Swanson v Northern Sydney Local Health District [2022] NSWSC 1195

Supreme Court New South Wales

Medium Neutral Citation: Swanson v Northern Sydney Local Health District [2022] NSWSC 1195 Hearing dates: 29 August 2022 Date of orders: 07 September 2022 Decision date: 07 September 2022 Jurisdiction: Common Law Before: Harrison J Decision: Infant settlement approved Catchwords: NEGLIGENCE – medical negligence – Compensation to Relatives Act proceedings on behalf of infant children of the deceased – whether settlement in best interests of children Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76, 77 Compensation to Relatives Act 1897 (NSW) Category: Procedural rulings Parties: Matthew Swanson (Plaintiff) Northern Sydney Local Health District (Defendant) Representation: Counsel: A P L Naylor (Plaintiff)

Solicitors: Maurice Blackburn Lawyers (Plaintiff) McCabes (Defendant) File Number(s): 2021/46584 Publication restriction: Nil

Judgment 1. HIS HONOUR: Paula O'Regan died by her own hand on 3 April 2018 when on a group walk beyond the secure perimeter of the Royal North Shore Hospital, where she was an involuntary patient under the Mental Health Act 2007. Her husband Matthew Swanson has commenced these proceedings seeking, among other things, damages for himself and their children pursuant to the Compensation to Relatives Act 1897. Three of the children are still under the age of 18 years. The proceedings have been settled, subject only to approval in respect of the amount to be allocated to them. 2. Mr Swanson alleges that the defendant, which is the body responsible for the administration of the hospital, breached its duty of care in a number of respects. There is no dispute that the defendant owed Ms O'Regan a non-delegable duty to exercise reasonable care and skill in the provision of professional advice and treatment to her in relation to her mental illness. Mr Swanson contends that the defendant breached its duty of care by allowing Ms O'Regan to leave the general acute ward when no approval had been given for her to do so. That was in the context that at the time of her admission to hospital, Ms O'Regan was experiencing a form of psychosis and was at risk of self-harm. 3. Liability remains in issue. 4. I am advised that the parties have agreed to settle the dispute upon the basis of a verdict for the plaintiff for $1,100,000 plus costs. From that amount, provision must be made for Mr Swanson's three youngest boys who are respectively born in February 2007, January 2011 and August 2013. 5. I have been provided with a Confidential Opinion on Settlement Approval by Mr Naylor of counsel for Mr Swanson. Mr Naylor has analysed the potential losses suffered by the infant children, having regard to the actuarial parameters of their claim and the competing contentions on the question of the defendant's liability. That analysis extends both to the prospects of success in the litigation at all as well as the calculation of damages that might be awarded having regard to Ms O'Regan's earnings. The prospect that Ms O'Regan may have died prematurely in circumstances unrelated to the defendant's care was a further possibility that directly affected the assessment of the quantum of damages. 6. Part of the material with which I have been provided includes analyses by the parties' respective experts of the children's actuarially assessed damages including compensation claimed on their behalf for past and future loss of support caused by their mother's death. Applying the proportions derived from these analyses to the gross settlement sum, the following calculations emerge: Plaintiff Joel Dylan Mitchell William Total Past Losses (25%) $155,453 $14,410 $23,395 $36,049 $45,692 $274,999 Future Losses (75%) $466,359 $43,230 $70,187 $108,147 $137,078 $825,001 Total Losses $621,812 $57,640 $93,582 $144,196 $182,770 $1,100,000