(6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor."
5 I therefore ordered that the tutor be removed pursuant to UCPR 7.18(1)(a) and stayed the proceedings pursuant to UCPR 7.18(3) pending the appointment of a new tutor. Having regard to what had occurred, and to the extent to which all interested parties had been legally represented, I dispensed with service upon the plaintiff of a notice of motion to remove the tutor, by order otherwise pursuant to UCPR 7.18(4).
6 The matter has now returned to me. I am asked to do two things. First, to deal with an application by Barbara Mottershead to be appointed as the plaintiff's tutor. That application is supported by her affidavit sworn 27 August 2010. It contains evidence that Ms Mottershead consents to being appointed as the plaintiff's tutor but does not in terms contain evidence that she does not have any interest in the proceedings adverse to Mr Porter's interests, as required by UCPR 7.18(5). There is sufficient evidence that Mr Porter is a disable person. I am content in the circumstances of this case to proceed upon the basis that I will have been provided with evidence that Ms Mottershead does not have an interest adverse to that of Mr Porter before I make final orders on her application.
7 Secondly, subject to her appointment, I am asked by Ms Mottershead to approve the settlement. In short, the facts that give rise to the proceedings are as follows. Mr Porter was admitted to hospital and subsequently became severely disabled as the result of an infection. The single most important issue in the proceedings for present purposes, and the most troublesome, is whether Mr Porter had been exposed to the infection before or after he was admitted to the hospital. That issue arises in the following way.
8 Mr Porter sues Dr Le, who was his general practitioner, and as such responsible for the management of health issues affecting him from 26 July 2004. Mr Porter alleges that Dr Le negligently prescribed Panafcort, a corticosteroid, at a consultation on that day, which compromised Mr Porter's immune response to an infection from which he was then suffering. The Panafcort also masked the true nature of Mr Porter's illness over the next few days. As a result of his compromised immune response, Mr Porter suffered from a Klebsiella pneumoniae septicaemia and endotoxaemia, which led to a Friedrich-Waterhouse like syndrome with intravascular coagulation, thrombosis and infective emboli moving to the adrenal gland, retinal arteries and to the brain causing brain abscesses. Mr Porter thereafter sustained severe brain damage and now requires 24 hour per day care. He currently resides permanently in a nursing home.
9 Dr Le contends either that the better scientific medical analysis supports the likelihood that Mr Porter became infected only after he was admitted to hospital for the treatment of a condition that he sustained without negligence on the part of Dr Le, or alternatively that Mr Porter simply cannot establish on the balance of probabilities that he contracted the infection before, and not after, he was admitted to hospital.
10 I have been provided with a significant amount of expert medical opinion and supporting material. I have also been given the benefit of a detailed and thorough confidential written opinion from Mr Graham of counsel, who appears for Mr Porter. It is sufficient to observe that there is a fierce contest between the parties on the question of Dr Le's liability and that the available expert material does not presently suggest any obvious or inevitable outcome in the ultimate resolution of the contest. It cannot be said, upon the basis of this material considered at this preliminary stage, that Mr Porter will win and Dr Le will lose or vice versa. Each would appear to have an arguable case.
11 In these circumstances, I am not prepared to approve the settlement. Section 76 of the Civil Procedure Act 2005 provides as follows:
" 76 Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity