Supreme Court New South Wales Medium Neutral Citation: Greensmith v Hunter New England Local Health District [2021] NSWSC 1653 Hearing dates: 10 December 2021 Date of orders: 10 December 2021 Decision date: 10 December 2021 Jurisdiction: Common Law Before: Wilson J as Duty Judge Decision: 1. Settlement in the terms given in the consent judgment is approved pursuant to section 76 of the Civil Procedure Act. 2. The judgment of $170,000 payable with respect to the fifth plaintiff is to be paid into Court and be paid out thereafter to the credit of the existing trust account of the account numbers provided in the consent orders in the joint names of the first plaintiff and the first plaintiff's solicitor, Conrad Curry, or such further or other director of Mr Curry's firm, CCL Law Pty Limited, or its successor from time to time. 3. The fifth plaintiff's costs and disbursements in the sum of $45,000 are to be paid to the plaintiff's solicitor pursuant to authority and direction to pay. 4. In respect of the fourth plaintiff, settlement in the terms given in the consent judgment is approved pursuant to section 76 of the Civil Procedure Act. 5. The judgment of $170,000 payable with respect to the fourth plaintiff is to be paid into Court and thereafter paid out to the credit of the existing trust account with the account numbers and other details given in the consent orders held in the joint names of the first plaintiff and the first plaintiff's solicitor, Conrad Curry of CCL Law Pty Limited or further or other director of that firm or its successor from time to time. 6. The fourth plaintiff's costs and disbursements in the sum of $45,000 are to be paid to the plaintiff's solicitor pursuant to an authority and a direction to pay. Catchwords: DUTY JUDGE — application for settlement approval — mental harm suffered by children resulting from unsuccessful medical procedure of father — settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW) Compensation to Relatives Act 1897 (NSW) Category: Consequential orders Parties: Rebecca Jane Greensmith (Plaintiff) Hunter New England Local Health District (Defendant) Representation: Counsel: J Anderson (Plaintiff) L Pinnock (Defendant) Solicitors: The Law Office of Conrad Curry (Plaintiff) Crown Solicitor's Office (NSW) File Number(s): 2018/00366499 Publication restriction: Nil EX TEMPORE Judgment — REVISED 1. HER HONOUR: The Court is asked to consider approving a damages settlement of claims made by the infant children of Gavin Ross Andrew against the Hunter New England Area Health District. The claims have been prosecuted on behalf of the fourth and fifth defendants by their tutor, being their mother, Rebecca Greensmith. The claims are for pure mental harm occasioned to the fourth and fifth plaintiffs by the death of Mr Andrew, that death being as a consequence of unsuccessful endoscopic surgery for mitral valve repair at a hospital operated by the defendant. 2. After a conference between the parties, a settlement of the claims has been agreed which, because of the age of the fourth and fifth plaintiffs and their consequential legal incapacity, requires the approval of the Court. 3. Section 76 of the Civil Procedure Act 2005 (NSW) provides for any such settlement to be approved by the Court before it may proceed. The Court's function in that regard is a protective one. It is necessary to carefully consider the terms of the settlement as a means of protecting the interests of the person under legal incapacity. The question to be considered is the beneficial interests of the person and whether the settlement meets those interests. 4. The approval application is supported by an affidavit of Conrad Curry sworn on 7 December 2021. Mr Curry is the solicitor for the plaintiffs. Mr Curry deposes that these proceedings commenced on 28 November 2018 and they relate to psychological injuries said to have been sustained by the plaintiffs as a consequence of the death of Mr Andrew. 5. On 17 November 2021 a settlement conference took place and some agreement was reached to settle the children's claims. Mr Curry has since received instructions from the children's tutor to proceed with the settlement. 6. The tutor, Ms Greensmith, has received advice from Mr Curry as to the terms and consequences of the proposed settlement and Ms Greensmith is satisfied on the basis of that advice that the settlement represents a fair outcome and, over three years after Mr Andrew's death, she is keen to see her children, as she puts it, move on from the litigation process. 7. The tutor proposes that any settlement moneys be paid into existing interest-bearing trust accounts which are managed by her and Mr Curry for the benefit of each boy. Mr Curry is firmly of the view that the settlement moneys will be managed and applied for the benefit of the plaintiffs. He regards the settlement as reasonable and fair. The documentary material annexed to Mr Curry's affidavit is relied upon in support of his opinion. 8. The Court has also had the benefit of confidential evidence, being an opinion prepared as to the adequacy of the damages settlement for the infant children by Mr Anderson of counsel and I have carefully considered that opinion which is of great assistance to the Court. 9. On the basis of the evidence before the Court, I am satisfied that the proposed settlement is in the best interests of each infant plaintiff. The sum agreed represents a fair resolution of the claim and is to their benefit. 10. I am also satisfied that it is, in the circumstances of the matter, appropriate for the funds to be paid into the existing trust accounts referred to by Mr Curry in his affidavit. Other moneys already paid to resolve a Compensation to Relatives Act 1897 (NSW) claim on behalf of each of the children are held in the particular accounts, an arrangement which was approved by his Honour Harrison J on 11 May 2021. It seems to me to be sensible for these funds to be held in the same account and all moneys held on trust for the children to be consolidated in that way and managed jointly by the plaintiffs' mother and their solicitor for the benefit solely of the children. 11. The Court is, therefore, prepared to make orders in terms of the consent order which has been provided to the Court, noting the terms of the consent judgment which has been filed. 12. The orders that the Court makes are these: 1. Settlement in the terms given in the consent judgment is approved pursuant to section 76 of the Civil Procedure Act. 2. The judgment of $170,000 payable with respect to the fifth plaintiff is to be paid into Court and be paid out thereafter to the credit of the existing trust account of the account numbers provided in the consent orders in the joint names of the first plaintiff and the first plaintiff's solicitor, Conrad Curry, or such further or other director of Mr Curry's firm, CCL Law Pty Limited, or its successor from time to time. 3. The fifth plaintiff's costs and disbursements in the sum of $45,000 are to be paid to the plaintiff's solicitor pursuant to authority and direction to pay. 4. In respect of the fourth plaintiff, settlement in the terms given in the consent judgment is approved pursuant to section 76 of the Civil Procedure Act. 5. The judgment of $170,000 payable with respect to the fourth plaintiff is to be paid into Court and thereafter paid out to the credit of the existing trust account with the account numbers and other details given in the consent orders held in the joint names of the first plaintiff and the first plaintiff's solicitor, Conrad Curry of CCL Law Pty Limited or further or other director of that firm or its successor from time to time. 6. The fourth plaintiff's costs and disbursements in the sum of $45,000 are to be paid to the plaintiff's solicitor pursuant to an authority and a direction to pay. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2022