Sieradzki v Sydney Local Area Health District

That agreement is subject to the Court’s approval being granted under s 76 of the Civil Procedure Act 2005 (NSW), there being no issue that Mr Sieradzki is a person under legal incapacity, with the result that the leave sought is required, if the judgment and orders sought are to be entered and made.

Grant of the approval is supported by the defendant, which appeared to explain the circumstances in which Mr Sieradzki suffered the brain injury which resulted in the pursuit of these proceedings.

The affidavit evidence relied on was that given by the solicitor Mr Meigan and by Ms Weber. Confidential advice given by Mr Dooley SC and Mr Perry is also in evidence. They all support the grant of the approval sought.

There is no issue about the applicable principles. They include that:

The Court’s function is protective and requires consideration to be given to what is in the incapacitated person’s best interests: Permanent Trustee v Mills [2007] NSWSC 336 at [29]; and

Consideration must thus be given to the prospect of a more favourable judgment being obtained at trial: Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 and authorities discussed at [30]-[40].

I am satisfied that the application of those principles permits the grant of the Court’s approval, the evidence establishing that the approval sought is in Mr Sieradzki’s interests, given the real risk that causation may not be established at trial and the evidence establishing:

That it was in November 2016 that Mr Sieradzki collapsed at home and on examination at Royal Prince Alfred Hospital was found to have an air embolism in his brain which had caused extensive irreversible damage;

He had an underlying condition for which he earlier had treatment, including during admission at Ryde and Concord Hospitals, which did not address his condition;

In October 2016 he pursued an elective procedure at RPA conducted by Dr Sy, a cardiologist, he being discharged the next day, the procedure having been considered to be successful and without complications;

Soon afterwards he became unwell and was admitted at Concord under the care of his treating cardiologist;

It was in November 2016 that he collapsed at home, was admitted at RPA and found to be suffering the air embolism;

Mr Sieradzki has since obtained support from the NDIS with whom there are ongoing discussions about how much of what has been provided will have to be contributed to, out of any damages Mr Sieradzki recovers, which cannot be finalised until the damages he will recover, if any, are known;

The legal costs which have been incurred;

While the non delegable duty of care for the acts and omissions of Dr Sy and the Hospital staff has been admitted by the defendants, breach of duty and causation remain in issue;

The parties have served expert reports, which have narrowed what is in issue, but which leave Mr Sieradzki in a position where there are significant difficulties lying in the path of successfully establishing liability, which substantially reduce the chances of his success, to a figure which counsel have explained;

Damages on a best case scenario have also been explained, as has why counsels’ advice supports the approval of the agreement, given the net figure which it would produce for Mr Sieradzki; and

Why Ms Weber instructed that the agreement be entered, understanding: