Nissan v South Western Sydney Local Health District [2020] NSWSC 1020

Supreme Court New South Wales

Medium Neutral Citation: Nissan v South Western Sydney Local Health District [2020] NSWSC 1020 Hearing dates: 28 July 2020 Date of orders: 28 July 2020 Decision date: 28 July 2020 Jurisdiction: Common Law Before: Campbell J Decision: See paragraph 11 Catchwords: CIVIL PROCEDURE – infant settlement approval – compromise - where settlement in best interests of infant Legislation Cited: Civil Liability Act 2002 (NSW) s 5A Civil Procedure Act 2005 (NSW) ss 76(4), 77 Category: Procedural and other rulings Parties: Sophie Nissan bhnf Hali Nissan (Plaintiff) South Western Sydney Local Health District trading as Fairfield Hospital (Defendant) Representation: Counsel: A. Campbell (Plaintiff) A. Clancy (Defendant)

Solicitors: Gerard Malouf & Partners (Plaintiff) McCabe Curwood (Defendant) File Number(s): 2017/73204

Revised extempore Judgment 1. This matter is before me to consider whether a compromise of the litigation should be approved under the provisions of s 76(4) of the Civil Procedure Act 2005 (NSW). The plaintiff is now seven years of age and brings the proceedings by her tutor who is her mother. It is a very tragic case. The plaintiff suffered a perinatal hypoxic ischaemic episode and has been left very severely disabled. Indeed the incident was a catastrophic one. 2. By her mother she has sued the hospital where she was born. She is the second of her mother's children and her mother suffered from what might be referred to as borderline gestational diabetes. It is common ground that this condition is not responsible for what happened to Sophie. However, her previous obstetric history and that condition dictated certain care requirements be observed during her pregnancy and in relation to Sophie's birth. It was decided, I think as occurred with her first child, that Sophie's birth should be induced and that process was initiated. The significant issue in the case is whether Sophie was small for her gestational age and if so, whether that consideration required as a matter of appropriate medical care, inducement at a slightly younger age. 3. The induction was initiated when she was at 39 weeks and the issue is whether given the indications arising out of what I have referred to as Mrs Nissan's borderline gestational diabetes, induction should have taken place at 37 weeks and if it had, whether the hypoxic ischaemic episode would have been avoided. 4. There are other issues about the care that should have been undertaken, including whether or not a further monitoring of Sophie's progress should have been undertaken in the 38th week by way of additional ultrasound and DOPA studies but it seemed to me from both the Confidential Joint Memorandum of Advice of Mr Cranitch SC and Mr Campbell of counsel that the primary issue informing liability is that question of the timing of Mrs Nissan's induction. 5. I have considered the Joint Advice very carefully. It goes without saying that there are fewer Senior Counsel more experienced and of greater pre-eminence in the personal injuries area than Mr Cranitch and Mr Campbell is a most experienced junior counsel in the field. As I have said, I have read their opinion carefully and I have with respect satisfied myself as to the matters raised by a consideration of the competing medical opinions which are attached to the affidavit of Leslie Abboud, the plaintiff's solicitor. There seems to be consensus that the ischaemic episode, as I have said, was perinatal and probably occurred within the two or three day window prior to Sophie's birth. On that basis it is put, on the plaintiff's case, that had induction occurred at 37 weeks, it is almost certain the ischaemic episode almost would not have occurred. 6. On the other hand there is a great deal of division about whether induction was called for at 37 weeks. There are issues about whether Sophie was small for her gestational age and it is acknowledged that Mrs Nissan's gestational diabetes was borderline. Indeed on current medical thinking, according to the expert evidence, she would not have been so categorised. 7. There are issues about medical causation in terms of the appropriate prenatal care of Sophie and there are also issues arising under s 5O of the Civil Liability Act 2002 (NSW) in relation to appropriate professional standards at the time. There is a body of opinion obtained on behalf of the defendant which indicates that the care that Sophie and Mrs Nissan received from the defendant accorded with those standards. 8. These cases, although always tragic, are never easy in terms of establishing liability. Although the damages that Sophie would recover were she successful in her claim for damages would greatly exceed the sum proposed for settlement, the nature of the issues disclosed by the evidence and the inherent uncertainty attending the outcome of litigation are matters which must be borne firmly in mind. 9. I acknowledge that the proposal carries the recommendation of both Mr Cranitch and Mr Campbell as well as the recommendation of Mr Abboud. I have considered very carefully Ms Nissan's affidavit and she understands that this is, if approved by me, a full and final settlement of Sophie's case and of her rights to damages. It seems to me from her affidavit that Ms Nissan is well aware of the issues and understands them. 10. In all the circumstances I am satisfied that the proposed settlement, albeit a significant compromise, is in Sophie's best interests and ought to be approved. 11. I make the following orders: 1. I note that this matter has been settled subject to approval in accordance with the terms of a Consent Judgment signed by the solicitors for the parties on 6 and 8 July 2020 respectively. 2. I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW). 3. I make orders in accordance with the Consent Judgment signed by the solicitors which for identification I will initial, date today and place with the papers. 4. In accordance with s 77 of the Act I order that the judgment sum referred to in paragraph 1 of the Consent Judgment less any authorised deductions which the Consent Judgment specifically provides, be paid into Court. 5. I grant liberty to the plaintiff to apply for payment out to an appropriate manager once arrangements as contemplated by the plaintiff's legal advisors are finalised.