Solicitors:
Marsdens Law Group (Plaintiff)
HWL Ebsworth Lawyers (First Defendant)
Avant Law Pty Ltd (Second, Third, and Fourth Defendants)
File Number(s): 2008/289145
[2]
Judgment
This application for approval of a settlement sought by Master Dean Parratt (the plaintiff) came before me in the Duty List on Friday 10 June 2016. Because I was told that the matter was listed for a full hearing as to liability and damages on Monday 20 June 2016, and in order to oblige the parties with a prompt judgment, I shall be concise.
Approval of the proposed settlement is required under s 76 of the Civil Procedure Act 2005 (NSW) because the plaintiff is aged 11 years, having been born in March 2005. It is also necessary because there is no dispute between the parties that he is profoundly physically and intellectually disabled, as a result of which he appears by way of his father, Mr Scott Parratt, as his tutor.
Background
The plaintiff was born on 7 March 2005 at a private hospital run by the first defendant. The second defendant is an obstetrician/gynaecologist; the third defendant is an anaesthetist; and the fourth defendant is a paediatrician. In a nutshell, the contention of the plaintiff (by way of an amended statement of claim filed on 11 June 2015) is that his birth was handled negligently, and that that negligence led to the severe disabilities from which he suffers.
In helpful oral submissions, counsel for the plaintiff explained that a number of issues with regard to liability and damages would be hotly disputed at any trial. They would include whether the observed uterine contractions of the mother of the plaintiff, and his foetal heart rate, were so abnormal for a period of 20 minutes or so as to call immediately for intervention. The plaintiff contends that they were; the case for the defendants is that the abnormality receded after 20 minutes or so, and the doctors managing the labour were entitled to observe and await developments.
The second important point of dispute is whether, from that early stage, urgent steps should have been taken to have the plaintiff delivered by caesarean section. The contention of the plaintiff is that that is indeed the case; the defendants resist that proposition.
The third point of dispute is the appropriateness of the administration of a medication that is a naturally occurring hormone, in order to increase the strength and frequency of uterine contractions. The position of the plaintiff is that that medication should not have been administered at all, and in any event was administered for too long; the position of the defendants is that the medication was an appropriate step to take.
A further dispute between the parties is whether or not there was an inordinate delay in the performance of an urgent caesarean section.
Finally with regard to the adequacy of medical treatment, the position of the plaintiff is that, about six or seven hours after delivery, he commenced to stop breathing for periods, during which he was deprived of oxygen to a degree. His case is that those episodes were seizures, and it was imperative that he be transferred to a hospital with greater resources. Again, the defendants resist that allegation.
Quite apart from those issues about appropriateness of medical care, I was informed that the question of causation would be hotly disputed at any trial as well. The position of the plaintiff, as I have said, is that his disabilities arise from the negligence of the defendants during the labour of his mother. The position of the medical experts qualified by the defendants is that the undoubted disabilities of the plaintiff could well have arisen from causes that developed between one and five days before labour commenced.
Separately, counsel for the plaintiff made the point that, if the injury to the plaintiff did occur during labour, but it was occasioned before the allegedly negligent treatment commenced, the plaintiff would self-evidently fail as well.
Turning to damages, counsel explained that, although there is no dispute (as I have said) that the plaintiff is profoundly disabled, there remain areas of contention here as well. They include the life expectancy of the plaintiff (thereby affecting calculations about funds for necessary future care); the question of when professional care would be needed in the future, as a result of the commitment over many years of the parents of the plaintiff to his care; the question of the cost of appropriate accommodation for the plaintiff; and the question of the degree of technological assistance that the plaintiff would require.
In short, it was said that, if there were a full-blown hearing in several days' time, there is a plethora of issues in dispute, some or all of which could be determined adversely to the plaintiff.
Evidence
A great deal of evidence was placed before me, the majority of which consisted of medical reports pertaining to the plaintiff. They show that there has been a thorough, ongoing investigation by the solicitors for the plaintiff with regard to the circumstances of his birth, and of his condition and needs, both now and into the future.
I was told that the matter was the subject of a mediation that concluded successfully very recently.
I also received an affidavit from the tutor, expressing his full understanding of the settlement that is proposed; his satisfaction with it after reflection; and his desire (along with that of his wife, the mother of the plaintiff) that the future of the plaintiff be fully assured, and that they be freed of the stress and uncertainty of this pending litigation.
Confidential evidence was placed before me as well, without objection from any lawyer appearing for any defendant. Some of that was directed towards matters that, I was told, will be the subject of negotiation between parties in the future, and for that reason I was content to adopt the course contended for by counsel for the plaintiff.
