms Brown’s children. It is their “nervous shock” claims, and the claims under the Compensation to Relatives Act (including its apportionment), that require the approval of the Court.

6. All claims for damages arising out of the death of Ms Brown requiring approval have resolved. So too, I was advised, have those that do not require approval. The defendant has offered to resolve the Compensation to Relatives Act claim for [REDACTED], inclusive of funds management costs and funeral expenses ([REDACTED]), plus costs as agreed or assessed.

7. For the nervous shock claims brought by the children, the defendant has offered to resolve these claims as follows:

8. The sixth plaintiff: [REDACTED] inclusive of funds management costs, plus costs as agreed or assessed.

9. The seventh plaintiff: [REDACTED] inclusive of funds management costs, plus costs as agreed or assessed.

10. The eighth plaintiff: [REDACTED] inclusive of funds management costs, plus costs as agreed or assessed.

11. The first plaintiff seeks the Court’s approval of these settlements. However, there is a complication in relation to the claim under the Compensation to Relatives Act. It appears that Neville Flick, the biological father of the children who was living with Ms Brown at the time of her death, was neither identified as a dependant for whom the action was brought, nor notified of the action before the settlement was reached.

12. Ms JM Sandford, who appears for the plaintiffs and is highly experienced counsel in this area, submitted that unless and until Mr Flick’s position in relation to the settlement was ascertained (he has, I was advised, retained solicitors to act for him), approval of the dependency action could not occur. I agree – that necessarily follows from the requirement that only one action is permitted to be maintained for all dependants (see ss 4(1) and 5 of the Compensation to Relatives Act).

13. In support of the applications for approval (confined to the three nervous shock claims), I received the following:

14. Confidential opinions from counsel for the plaintiffs (Ms JM Sandford) dated 5 February 2026 (in relation to the sixth plaintiff) and 6 February 2026 (in relation to the seventh and eighth plaintiffs).

15. Affidavits from Mr Matt Pearson (the General Manager of the proposed fund manager) affirmed 24 September 2025.

16. Affidavits from the solicitor for the plaintiffs (Ms Naomi Spigelman) affirmed 5 and 6 February 2026.

17. An affidavit from the first plaintiff affirmed 6 February 2026.

18. Two volumes of expert and other evidence.

Background

11. The essential case for the plaintiffs may be summarised as follows.

12. Ms Brown’s demise was the result of the failure of the defendant – and its employees, for whom it is vicariously liable – to correctly diagnose that her presentation was not the result of a simple UTI, but rather was consistent with a range of other diagnoses, including urosepsis. The failure to consider any possible differential diagnoses meant that a range of other investigations – in particular, a contrast CT scan of Ms Brown’s abdomen – were neither considered nor undertaken. Furthermore, it meant that, despite Ms Brown’s presentation, her treatment was not escalated when the various signs and symptoms warranted this. In short, the case for the plaintiffs was that Ms Brown should have been medically evacuated from the resources-limited facility in Lightning Ridge to a hospital facility with diagnostic imaging, surgical, and intensive-care capabilities, and that had that occurred, the imaging would have revealed the subscapular splenic haematoma (and the severity of her pylelonephritis) and she would have received all necessary and appropriate treatment, including surgical intervention (a splenectomy).

13. Counsel for the plaintiffs, in her confidential advices, provided a thorough and insightful analysis of the breach and causation issues. Having reviewed the expert evidence, it suffices to record my complete agreement with the views she expressed.

14. At the time of her death, Ms Brown resided with her children and Mr Flick. Ms Brown also cared for, and provided “services” (in the legal sense used in this area) to, her children. Given the apportionment and approval of the dependency claim is not to proceed today, it is unnecessary to say anything further about the nature and extent of the services provided, nor deal with other aspects of that claim.

Approval: the relevant principles

15. When the Court is asked to approve a settlement of proceedings commenced by, or on behalf of, a person under a legal incapacity, its function is protective. The ultimate question is whether any compromise entered into is beneficial to the interests of the person, and thus in their interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 at [29] (‘Mills’); Budini v Sunnyfield (No. 3) [2021] FCA 1540 at [10].

16. It is the Court’s responsibility to determine this matter itself, albeit that it will be assisted – but not bound – by the provision of a confidential advice by the person’s legal representatives that they consider the settlement to be beneficial to, and in the interests of, the person: Mills at [29]; Scandolera bhnf Robinson v State of Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 at [27] (‘Scandolera*’*).

17. The Court, as part of its assessment, is to consider “the advantages and disadvantages of the litigation continuing not only in terms of whether the applicants 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].

18. The tutor must also provide their assent to the compromise. That has occurred in this case: see the first plaintiff’s affidavit affirmed 6 February 2026, pars 52-63.

