In August and September 2006, when he was a few months old, the plaintiff had low weight, and had failed to thrive. He alleges that these were symptoms of a vitamin B12 deficiency. The plaintiff's parents took him to the Children's Hospital at Westmead ('the Hospital') but the Hospital, through its staff, allegedly failed to diagnose and treat this condition leaving him with significant neurological and cognitive impairments.
By these proceedings, which are listed for hearing for two weeks commencing 19 September 2022, the plaintiff seeks recovery of damages alleging that his injuries and disabilities were the consequence of the negligence of the defendant and those for whom the defendant is vicariously liable.
The matter was listed for mediation on 31 August 2022, at which time the parties reached a proposed settlement.
This is an application for the approval of that settlement pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW). The approval is necessary because the plaintiff is a person who is under legal incapacity.
In support of the application for approval, I received the following:
1. An affidavit from David Pink sworn 2 September 2022. Mr Pink is a solicitor working under the supervision of the solicitor with day-to-day carriage and conduct of the matter on behalf of the plaintiff.
2. An affidavit from Steven Skues sworn 2 September 2022. Mr Skues is the plaintiff's father, and his tutor in these proceedings.
3. A confidential opinion from Mr Hooke SC and Mr Robinson of counsel dated 2 September 2022.
[3]
Approval: the relevant principles
When the Court is asked to approve a settlement of proceedings commenced by or on behalf of a person under legal incapacity, its function is protective. The ultimate question is whether any compromise entered into is beneficial to the interests of the person and thus in their best interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 at [29] (Hammerschlag J) ("Mills'); Budini v Sunnyfield (No. 3) [2021] FCA 1540 at [10] (Perry J).
It is the Court's responsibility to determine this matter itself, albeit that it will be assisted - but not bound - by the provision of a confidential advice by the person's legal representatives that they consider the settlement to be beneficial to, and in the best interests of, the person: Mills at [29]; Scandolera bhnf Robinson v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 at [27] (Mortimer J) ('Scandolera').
The Court, as part of its assessment, is to consider the "the advantages and disadvantages of the litigation continuing not only in terms of whether the applicants might secure a more advantageous award from the Court at trial, but also issues such as the prospects of an appeal and the costs and pressures imposed on [the plaintiff] if the litigation were to continue", to what is, in this case, estimated to be a two week trial: Scandolera at [29].
The tutor must also provide their assent to the compromise. That has occurred in this case: see pars 17-18 of the affidavit of Steven Skues.
[4]
Background
It is necessary to say something more about the plaintiff's claim, and the material allegations made in it.
The plaintiff was born on 26 June 2006 with a vitamin B12 deficiency. Left untreated, vitamin B12 deficiency in neonates can cause cerebral neuropathy, including seizures and developmental delay.
The plaintiff's case is that, on 29 August 2006, he became a patient of the defendant through the Hospital, and that his presentation at that time was indicative of him suffering from a vitamin B12 deficiency. Upon his admission, the Hospital undertook a urine metabolic screen which included testing for increased methylmalonate excretion.
On 31 August 2006, the Hospital received the laboratory report with the results of the urinary screening, which showed an increased methylmalonate reading - which the plaintiff contends was suggestive that a vitamin B12 deficiency was the cause of his clinical presentation. The report is said to have recommended that the screening be repeated in order to confirm the findings of an increased methylmalonate level. That did not occur and it is further alleged that, had it been done, it would have confirmed the initial result with two immediate consequences, being:
1. first, it would have led to a vitamin B12 serum testing; and
2. secondly, that such further testing would have revealed the plaintiff's vitamin B12 deficiency.
It appears that the plaintiff was discharged from the Hospital at this time.
On 12 and 29 September 2006, the plaintiff again presented to the Hospital. The plaintiff alleges that his presentation had not changed; that is, he continued to suffer from a vitamin B12 deficiency, and he had failed to thrive and remained underweight. At this presentation, the urine metabolic screening was not repeated, nor was vitamin B12 serum testing performed.
In November 2006, it is alleged that the plaintiff began to suffer symptoms consistent with epileptic seizures, developmental delay and infantile spasms - symptoms which the plaintiff alleges were caused by his ongoing untreated vitamin B12 deficiency.
On 18 February 2007, the plaintiff was admitted to the Sydney Children's Hospital, Randwick, for investigation of his symptoms. Whilst so admitted, blood testing showed a significant vitamin B12 deficiency for which he received supplemental vitamin B12. As a result of that supplementation, the plaintiff's infantile spasms are said to have ceased, but he has been left with global developmental delay and abnormal neurological development.
The plaintiff's claim is that the developmental delay and abnormal neurological development were caused by the delayed diagnosis of a vitamin B12 deficiency, and consequential delayed commencement of a vitamin B12 supplementation: see pars 128 and 129 of the second further amended statement of claim. That case is squarely supported by Professor Michael Harbord, a paediatric neurologist. A lesser and different case - one where the vitamin B12 deficiency made a contribution to some aspects of the plaintiff's presentation including his intellectual disability - is supported by Professor Jozef Gecz, a consultant geneticist. The respective opinions from those experts can be seen in their responses to questions 16, 16A and 17 of the Joint Expert Liability Conclave Report, dated 23 June 2021 ('the Joint Report'): see pp 176-180 inclusive of the affidavit of Mr Pink.
The defendant's case is that the plaintiff's presentation, and disabilities, are inconsistent with a vitamin B12 deficiency and, further, most likely attributable to a genetic abnormality: that is, it is plausibly explained by the presence of a genetic disorder. That case is fully supported by the experts that the defendant retained - namely, Associate Professor Andrew Kornberg, paediatric neurologist; Dr Jeremy Freeman, paediatric neurologist; and Professor David Amor, consultant clinical geneticist. Their respective opinions can also be seen in their responses to the questions in the Joint Report that I have previously identified.
[5]
Assessment and consideration
Having read the evidence, in particular the Joint Report, it is clear that there are a number of significant causation issues. It seems to me, based upon my assessment of that material, that there were a number of scenarios open on the evidence: first, the plaintiff could have succeeded entirely in his claim in attributing all of his injuries and disabilities to the negligence of the defendant; secondly, the defendant could have succeeded; and, thirdly, the plaintiff could have succeeded, but only in demonstrating that the vitamin B12 deficiency made a contribution to some parts of his claimed intellectual disabilities.
My assessment of the case on causation - admittedly without the benefit of hearing from the witnesses and from counsel - is that it is a difficult one.
I am in receipt of a confidential advice from counsel. I agree with assessments contained within that advice about the risks and that the case called for considerable compromise.
In my view, the case had appreciable risks of failing entirely, and, even if it did not, there were considerable prospects of securing significantly less damages than the primary claim based upon the prospect of acceptance of the plaintiff's fallback case - namely, that the plaintiff would only recover damages excluding any non-tortious impairments.
Ultimately, this is a case that fully justified significant compromise, bearing in mind the risks on causation that I have identified.
It is of course not without difficulty to reliably predict what judgment sum the plaintiff might have secured in these circumstances. Nevertheless, based upon the material, and the confidential advice to which reference has been made, I am comfortably satisfied that the settlement is in the best interests of the plaintiff, and for his benefit, and so should be approved.
The settlement sum is for an amount of $XXXX inclusive of all paybacks and fund management costs, plus agreed costs of $XXXX. The paybacks are to Medicare, the NDIS and to a private health insurer, and based upon the evidence of Mr Pink, are, I am told by senior counsel for the plaintiff, no more than $XXXX.
Mr Pink has also disclosed that they propose to seek, from the Trustee, payment of $XXXX in solicitor and client costs. He has, however, acknowledged that is a matter for him, to be determined with the Trustee.
I make the following orders:
1. The settlement recorded in the consent judgment filed in Court today, 5 September 2022, is approved pursuant to the Civil Procedure Act 2005 (NSW), s 76.
2. The judgment sum less statutory deductions authorised by the consent judgment (excluding the component of $XXXX comprising the costs the subject of order (3)) is, subject to any further order, to be paid into the Court pending the appointment of a financial manager to manage the plaintiff's affairs.
3. The costs component of the judgment sum is to be paid to the plaintiff's solicitors upon their undertaking, given through senior counsel today, to account to the plaintiff's tutor and financial manager.
4. The parties have liberty to apply to me on 24 hours' notice through my Associate.
5. The Court notes the agreement between the parties set out in pars 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the consent judgment.
[6]
Amendments
15 September 2022 - Settlement amount redacted
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Decision last updated: 15 September 2022