Other confidential material included a confidential advice prepared by the two counsel appearing for the plaintiff. Of course, I shall not detail that advice in this open judgment. I shall simply say that it contains a comprehensive explanation of the evidential and forensic difficulties that could confront the plaintiff at a full hearing. The advice concludes with the contentment of counsel with the settlement proposal; I was told from the Bar table that between the two of them, those members of the Bar have an experience in this area of practice that is very substantial indeed.
In short, the position of counsel for the plaintiff was that the success of the claim is by no means assured with regard to liability, not least with regard to causation; that, even if liability is established, the maximal claim in damages may not succeed either; that the matter has been soundly prepared by the solicitor for the plaintiff, including with regard to extensive expert opinion; that there has been time for considered reflection about acceptance of the settlement proposal by those who love the plaintiff; and that two members of the Bar well-experienced in this area of practice are of the view that the proposal should be accepted.
Determination
Turning to my determination, the test to be applied by me is well-established, and is simply whether I am satisfied that the settlement is beneficial to the interests of the plaintiff under incapacity: see Permanent Trustee Company Ltd v Mills [2007] NSWSC 336; (2007) 71 NSWLR 1 at [19]; Fisher by her tutor Fisher v Marin [2008] NSWSC 1357 at [29] and [41]; and Institoris v Falconer [2012] NSWCA 298 at [2].
In all of the circumstances that I have summarised, I am satisfied that the test has been made out. It is true that the settlement sum (although very substantial) is well below the maximal claim that the plaintiff could make. But in light of the number and nature of the issues that could be determined adversely to the plaintiff, I think a cautious approach is soundly based. I also accept that the tutor is motivated by nothing other than love and concern for his young son. Finally, I am also satisfied that the deductions that are proposed are orthodox and unexceptionable. For all of those reasons, I am content to approve the settlement at which the parties have arrived.
In accordance with my understanding of the wishes of the parties, the quantum of the settlement will be kept confidential in my promulgated judgment.
Orders
I make the following orders by consent and without admission of liability:
1. Judgment for the plaintiff against the first, second, and fourth defendants in the sum of $ XXX ("the settlement sum") plus costs (including the plaintiff's costs against the third defendant) as agreed or assessed.
2. The first, second and fourth defendants to pay the settlement sum in the following proportions:
1. The first defendant to pay $ XXX;
2. The second and fourth defendants to pay $ XXX
1. Judgment for the third defendant.
2. The first, second and fourth defendants are at liberty to deduct and pay from the settlement sum any statutory refunds repayable to any State or Commonwealth government or statutory authority as required by law and to pay any refund to a third party as required by law or as agreed between the NSW Trustee and Guardian and the first, second and fourth defendants.
3. The first, second and fourth defendants will deduct and pay any refunds in accordance with paragraph 4 and will pay the balance directly to the NSW Supreme Court pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW).
4. Settlement funds shall be paid by the defendant within 28 days of the last of the following occurring:
1. service by the plaintiff on the first, second and fourth defendants of an original of this Consent Judgment sealed by the Court, or
2. receipt by the first, second and fourth defendants of a Notice from Centrelink in respect of any repayment, or
3. receipt by the first, second and fourth defendants of a completed Medicare Notice of Judgment or Settlement form pursuant to s 23 of the Health and Other Services (Compensation) Act 1995 (Cth), or
4. receipt by the first, second and fourth defendants of acknowledgement by the NSW Trustee and Guardian of the first, second and fourth defendant's intention to exercise the option of paying 10% of the settlement amount ($ XXX) to Medicare Australia by way of advance payment in accordance with the Health and Other Services (Compensation) Act 1995 (Cth).
1. No interest will be payable in respect of the settlement monies before the date the monies become payable under paragraph 6. Thereafter interest will only be payable on the settlement sum less any deductions made in accordance with paragraph 4.
2. The plaintiff's costs will be paid directly to the solicitors for the plaintiff, Marsdens Lawyers within 28 days of being agreed or assessed.
3. The Court notes the agreement of the parties that these terms are not to be disclosed except:
1. as required by law;
2. in circumstances where the first defendant seeks contribution or indemnity from a co-defendant or third party; or
3. as required to give effect to the agreement between the parties.
1. The hearing in the matter of 2008/289145 commencing on 20 June 2016 is vacated.
[3]
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: 18 August 2016
Parties
Applicant/Plaintiff:
Parratt by his tutor Parratt
Respondent/Defendant:
AME Properties Pty Ltd trading as St George Private Hospital