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[2026] NSWSC 1204
Supreme Court of NSW
2026-10-01
Elkaim AJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Smith bhnf Punch v Kamalaharan [2026] NSWSC 1204
Hearing dates: 1 October 2026
Date of orders: 1 October 2026
Decision date: 01 October 2026
Jurisdiction: Common Law
Before: Elkaim AJ
Decision: The settlement is approved.
Orders:
1. Orders 1, 2, 3, 4, and 5 of the SMO signed by the parties and dated today.
2. After payment of deductions listed in paragraph 5 of the Consent Judgment the balance of the Judgment Sum is to be paid to the NSW Trustee and Guardian to be invested on the plaintiff’s behalf.
Catchwords: CIVIL PROCEDURE — approval of settlement under s 76 of the Civil Procedure Act 2005 (NSW) — claim for pure mental harm as a result of the defendants’ alleged negligence in their treatment of the plaintiff’s mother
Legislation Cited: Civil Procedure Act 2005 (NSW), s 76
Category: Principal judgment
Parties: Cody Smith bhnf Felicity Punch (Plaintiff)
Dr Sornalingam Kamalaharan (First Defendant)
Nepean Blue Mountains Local Health District (Second Defendant)
Representation: Counsel:
(Plaintiff)
(First Defendant)
(Second Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Moray & Agnew (First Defendant)
Makinson d'Apice Lawyers (Second Defendant)
File Number(s): 2025/40401
Publication restriction: No
This matter has come before me in the duty list for approval of an infant settlement, pursuant to s 76 of the Civil Procedure Act 2005 (NSW). It is to be immediately stated that the court’s role in considering an approval application is protective and the primary concern is whether the settlement is beneficial to the plaintiff.
The plaintiff was born in 2010. The proceedings were commenced with the filing of a statement of claim on 31 January 2025, alleging injury arising by way of a nervous shock.
The first defendant is a general practitioner in the country town of Wallerawang. The second defendant is an area health authority responsible for a dental health clinic situated in Lithgow.
The proceedings were settled, subject to approval, on 3 August 2026. The application for approval is supported by the affidavits of Mr Dominic Dagher filed 29 September 2026, and Ms Felicity Punch, also filed 29 September 2026. Mr Dagher is a solicitor in the firm acting for the plaintiff. Ms Punch is the plaintiff’s mother and tutor in the proceedings.
The background facts, in summary, and as alleged by the plaintiff, are as follows. Ms Punch was born with a leak in a valve in her heart, a condition called mitral valve regurgitation. There were also other associated cardiac anomalies. Ms Punch had major heart surgery when she was 16 years of age.
Ms Punch was a patient of both defendants. They were both aware of her cardiac condition and her vulnerability to infection, in particular following oral surgery. In June 2020, the first defendant referred Ms Punch to the second defendant for dental treatment. After some initial treatment, surgical dental treatment was carried out on Ms Punch by the second defendant on 25 June 2020.
Early in July 2020, Ms Punch was admitted to the Lithgow Hospital complaining of severe headaches and aphasia. A blood test revealed a streptococcal infection. A CT brain scan showed evidence of an acute subarachnoid haemorrhage. Ms Punch was transferred to Nepean Hospital where urgent cranial surgery was carried out to treat acute L subarachnoid and intraparenchymal haemorrhage secondary to mitral valve endocarditis causing a mycotic cerebral aneurysm.
Ms Punch subsequently required admissions to rehabilitation facilities. She now lives in Adelaide where treatment has continued. In April 2021, Ms Punch underwent an elective cranioplasty, and in 2023 she had a mitral valve replacement.
Mr Dagher states:
“Ms Punch has short term memory loss, a non-functioning right arm, a limp, language difficulties, and requires assistance with all ADLs.”
Ms Punch has her own proceedings against the two defendants arising from their alleged negligence which has caused her current condition.
Ms Punch’s present circumstances, and the continuing existence of her litigation are important because of one of the orders sought by the plaintiff in respect of the settlement funds. I shall return to this aspect below.
The nervous shock suffered by the plaintiff was said to arise from his exposure to his mother’s condition. It is evident that the plaintiff’s case is closely tied to that of his mother. If Ms Punch were to lose her case, then so too would the plaintiff. This is an important factor in consideration of the approval of the settlement.
In relation to Ms Punch’s own case, Mr Dagher has annexed to his affidavit a number of the medical opinions that have been garnered by the respective parties. It is very obvious that liability, including primary negligence and in particular causation, are very much in issue. According to Mr Dagher, the causation issue surrounds whether or not Ms Punch’s condition was caused by the negligence of the defendants, or whether it would have arisen in any event.
As far as the plaintiff is concerned, it appears he has an autism spectrum disorder not related to his mother’s condition, but, as a product of what his mother has endured, he has a chronic adjustment disorder and perhaps a specific phobia. Dr Elliott, a psychiatrist, who saw the plaintiff on behalf of the defendants is of the view that:
“Cody’s anxieties regarding his mother’s health, his fear of dying, his more general anxieties around healthcare and hospitals appear related to the incident.”
I take the incident to refer to the treatment of Ms Punch. Subject to the existence of a phobia, Dr Elliott says he generally agrees with the plaintiff’s medicolegal expert, Dr Turnbull. The point is also made that the plaintiff’s pre-existing autism is likely to be influential on his study and future career.
In her affidavit, Ms Punch expresses her agreement with the settlement and states that she understands the various issues which have been carefully explained to her by her solicitor. She is in favour of the settlement being approved.
I have also been assisted by a confidential advice prepared on behalf of the plaintiff. The settlement involves payment of a sum of money to the plaintiff, plus a separate sum on behalf of legal costs. The legal costs exceed the amount agreed upon, so that it is proposed to make up the difference from the amount to be paid to the plaintiff. If it were not for the relatively minor sum of this excess, I would not have looked favourably upon the encroachment into the plaintiff’s award.
The proposed orders include the payment of the plaintiff’s funds to his mother, to be managed by her until he reaches the age of 18. Without any disrespect, but having regard to his mother’s condition, her residence in Adelaide and her ongoing litigation, I am not prepared to make an order to this effect. I appreciate that paying the money to the NSW Trustee and Guardian will involve some management fees, but I think this is the safer and better option in the interests of the plaintiff.
Accordingly, I approve the settlement.
Orders:
Orders 1, 2, 3, 4, and 5 of the SMO signed by the parties and dated today.
After payment of deductions listed in paragraph 5 of the Consent Judgment the balance of the Judgment Sum is to be paid to the NSW Trustee and Guardian to be invested on the plaintiff’s behalf.
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Smith bhnf Punch
Kamalaharan