Assessment and consideration

The nervous shock claims

19. In relation to each of these claims, I have given particular consideration to the advice from counsel, the affidavit from the solicitor for the plaintiffs, the evidence from the first plaintiff about her observations and assessment of each of the children (they have, since at least August 2022, lived with her and her husband (the second plaintiff)), the reports from the psychiatrist (a consultant family, child, and adult psychiatrist) qualified to provide a report in respect of each of them (Dr Christopher Rikard-Bell), and the competing reports from the psychiatrist qualified by the defendant (Dr Rosalie Wilcox).

20. The first plaintiff, in her role as tutor, supports the compromise of the nervous shock claims for each of the children, as I noted earlier, and so too do the solicitor and counsel for them. The settlement amounts proposed, across each of the claims, cover the claims for past and future medical expenses, non-economic loss, the possibility of some degree of diminution in earning capacity, and funds management.

21. Addressing these matters in some more detail across each of the claims:

22. The sixth plaintiff: the past medical expenses have been quantified (based upon a Medicare charge) at less than [REDACTED]. The future treatment needs relate to consultations with a psychologist. There was a difference of opinion between the experts qualified by the parties about how many consultations would reasonably be necessary, but, at its highest, and undertaking no discount for other possible contributing causes to the need for this treatment, the sixth plaintiff’s qualified psychiatrist suggested treatment costs of around [REDACTED].

23. The seventh plaintiff: there are no past medical expenses. The future treatment needs relate to consultations with a psychologist. There was a difference of opinion between the experts qualified by the parties about how many consultations would reasonably be necessary, but, at its highest and undertaking no discount for other possible contributing causes to the need for this treatment, the seventh plaintiff’s qualified psychiatrist suggested treatment costs of around [REDACTED].

24. The eighth plaintiff: there are no past medical expenses. The future treatment needs relate to consultations with a psychologist. There was a difference of opinion between the experts qualified by the parties about how many consultations would reasonably be necessary, but, at its highest and undertaking no discount for other possible contributing causes to the need for this treatment, the eighth plaintiff’s qualified psychiatrist suggested treatment costs slightly over [REDACTED].

25. Putting to one side the question of costs and funds management (addressed below), I am satisfied that the allowances made in the resolution of these claims for damages for non-economic loss under s 16 of the Civil Liability Act 2002 (NSW), and for the potential loss of some earning capacity in consequence, are appropriate. Each of these assessments involved issues about the contribution of concurrent non-tortious conditions (to put the matter generally). In this respect, it is sufficient to simply observe that, in relation to each claim, and on my own review of the evidence, I agree with the detailed assessments (and reasons), contained within the thorough advice from Ms Sandford. I am well satisfied that the compromise and resolution of the claims is beneficial to, and in the interests of, the children. To be clear, those considerations include other matters such as risks, the desirability of early finality, and the avoidance of the risk of further distress to the children should they be forced to litigate the claims in respect of the death of their mother. I therefore approve them.

26. Two issues remain. The first relates to the management of the funds for each child. The second relates to the possibility that there will be a solicitor and client component of costs deducted from any settlement.

Funds management

24. In relation to funds management, the first plaintiff seeks the appointment of TPT Wealth Limited (‘TPT’) as fund manager until each child attains majority, and, for the seventh and eighth plaintiffs, possibly longer given some of the underlying neurocognitive diagnoses that have been made.

25. TPT has provided cost breakdowns for funds management. They are as follows:

26. The sixth plaintiff (Mehnah Brown): [REDACTED].

27. The seventh plaintiff (John Brown): [REDACTED] (based on managing the fund until he attains majority) or [REDACTED] (based on managing the fund until he turns 25 years of age).

28. The eighth plaintiff (Jaxon Brown): [REDACTED] (based on managing the fund until he turns 25 years of age).

29. A number of matters should be noted about this aspect of the application.

30. First, the evidence from the first plaintiff was that she desires the settlement monies to be managed by TPT until the children attain majority: affidavit affirmed 6 February 2026, par 62. It appears that she has taken advice in connection with that decision, and she also refers to considering “the possible appointment of the NSW Trustee & Guardian to manage the proposed settlement sums”: affidavit affirmed 6 February 2026, par 60. However, on the current application, there is no evidence about matters such as the nature of the services the NSW Trustee & Guardian (NSWTG) provide and why, when compared to TPT, the latter was considered more appropriate, nor was there any evidence about the difference in cost, if any.

31. Secondly, whilst the Court undoubtedly has power to order that the settlement amount be managed by a private fund manager rather than the NSWTG, not uncommonly there is, amongst other evidence, evidence from the NSWTG indicating their position on the appointment of the particular fund manager: see generally the discussion in Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 at [290] (‘Ability One’). Here, however, there is no such evidence.

32. Thirdly, and to a degree following on from the second matter, whilst the position with respect to the sixth plaintiff is such that funds management will not (on the present evidence) be necessary beyond her attaining majority, the position is otherwise in relation to the seventh and eighth plaintiffs where, at least at present, there are realistic prospects of the need for this to continue beyond that time (hence the fees were calculated for each of them to around 25 years of age). However, for that to occur, orders relating to the management of their affairs would need to be made. A range of issues are presented by that scenario, including the cost to the seventh and eighth plaintiffs. The decision in Ability One addresses the various considerations that arise where further orders for the management of the affairs of a party are sought or necessary.

33. Finally, I am reluctant to order management of this kind not only given the above, but also because it impresses as sub-optimal to do this independently of any approval following resolution of the claim under the Compensation to Relatives Act.

34. The consequence is that, whilst I propose to approve the settlements, the orders that I make will only include the payment of those amounts into Court, pending further order.

35. In relation to solicitor/client costs, the first plaintiff has addressed this in her affidavit: she is aware that there is likely to be a gap between the solicitor/client costs and the party/party costs paid by the defendant, which will diminish the settlement sums for the children (affidavit affirmed 6 February 2026, par 57). The solicitor for the plaintiffs has, in a confidential exhibit to her affidavit (exhibit NTS-3), disclosed the legal costs incurred across the three claims, some of the negotiations between the solicitors for the parties in relation to those costs (including the apparent final offer made by the defendant’s solicitor in relation to costs, and the likely solicitor/client amount that would be outstanding if that offer were accepted or a higher percentage were secured presumably through costs assessment), and identified and calculated the possible shortfalls depending upon the extent of the recovery of party/party costs in each claim.

36. When solicitor/client costs are intended to be recovered in cases such as this, evidence of this kind is adduced at the time of approval to enable the Court to determine the amount – sometimes, as in this case, within a range – that would be received by a particular plaintiff. Here, given the evidence, if there is a shortfall between the solicitor/client costs and the party/party costs that are payable by the plaintiffs, in the ranges suggested in the solicitor’s affidavit, I nevertheless remain satisfied that the resolution remains beneficial to each of the plaintiffs and is in their interests.

37. It should be emphasised, however, that in arriving at that conclusion, I do not regard it as part of the Court’s function, in an application for judicial approval of a settlement sum, to undertake an assessment of the reasonableness of party/party costs (which is a matter for agreement between the parties, or in default thereof, assessment). Sometimes – and I emphasise, that is not this case – solicitor/client costs that are proposed to be charged require the Court, in discharging its protective functions, to address such an issue. But in the balance of cases, whether – and, if so, to what extent – any shortfall between those costs should be met from the settlement fund would be a matter for those charged with responsibility for its management: see the discussion in Gray bhnf Salasovicova v St Vincent's Health Australia t/as Mater Hospital Sydney [2019] NSWSC 1402 at [10]-[13].

38. In these particular circumstances, however, I would simply note the following in relation to the party/party costs. The matters have a degree of factual and legal complexity, and I have no doubt that Ms Brown’s treatment records (and those created as part of the Inquest into her death) are substantial. The overall costs claimed impresses as proportionate and reasonable given these matters. Furthermore, I regard the fees proposed to be charged by counsel for the plaintiffs as modest. It should be noted that the standard and quality of the material that I received on this application by counsel for the plaintiffs was of an exceptionally high order and of considerable assistance.

Orders

36. For the above reasons, I make the following orders:

37. Pursuant to section 76(3) of the Civil Procedure Act 2005 (NSW), the Court approves settlement of the sixth plaintiff's claim against the defendant and orders Judgment for the sixth plaintiff against the defendant in the sum of [REDACTED] plus costs as agreed or assessed (the Sixth Judgment Sum).

38. Pursuant to section 76(3) of the Civil Procedure Act 2005 (NSW), the Court approves settlement of the seventh plaintiff's claim against the defendant and orders Judgment for the seventh plaintiff against the defendant in the sum of [REDACTED] plus costs as agreed or assessed (the Seventh Judgment Sum).

39. Pursuant to section 76(3) of the Civil Procedure Act 2005 (NSW), the Court approves settlement of the eighth plaintiff's claim against the defendant and orders Judgment for the eighth plaintiff against the defendant in the sum of [REDACTED] plus costs as agreed or assessed (the Eighth Judgment Sum).

40. The defendant is to pay the Sixth Judgment Sum less any deductions into Court pursuant to s 77(2) of the Civil Procedure Act 2005 (NSW).

