This is an application for judicial approval of a settlement pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW). The approval is necessary because the plaintiff, Patricia Walsh, is under a disability, and these proceedings have been carried on by her tutor. The tutor is the plaintiff's eldest son.
In support of the application for approval, I received the following:
1. an affidavit of Leslie Walsh, the tutor, affirmed 22 March 2023;
2. an affidavit of Katherine Ferrier sworn 22 March 2023;
3. a confidential advice from counsel for the plaintiff dated 15 December 2022.
[2]
Background
The plaintiff was born on 17 December 1935, and she is currently 87 years of age. It appears that the plaintiff is cognitively impaired by reason of pre-existing dementia.
The defendant is the statutory body that operated the Lithgow Hospital and the entity that employed, or is otherwise legally responsible for, the relevant specialists and hospital staff - and thus vicariously liable for their acts and omissions.
On or around 6 June 2020, the plaintiff presented to Lithgow Hospital with symptoms of right sided facial weakness and droop, and feeling unwell. Her right leg had given way the evening prior. The plaintiff was reviewed, and discharged into the care of her general practitioner.
Walsh v Nepean Blue Mountains Local Health District [2023] NSWSC 276 | Case summary | Zoe
On 10 June 2020, following a consultation with her general practitioner, the plaintiff was referred to the Emergency Department of Bathurst Hospital over concerns that the plaintiff had suffered a stroke. An MRI performed upon the plaintiff's admission to that hospital confirmed that she had suffered a left MCA ischaemic stroke.
The plaintiff's case is that the medical staff at Lithgow Hospital negligently failed to diagnose her as having suffered a stroke, and to institute urgent management of that condition including referral to a stroke unit. The essential argument for the plaintiff was that although the window for the administration of thrombolytic agents had closed, there was an opportunity for the plaintiff to undergo mechanical percutaneous clot retrieval within a 6 to 24 hour onset of stroke symptoms. The plaintiff thus contends that (a) as she first presented to Lithgow Hospital within the 24 hour limit for mechanical clot retrieval, had Hospital staff acted appropriately the plaintiff would and should have been urgently referred to a hospital with a stroke unit for administration of mechanical clot retrieval; and (b) had those steps been taken, she would have avoided the physical consequences that occurred because she was not.
The defendant qualified a number of experts to address liability and causation, including Prof John Watson, an eminent neurologist. In a report dated 9 December 2022, Prof Watson doubted that investigations would have resulted in mechanical clot retrieval: the point made by Prof Watson was that, as the CT angiogram performed 4 days after the stroke demonstrated that there was no evidence of occluded intracranial vessels, an investigation of that kind, even extending to a CT perfusion scan, would not have led to different clinical outcome. Based upon this evidence, it is clear that causation was squarely in issue.
[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 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": Scandolera at [29].
The tutor must also provide their assent to the compromise. That has occurred in this case: see the affidavit from Leslie Walsh, affirmed 22 March 2023, par 19.
[4]
Assessment and consideration
Having read the thorough and comprehensive confidential advice from the plaintiff's counsel, and the evidence read in support of the application for approval, there are a confined number of issues that would arise in the present case. They relate to causation (as I have earlier identified) and issues of damages.
In terms of the damages issues, they are ones that not uncommonly arise in cases of this kind. One set of issues relates to the nature and extent of the domestic assistance requirements of the plaintiff that relate to what is alleged to have occurred consequent upon the failure to diagnose and treat the stroke (as opposed to other ailments that plainly affected, and continue to affect, the plaintiff), and the approach taken to cost them. Another set of issues include the plaintiff's likely life expectancy and whether, and if so to what degree, the plaintiff's life expectancy has been compromised by the stroke.
In relation to that last issue, Associate Prof Gideon Kaplan, a senior specialist geriatrician and consultant physician qualified by the defendant, expressed the opinion, in his report dated 25 November 2022, that the plaintiff's life expectancy was in the order of 9-12 months. The plaintiff's qualified rehabilitation consultant, Dr Stephen Buckley, in his report dated 7 January 2022, did not address this issue.
I am satisfied, having read the material, including the confidential opinion from counsel for the plaintiff, that the settlement reflected appropriate compromise. I am also satisfied that the settlement is beneficial to the plaintiff, and in her best interests.
The agreed settlement sum is $XX plus costs as agreed at $XX.
Some of the settlement sum would be required to discharge expenses incurred, as follows:
1. Medicare: the amount of $XX has been estimated to be repayable: Ferrier affidavit at pars 21-22.
2. Solicitor and client costs: the amount of $XX is proposed to be charged to cover the "shortfall" in respect of legal costs and disbursements: Ferrier affidavit, par 25.
There is no evidence addressing what the solicitor and client costs represent (and why they are to be charged), and my approval of this settlement should not be taken in any way to have endorsed either the charging of the solicitor and client costs, nor the amount of them. In due course, should there be solicitor and client costs that is a matter that will need to be addressed and determined by the Trustee.
The final matter is how the funds are to be managed. The proposal is that the money be held by the tutor "on trust" for the plaintiff in a bank account. The objective of the creation of that account is to ensure that, if the plaintiff's health deteriorates and she were to require full-time nursing care, then the funds can be accessed promptly. That is not an order that I will make - indeed the proposed orders do not make provision for this. That is a matter which will need to be taken up upon application for the funds to be paid out of Court.
[5]
Orders
For the above reasons, I make the following orders:
1. The settlement recorded in par 1 of the consent judgment dated 13 December 2022 and filed in Court on 24 March 2023, signed by the parties is approved pursuant to the Civil Procedure Act 2005 (NSW), s 76, and there will be judgment in accordance with that paragraph.
2. The judgment sum less statutory deductions authorised by par 2 of the consent judgment is, subject to any further order, to be paid into Court pending the application for the appointment of a trustee to hold on trust the judgment sum in accordance with par 5.
3. The Court notes the agreement between the parties set out in pars 3-4 and 6-9, inclusive of the consent judgment.
4. That the confidential advice from counsel for the plaintiff dated 15 December 2022 be placed in a sealed envelope, with access to that envelope to be granted only by leave of a Judge of the Court.
[6]
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Decision last updated: 24 March 2023