Tas bht Tas v The Sydney Children’s Hospital Network (Randwick and Westmead) (Incorporating the Royal Alexandra Hospital for Children) t/a the Children’s Hospital Westmead

Category: Principal judgment

Parties: Baran Tas by his tutor Handan Tas (Plaintiff)
The Sydney Children’s Hospital Network (Randwick and Westmead) (Incorporating the Royal Alexandra Hospital for Children) t/a the Children’s Hospital Westmead (Defendant)

Representation: Counsel:
D Elliot (Plaintiff)
R Perla (Defendant)
Solicitors:
Gerard Malouf and Partners (Plaintiff)
McCabes Lawyers (Defendant)

File Number(s): 2022/00157568

JUDGMENT – Duty – Ex tempore (revised)

1. This is an application for judicial approval of a settlement pursuant to section 76(3) of the Civil Procedure Act 2005 (NSW) (“the Act”). The approval is necessary because the plaintiff suffered a hypoxic brain injury at the age of ten years in 2015, which has caused him significant and catastrophic injuries and disabilities, such as a chronic adjustment disorder, and importantly, major neural cognitive disorder and extensive cognitive impairment. He is therefore under a legal incapacity.

2. The plaintiff was born on 18 January 2005 and is currently 20 years of age. He resides with his mother in rental accommodation. He suffers from physical impairment as well, including impairments to the left upper and lower limbs limiting his fine motor and gross motor skills, reduced mobility, difficulty walking, weakness in muscle in the left side of his body, reduced function in his hand and speech delay.

3. Before me are the following exhibits. Exhibit 1 is a bundle of medical material served in the proceedings on behalf of the plaintiff and on behalf of the defendant. Exhibit 2 is confidential material, being an affidavit of the plaintiff’s solicitor, Ms Julie Baqleh, dated 4 December 2025, an affidavit of the tutor, Ms Handan Tas, dated 4 December 2025, a confidential advice as to settlement by the plaintiff’s counsel, Mr David Elliott, dated 4 December 2025, and a confidential advice from Mr Duncan Graham SC, dated 14 November 2025. The confidential material has been put in an envelope marked “Confidential. Not to be opened other than by a Supreme Court Judge.”

4. In an application for approval of settlement pursuant to section 76(3) of the Act, the Court’s function is protective. The ultimate question is whether the proposed settlement is beneficial to the interests of the plaintiff, or in his best interests: see Permanent Trustee Company Limited v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (“Mills”) and Budini v Sunnyfield [2021] FCA 1540*.*

5. It is the Court’s responsibility to determine this question, but with the assistance of confidential advice provided by counsel for the plaintiff: see Mills at [21] and Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 at [21] (“Scandolera”).

6. In its determination, the Court is to consider the “advantages and disadvantages of the litigation continuing not only in terms of whether the plaintiff 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 upon the plaintiff if the litigation were to continue”: Scandolera at [29].

7. The presently pleaded case is that staff of the Children’s Hospital at Westmead ought to have ordered a D-dimer test for thromboembolism during the plaintiff’s admissions from 9 and 15 June 2015 because pulmonary embolism should have been on the list of differential diagnoses for his presenting complaints of intermittent shortness of breath, mild oxygen desaturations and chest tightness in circumstances where there were several prothrombotic risk factors at play.

8. I have carefully considered the opinions and conclusions of counsel in the confidential advices. I have also taken into account the matters and opinions expressed by Ms Baqleh and the tutor in their respective affidavits, as well as the advantages and disadvantages of this litigation continuing. In my opinion, there is a real risk that the plaintiff may not succeed in his action or that he might receive an amount in damages that is less than the settlement amount, bearing in mind causation of damages issues.

9. I observed that Ms Tas, as a loving and devoted mother, has prosecuted these proceedings on behalf of her son for many years. It is a testament to her love and devotion that the matter is able to be settled today on terms that in my opinion are beneficial to and in the best interests of the plaintiff. I make the following orders:

10. I approve the settlement of the plaintiff’s claim pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

11. I make the orders and notations contained in paragraphs 1 to 9 of the consent judgment filed in Court.

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