Varghese by his tutor Edison v Cavlary Health Care

File Number(s): 2023/00460255

JUDGMENT – Ex tempore

1. This is an application for judicial approval of three settlements pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW), for the first, third and fourth plaintiffs respectively in these proceedings.

2. The first plaintiff lacks capacity following a very serious brain injury with which the allegations in these proceedings are connected. The third plaintiff is 15 years old and the fourth plaintiff is 10 years old.

3. The second plaintiff is the wife of the first plaintiff and the mother of the third and fourth plaintiffs. She is the tutor of each of the first, third and fourth plaintiffs.

Relevant principles

4. The relevant principles in applications of this kind are well established. In Yu Ge by her tutor Tao Ge v River Island Clothing Proprietary Ltd and Anor [2002] NSWSC 28 at [32], O’Keefe J summarised the applicable principles as follows:

1. The jurisdiction of the Court under the Damages (Infants and Persons of Unsound Mind) Act 1929 is protective in character*.*

2. Before approving an infant’s settlement the Court must be satisfied that the terms of settlement are proper in the interests of the plaintiff.

3. In some cases, where the trial has proceeded to a sufficient extent, the Court will be able to make its own assessment as to the propriety of the amount of the settlement on the material which has already emerged.

4. In other cases the Court will require evidence to satisfy itself as to the propriety of the amount of the settlement.

5. The Court will often have to rely to a significant extent on the assessment of the parties. Such assessment should be evidenced to the Court by an appropriate affidavit from the solicitor for the plaintiff which reveals to the Court the opinion of counsel, if any, retained in the matter as well as that of the solicitor for the plaintiff. Where counsel for the plaintiff propounds the settlement to the Court a statement from the Bar table by counsel as to the adequacy of the settlement in the circumstances may be sufficient.

6. If there has been a compromise, the basis on which the matter was compromised should be evidenced to the Court. This may involve the defendant revealing to the Court, but not necessarily to the legal advisers of the plaintiff, the nature and quality of the material which supports the need for the plaintiff to compromise.

7. In determining whether the amount or other terms of settlement are proper in the interests of the plaintiff the Court will not substitute its own assessment for that of the parties, provided that the amount or terms agreed is or are within parameters determined by the Court to be appropriate.

8. In exercising the jurisdiction the Court should act cautiously and if in doubt decline to approve the settlement.

9. Where a judge declines to approve a settlement in a non-jury case such judge should not, except in special circumstances, proceed to hear the action.

5. The ultimate question is whether the proposed settlement is beneficial to the interests of the person under a disability or in their best interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (‘Mills’) at [29].

6. It is the Court’s responsibility to determine this question, albeit with the assistance of confidential advice provided by counsel for the plaintiff: Mills at [29].

7. In its determination, the Court is to consider the “advantages and disadvantages of the litigation continuing not only in terms of whether a more advantageous award may be achieved 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”: Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 at [27].

8. The tutor, who brings the action on behalf of her husband and two children, should also assent to the compromise, which has occurred here.

Background

9. The allegations against the defendants concern the management of Mr Varghese, the first plaintiff, on 15 January 2021 between the time of his arrival at the emergency department of the hospital operated by the first defendant and the time he underwent an operation. He arrived at the emergency department of that hospital at 7:24 am. By 10:00 pm, he was diagnosed on a CT scan with multiple infarcts in the territory of the anterior cerebral arteries and posterior cerebral arteries, indicating that at some point before then, all the damage had been done.

10. Following admission to the first defendant’s hospital and the passage of some time, the significance of which was in dispute, the first plaintiff was transferred to the hospital operated by the second defendant.

11. The central issue is whether those infarcts could have been avoided or been less extensive with earlier and different treatment. Each central allegation in these proceedings is disputed by the defendants. There is a significant dispute both as to liability and as to quantum, and the Court has received into evidence a considerable volume of expert evidence going to both matters. There have been multiple exchanges of reports between multiple experts, and it is clear from the chronology that the gathering of expert evidence was a slow and time-consuming process. The analysis of expert evidence and the consideration of what called for a response and the nature of that response required considerable attention.

Consideration

12. I have received, read and given careful consideration to the written opinion of senior counsel for the first, third and fourth plaintiffs, which has been received by the Court. I have also received, read and paid careful attention to the affidavit of the second plaintiff as tutor of the first, third and fourth plaintiffs, and indeed, as wife of the first plaintiff and mother of the third and fourth plaintiffs.

13. I have also received an affidavit of the solicitor acting for the first, third and fourth plaintiffs as to the nature of these proceedings and the steps that led to this settlement. Additionally, I have received a confidential affidavit from that solicitor in respect of legal costs and disbursements. As I indicated, I have been provided with the expert reports filed for all parties on liability and quantum and have considered those reports.

14. I am satisfied there is a significant risk that all three plaintiffs could fail to establish that either defendant is liable for what is undoubtedly a tragic injury. I do not propose to offer a further view about the likelihood of the plaintiffs succeeding or failing had these proceedings run to trial.

15. I am also satisfied that if the first plaintiff succeeded, there is a significant risk that he may receive less than the settlement sum proposed.

16. I am similarly satisfied as to the third and fourth plaintiffs that, first, their claims will not succeed if the first defendant fails on liability, which as I have said, I consider to be a significant risk. And if they succeed, I am satisfied that there is a risk that they may receive less than the settlement sum.

17. I am accordingly satisfied that each of the proposed settlements is a compromise which is beneficial to and in the best interests of each relevant plaintiff, and I propose to make orders accordingly.

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