This matter comes before me today by way of an application for approval of a settlement pursuant to s 76 of the Civil Procedure Act 2005 (NSW). Mr Higgs SC appears with Mr Chiu for the plaintiffs, and Mr Downing SC appears for the defendant.
I am asked to approve two settlements being the settlement effected by the first plaintiff, Electra Mouzas, and the settlement effected by the third plaintiff, Savannah Mouzas. Electra was born in 2017 and is now six. Savannah is now 10 and is in year 4 at school.
As both Electra and Savannah are persons who are under a legal incapacity, any settlement must be approved by the Court pursuant to s 76(3) of the Civil Procedure Act. The Court's function on any such application is essentially protective. I must review all of the evidence presented on the application and be satisfied that the proposed settlement is for the benefit of the plaintiff (Permanent Trustee Company Limited v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336).
The question of whether any settlement is for the benefit of a person under a legal incapacity may turn on whether there is a sufficient prospect of obtaining a more favourable judgment so as to outweigh the value of certainty which arises from the settlement. I will keep those principles in mind in considering these particular settlements.
The proceedings arise from the antenatal and perinatal management of the second plaintiff, Ms Bark, who is the mother of both Electra and Savannah. The proceedings arise from events which occurred during the birth of Electra on the evening of [redacted] 2017.
There are four plaintiffs, being Electra as first plaintiff, Ms Bark as second plaintiff, Jefferson Mouzas, who is Electra's father, as third plaintiff and Savannah as the fourth plaintiff. Both Electra and Savannah bring proceedings by their tutor, Ms Bark.
All of the claims have been settled, as is reflected in the proposed consent orders. I am not required to approve the settlement of the claims by Mr Mouzas or Ms Bark as they are not persons under a legal incapacity. The settlement of the claims by Electra and Savannah require approval.
It is not necessary in this judgment that I detail all of the allegations and evidence which was obtained leading to the settlement. I have received the confidential advice of senior and junior counsel for the plaintiffs, I am also in receipt of an affidavit from the solicitor for the plaintiff setting out the amounts involved and what will have to come out of the settlements. I am also in receipt of an affidavit from Ms Bark who refers to the advice given to her about the appropriateness of the settlement, the likely implications regarding benefits under the National Disability Insurance Scheme, and her view that the proposed settlements are in the best interests of Electra and Savannah.
Of course, I have regard to Ms Bark's views, but my role and function is to come to an independent view so as to ensure that the settlements are in the best interests of the plaintiffs. This is particularly so in circumstances in which Electra is now only six years old and, on any view, has what I will describe as a long life expectancy.
Put simply, Electra was delivered vaginally in the breech position despite the fact that there had been an earlier plan for a caesarean delivery. Unfortunately, during delivery she suffered a hypoxic brain injury as a result of cord compression. She has been left with significant disabilities as set out in the amended statement of particulars. Those difficulties include a profound intellectual disability, developmental delay in various parts of her body, cerebral palsy, developmental dysplasia of the hip, impaired muscle movement and tone, dystonia and spasticity, difficulties with mobility, limited or no speech, and some vision impairment. I do not mean to be in any way limiting the level of disability by only referring to those particular matters, but they provide a picture of the level of disability from which Electra suffers and will continue to suffer on an ongoing basis.
As identified by senior and junior counsel for the plaintiffs, all of the plaintiffs pursue action against the defendant on a number of different bases; that is, they allege that there was negligence on four bases. The primary basis appears to be that the medical experts involved should have made a decision to stick with the original plan to deliver by caesarean section. They said that whilst there may have been some risk associated with a caesarean, the risks were far greater in a vaginal delivery, particularly for a baby presenting in a breech condition.
Secondly, the plaintiff asserts that the problems which arose were caused by a delay in the treatment of Ms Bark on her arrival at the hospital. As I understand it, the defendant suggests that the development of the labour was unexpectedly rapid such that this was something which they could not have anticipated.
The third allegation is that the defendant should have scheduled an elective caesarean by about 38 weeks gestation instead of allowing it to proceed to the date, which I understand was planned to be 39 weeks. There appears to be an issue as to the guidelines in this regard. There is some evidence to suggest that those advising Ms Bark at the time were unwise to allow the pregnancy to continue.
The fourth allegation is that Ms Bark should have been advised to attend hospital on 30 October 2017 when she reported cramping pains.
The defendant disputes that there has been any negligence at all. The defendant relies on s 5O of the Civil Liability Act 2002 (NSW) in this regard, suggesting that its conduct was consistent with competent professional practice.
There is conflicting expert medical evidence. I have been provided with extensive medical material including the plaintiffs' expert medical material on breach of duty of care and causation and the defendant's expert medical and causation evidence.
Having considered that evidence and having regard to the confidential advice with which I have been provided, I accept that the outcome of these proceedings is not certain. On one view, it might be said that all of the plaintiffs have a good case on liability, that is in establishing breach of duty and causation, but there is medical evidence to the contrary.
Having regard to the level of the settlements, it is my function to assess and determine whether the prospects of Electra and Savannah are such that it would be in their interests to settle the proceedings for the amounts that have been agreed.
There are a number of important factors that go into such a decision. One is obviously an assessment of the plaintiffs' prospects of success and prospects of obtaining a better result. Another is the benefits that generally arise from settlement of the proceedings. An important factor in that regard remains the wishes of those who have been caring for, in particular, Electra as well as Savannah and will continue to do so, perhaps for the rest of their lives.
In cases such as this, it is always important to recognise the role and care that has been provided by the plaintiffs' parents on a full-time basis. I often find it remarkable to review the evidence and read of the absolute dedication of the parents to their children's every waking moment. This case is no exception.
Having said that, it is also important to recognise that there can never be full compensation for the level of care that has been provided by the parents in the past or might be provided by the parents in the future. Nor can there ever be full compensation in respect of the level of commercial care that might be required into the future. It must be borne in mind that the defendant's obligation is to pay reasonable damages. There is always an issue in a case such as this as to what is reasonable. It is apparent from material I have been provided with that, despite the level of care which has been provided and will be provided into the future, compensation would not be payable in respect of every hour that has been spent or will be spent into the future.
I mention these matters because even on a "full" assessment of damages, that is no discount for risk, the amount that Electra might recover will always remain uncertain because of issues as to what is reasonable in all the circumstances. In any event, as far as Electra's claim is concerned, there can be no doubt that the settlement sum is a significant sum. It reflects some compromise for risk, that is some compromise on liability, but it does not seem to me that it reflects what I would describe as a very significant discount for liability. Again, I use words general in nature because I am not meaning to suggest to either party that in some way the discount for risk from the defendant's perspective was too big or from the plaintiffs' perspective was similarly too big. This is a case in which the outcome is not certain and any settlement would necessarily reflect some compromise for the risks associated with pursuing the matter to hearing. Further, this is a case in which the damages which the plaintiff Electra would recover are not certain.
All I can say is that having reviewed the confidential advice, the amounts claimed and the various heads of damages, it seems to me that all amounts that could be claimed have been claimed and have been factored in.
In the circumstances, particularly having regard to the amount involved and what must be the benefits of settlement even at this early stage of Electra's life, it seems to me that the settlement is in the interests of Electra and should be approved. I particularly have regard to the fact that, although there may be some prospect of obtaining a more favourable judgment, the value of certainty in a case like this is particularly important and the very significant settlement sum reflects an appropriate compromise.
As far as Savannah is concerned, she claims to have suffered a psychological illness consequent on what happened with Electra. There is competing medical evidence as to the nature and extent of any illness and disability. Indeed, the defendant's expert, Dr Antony Milch, says that she suffers from no significant current psychopathology. Her medicolegal expert referred to her struggling at school and having stress. He referred to Savannah as suffering from separation anxiety disorder.
I must say that I did not necessarily find Dr Rikard-Bells' reports compelling. In any event, the amount of the settlement reflects what I will describe as a very satisfactory settlement for Savannah, and I have no doubt that it is in her interest to settle the proceedings at this time and move on with her life as far as she can. By that I mean move on and move away from the litigation.
In the circumstances, I approve the settlement effected by Savannah.
As such, I make the following orders:
1. Pursuant to s 76 of the Civil Procedure Act, the Court approves the settlement on behalf of the first plaintiff in accordance with the consent judgment signed by the parties on 22 December 2023.
2. Pursuant to s 76 of the Civil Procedure Act, the Court approves the settlement on behalf of the fourth plaintiff, Savannah Mouzas, in accordance with the terms of the consent judgment signed by the parties on 22 December 2023.
3. I make orders in accordance with paragraphs 1, 2, 5, 6 and 7 of the consent orders. I note paragraphs 3, 4, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the consent orders, and I will sign the consent orders and place them with the papers.
[3]
Amendments
12 March 2024 - date of birth of first plaintiff removed from paragraph [2] and [5].
13 March 2024 - case title
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: 13 March 2024