41. The defendant is to pay the Seventh Judgment Sum less any deductions into Court pursuant to s 77(2) of the Civil Procedure Act 2005 (NSW).

42. The defendant is to pay the Eighth Judgment Sum less any deductions into Court pursuant to s 77(2) of the Civil Procedure Act 2005 (NSW).

43. Subject to approval as aforesaid, the Court notes the agreements of the parties as follows:

(a) The sixth, seventh, and eighth plaintiffs (collectively, the plaintiffs) acknowledge by their tutor that they have been informed that they may be liable to pay an amount (the Past Benefit) pursuant to the Health & Other Services (Compensation) Act 1995 and/or the Health & Other Services (Compensation) Care Charges Act 1995, and that the defendant is at liberty to deduct from the Judgment Sums and pay to Medicare the Past Benefit. (b) The defendant is authorised to deduct from the Judgment Sums any amount due under the Notice of Past Benefits under the Health & Other Services (Compensation) Act 1995 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 & Other Services (Compensation) Act 1995 of the Judgment Sums. (c) The plaintiffs undertake to repay any amount owing to Centrelink and indemnify the defendant in respect of any such amounts. The defendant is at liberty to deduct from the said Judgment Sums to pay to Centrelink any monies owing to it (the Social Security repayment).

8. The plaintiffs, by their tutor, acknowledge that the defendant will advise Centrelink as required by section 1183 of the Social Security Act 1991, as well as Medicare Australia, of the Judgment Sums. The plaintiffs authorise the defendant to provide Centrelink and Medicare Australia with a copy of this Consent Judgment together with the required notices of settlement.
9. The seventh plaintiff, by his tutor, acknowledges that under the National Disability Insurance Scheme Act 2013, the defendant is obligated to repay the National Disability Insurance Scheme (NDIS) for any recoverable amounts that have been paid in respect of the plaintiffs as set out in that Act, and agrees that the defendant is required to pay out of the Seventh Judgment Sum any amounts repayable to the NDIS, including (but not limited to) any amounts the subject of a notice issued (or to be issued) to the seventh plaintiff, the defendant, or to the defendant’s insurer.
10. Interest shall not run on the Judgment Sums until 28 days after the happening of the last of the following events:

(a) Receipt by the defendant's solicitors of a Direction as to Payment signed by the plaintiffs' tutor; (b) Receipt by the defendant's solicitors of a duly executed and sealed consent judgment; (c) Receipt by the defendant's solicitors of a notice of 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 in respect of each of the plaintiffs; (d) Receipt by the defendant's solicitors of a notice from the National Disability Insurance Agency requiring payment of any amount pursuant to s 112(2) of the National Disability Insurance Scheme Act 2013, or providing a clearance from paying any amount pursuant to the provisions of the National Disability Insurance Scheme Act 2013 in respect of the seventh plaintiff.

whichever is the later.

11. The plaintiffs undertake to repay any amount owing to any private health insurance, income protection insurer, and/or other service provider and indemnify the defendant in respect of any liability the defendants may have in respect of such amounts.
12. If, after the payment of the Judgment Sums, any further Notice of Charge is received and is payable by the defendant in relation to services received by the plaintiffs relevant to this claim, the plaintiffs will repay the defendant any amount the defendant is required to pay.
13. Pursuant to Rule 36.1A of the Uniform Civil Procedure Rules 2005 (NSW), the parties agree that these terms are not be disclosed except:

(a) as required by law; or (b) as required to give effect to the agreement between the parties; (c) to enforce the judgment; (d) by the defendant to its insurer and/or re-insurer and/ or any relevant insurance broker; (e) by the parties' professional advisers; (f) for the purpose of seeking contribution or recovery of the Settlement Sum from another entity; (g) to permit voluntary disclosure to relevant state agencies, including the Ministry of Health and the Minister, so as to facilitate compliance with government policies and the principles of responsible government; or (h) with the consent of the other parties to this judgment.

14. The defendant will notify Medicare and Centrelink of the settlements within 14 days of receipt of the sealed Consent Judgment.
15. The confidential material placed before the Court on behalf of the plaintiffs will be retained by the Court in an envelope marked "only to be opened by order of a Judge", being exhibits NTS-2, 3, and 4 of the affidavit of Ms Spigelman affirmed 5 February 2026, and NTS-5 from the affidavit of Ms Spigelman affirmed 6 February 2026.
16. Direct that, by 13 February 2026, 5pm, the parties jointly approach the Chambers of the Professional Negligence List Judge in order to relist the claim under the Compensation to Relatives Act for directions in relation to the outstanding dependency issue.

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