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) ("CPA"). Mr Maybury of counsel appears for the plaintiff and Mr Hutchings of counsel appears for the defendants.
As the plaintiff is a person who is under a legal incapacity, any settlement must be approved by the court pursuant to s 76(3) of the CPA.
As has often been said, the Court's function with respect to any such application is essentially protective. I must review all of the evidence presented on the application to be satisfied that the settlement is for the plaintiff's benefit (see Dickson v Parker [2023] NSWSC 569).
That question really turns on whether there are sufficient prospects of obtaining a more favourable judgment for the plaintiff, such as to outweigh the value of certainty which arises from the settlement. Those principles are particularly apt in this matter, having regard to the plaintiff's limited life expectancy.
In support of the application, the plaintiff relies on an affidavit of the plaintiff's wife and tutor, Julieann Schultz, dated 2 August 2023 and the affidavits of Alix Shanahan dated 1 and 2 August 2023.
The affidavit of Ms Shanahan of 2 August 2023 primarily deals with costs issues. I have marked that confidential. It has not yet been provided to the solicitors for the defendants, as it contains estimates as to the amount of costs that the plaintiff hopes to recover from the defendants following the usual negotiation process. I am sure the defendants understand why that affidavit has not been provided to them at this time.
I am also in receipt of a confidential advice of counsel for the plaintiff, Mr Maybury, dated 1 August 2023. The confidential advice of Mr Maybury includes his views as to the risks associated with the litigation, the potential damages and likely result and the benefits of the settlement. I am grateful to Mr Maybury for providing such a comprehensive and well thought out advice at this time.
The matter relates to medical negligence proceedings brought by the plaintiff and his wife, who is the second plaintiff. The claim by the second plaintiff is for psychological injury. It has also been settled and does not require my approval, as she is not a person under any legal incapacity. The plaintiff (Mr Schultz) proceeds through his tutor because of cognitive impairments that have arisen recently.
The plaintiff is currently 40 years old. On 25 November 2015, he suffered a seizure at home. Following investigation at the Toowoomba Base Hospital, a mass was detected in his brain. He subsequently consulted a neurosurgeon, who advised him that the mass was anaplastic astrocytoma. He was referred to a radiation oncologist and a medical oncologist.
The plaintiff obtained advice on 30 December 2015 to the effect that the tumour was inoperable. He then sought an alternative opinion from the second defendant, whom he met on 19 January 2016. The plaintiff was advised that he was a candidate for resection and that resection would give him a greater life expectancy. He underwent resection under the hands of the second defendant on 25 January 2016.
On the plaintiff's case, of critical importance is what occurred on review by the second defendant on 1 March 2016. According to the plaintiff, on review by the second defendant, he was advised that he should keep radiation therapy or chemotherapy as an ongoing treatment "up his sleeve" for when the tumour inevitably progressed. The second defendant does not accept that such advice was given.
I have read the second defendant's statement. Whilst the statement is in somewhat of an unusual form (it seems to be part statement/part notes), the parties accept that there is no document recording the advice that the plaintiff asserts was given. As such, there remains a dispute between the parties as to whether the advice was provided. As they disagree on whether the conversation occurred, the outcome of that factual dispute may depend on which witness is accepted.
Following his operation, the plaintiff partially recovered and was able to return to his normal life as much as possible, including working. However, by February 2020, his condition had deteriorated. He underwent a further resection of the tumour at the Prince of Wales Hospital on 4 March 2020. Unfortunately, during the second surgery, he suffered a stroke, which left him with left sided hemiparesis. He has no use of his left hand. It is said that he also suffers from memory issues or other cognitive problems, which might explain the need for a tutor.
The plaintiff's primary case is that during the consultation with the second defendant on 1 March 2016, he should have been advised to embark on radiation therapy and/or chemotherapy. It is the plaintiff's case that this is standard practice and that the second defendant breached his duty of care in not providing that advice. The plaintiff asserts that his life expectancy would have increased if he had undergone such alternative therapy following the resection.
The plaintiff also pursues another argument, being that there was a failure to properly detect the progression of his disease in July 2019. Again, it is said that if the progression had been properly detected, his life expectancy would have been greater (although one of the plaintiff's own experts casts a doubt on that proposition).
I have reviewed the extensive material relied upon by the plaintiff. The evidence includes expert reports from a neurosurgeon, a radiation oncologist, a neuro-oncologist and a neuropsychologist, as well as other expert reports on damages issues (including from an oncologist and an occupational therapist). The defendants have also obtained evidence from a radiation oncologist, an oncologist and a neurosurgeon, as well as expert reports on the damages issue. Further, I have reviewed the evidentiary statements of the plaintiff and Ms Schultz, as well as the evidentiary statement of the second defendant.
The evidence indicates that this is a complex matter and there remain some factual issues which will need to be determined, should the matter proceed to a full hearing. The matter is listed for a seven-day hearing commencing 7 August 2023 before Chen J.
The plaintiff receives significant support on the question of breach from his experts: specifically, Professor Susan Pendlebury and Professor Paul D'Urso. On the other hand, there is evidence from Professor Michael Fay on behalf of the defendants to the effect that the treatment afforded by the second defendant was appropriate and reasonable in all the circumstances. I note that those opinions might depend on the factual assumptions underpinning the reports.
Having said that, in cases with competing expert and factual evidence, the outcome cannot be described as certain. All litigation involves risk and a case such as this (which has some complexities) must involve some element of risk, albeit it might be thought that the evidence of the plaintiff and his experts is strong.
Further, there are significant issues both on causation and life expectancy absent the alleged negligent treatment of the second defendant. There are differing views as to whether the undertaking of such alternative therapies - that is, radiotherapy and chemotherapy - would have necessarily improved the plaintiff's life expectancy or averted the need for the further surgery, which ultimately led to the plaintiff suffering a stroke. These matters must all be considered in assessing whether the settlement is for the benefit of the plaintiff.
Further, there is another important factor in assessing whether the settlement is for the benefit of the plaintiff. The plaintiff's life expectancy now appears to be limited, perhaps to less than a year. For reasons which are obvious, the plaintiff and his tutor hope to effect a settlement to bring these proceedings to an end and avoid what would undoubtedly be a difficult and emotional period of litigation. That is important to bear in mind in a case such as this.
I have carried out my own independent assessment of the likely range of damages that the plaintiff might receive. At least on one view, the settlement reflects the top of the range for the plaintiff, in the sense that it reflects little compromise on damages or causation issues. However, if all aspects of the plaintiff's case were accepted, including every opinion he relies upon, the plaintiff may receive more.
Having regard to all of these matters, my own view of the evidence and the opinion of Mr Maybury (who is very experienced in these sorts of cases), I am satisfied that this settlement is for the benefit of the plaintiff and should be approved.
I should add that I have had regard to the affidavits of Ms Shanahan and her statements as to the amount that will need to be deducted. I have regard to her estimate of legal fees, noting that, as the settlement was only effected yesterday and the hearing is due to commence next Monday, there has been no opportunity to exchange views with the solicitors for the defendants at this time.
I would only say it is an unfortunate reality in these types of complicated medical negligence cases that the costs typically remain high. However, I appreciate the analysis undertaken by the solicitor for the plaintiff at this time as to the upper figure for costs and disbursements, the amount she hopes to recover on solicitor/client costs and the gap which will be necessarily paid by the plaintiff.
In the end, this is a case which is best settled for all the reasons I have identified. The settlement is one which is, in my view, a good result for the plaintiff in all the particular circumstances, although it reflects a compromise (as might be expected) on the part of the defendants.
Pursuant to s 77 of the CPA, I have the power to make an order as to payment of the settlement monies, albeit the plaintiff is proceeding by way of a tutor and is under a legal incapacity. Having regard to the evidence of the second plaintiff (who is also the plaintiff's tutor) and having regard to the evidence about the plaintiff's limited life expectancy, I am satisfied that the appropriate order should be that the settlement money be paid directly to the plaintiff, rather than invested through the tutor or through the Public Trustee. In the circumstances, I propose to make that order.
I make orders 1, 2, 3 and 8, as set out in the consent judgment:
1. The first and second plaintiffs discontinue the proceedings against the first defendant with no order as to costs.
2. Without admission of liability, judgment for the first plaintiff in the sum of [redacted] plus costs as agreed to be assessed.
3. Without admission of liability, judgment for the second plaintiff in the sum of [redacted] including costs.
4. No interest is payable in respect of the sums set out in paragraphs 2 and 3 until 28 days after the latest of the following:
1. entry of Judgment;
2. receipt of an authority to receive satisfactory to the second defendant's solicitors;
3. receipt by the defendant's solicitors of a copy of the Judgment duly signed or initialled by the Registrar; or
4. receipt by the defendant's solicitors of any notice from Centrelink setting out the amount repayable, if any, to that entity.
I add order 13 to the consent judgment, as follows:
1. Pursuant to s 77 of the Civil Procedure Act 2005 (NSW), I order that the sum referred to in paragraph 2 of the consent judgment be paid to directly to the second plaintiff on behalf of the first plaintiff or as the second plaintiff directs and I note that the second plaintiff has the Power of Attorney of the first plaintiff in any event.
I otherwise note the matters referred to in paragraphs 4, 5, 6, 7, 9, 10, 11 and 12 of the consent judgment.
[2]
Amendments
23 August 2023 - Judgment certification stamp removed.
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Decision last updated: 23 August 2023
Parties
Applicant/Plaintiff:
Schultz
Respondent/Defendant:
Centre for Minimally Invasive Neurosurgery Incorporated and Anor