Supreme Court New South Wales Medium Neutral Citation: Nian v Sydney Local Health District t/a Concord Repatriation General Hospital [2023] NSWSC 263 Hearing dates: 17 and 24 March 2023 Date of orders: 24 March 2023 Decision date: 24 March 2023 Jurisdiction: Common Law Before: Chen J Decision: (1) The settlement recorded in par 1 of the consent judgment dated 13 March 2023 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. (3) The Court notes the agreement between the parties set out in pars 3-8, inclusive of the consent judgment. (4) That the confidential advice from counsel for the plaintiff dated 21 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. Catchwords: CIVIL PROCEDURE – settlement approval – compromise – whether settlement in best interests of person under a disability Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Budini v Sunnyfield (No. 3) [2021] FCA 1540 Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 Scandolera bhnf Robinson v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 Category: Procedural rulings Parties: Xuan Zhong Nian by his tutor Serena Nian Crown Solicitor (defendant) Representation: Counsel: Mr MJ Cranitch SC, with Mr A Campbell (plaintiff) A McCarthy (defendant) Solicitors: Gerard Malouf and Partners (plaintiff) Crown Solicitor's Office (defendant) File Number(s): 2021/187910 Publication restriction: Nil JUDGMENT EX TEMPORE 1. 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, Xuan Nian, is under a disability, and these proceedings have been carried on by his tutor. The tutor is the plaintiff's daughter. Background 1. The plaintiff was born on 7 March 1947, and he is currently 76 years of age. The defendant is the statutory body that employed the relevant specialists and hospital staff – and thus vicariously liable for their acts and omissions. 2. In early June 2019, the plaintiff suffered a fall: he was on a table changing a lightbulb, when he fell to the floor. In the two weeks or so following this fall, the plaintiff began to experience headaches. He attended upon his general practitioner, who recommended that the plaintiff undergo a CT scan of his brain and cervical spine. Following these investigations, the plaintiff was advised to attend hospital, and the plaintiff attended the Concord Repatriation General Hospital (the Hospital'). 3. The plaintiff was admitted to the Hospital on or around 16 June 2019. The principal diagnosis was described as "left convexity subdural haematoma". The plaintiff was discharged the following day. 4. On around 19 June 2019, the plaintiff was observed not to be speaking clearly, and he returned to his general practitioner following which he re-presented to the hospital – where he was again admitted. 5. On 20 June 2019 the plaintiff underwent a left sided whole craniotomy with a washout of subdural haematoma. This occurred because a CT scan performed on 19 June 2019 suggested that surgery was necessary, essentially because the haematoma had enlarged and caused a mild subfalcine herniation. In very simple terms, the herniation meant that pressure from the subdural haematoma was now pushing the brain downwards, displacing some of the brain below the falx cerebri, thereby causing damage and necessitating efforts to relieve pressure on the brain. 6. The plaintiff's case is that during the course of this procedure the intraparenchymal drain insertion was negligently advanced by the surgeon too deeply into the parenchyma of the left hemisphere. 7. As to this event, the following matters should be noted. The first is that the clinical records of the Hospital dated 20 June 2019 (made by the neurological registrar/RMO) note that the craniotomy procedure was "complicated by intraparenchymal drain insertion". The second is the fact that the presence of this subdural drain caused "a haematoma/bleed at the motor cortex" was in fact shown on a follow-up CT scan performed that day. The third is that these events were described by the expert neurosurgeon qualified by the plaintiff to address "liability"– Dr Gautam Khurana in his report dated 15 June 2021 – in these terms (page 28): the cause of the right hemiplegia is directly attributable to the trauma/injury to critical neuronal pathways/tissue from the physical misplacement of the plastic drainage tubing. I believe the records indisputably indicate so … 1. Although the defence did not admit breach of duty of care by that act, there is no material before me that would suggest that there is significant issue about what occurred, nor that the conduct in question fell short of the appropriate standard of care. 2. There is no dispute that, in consequence of the surgery, the plaintiff suffered a stroke with injuries and disabilities which extended to right sided hemiparesis affecting his face, arm and leg, right visual hemianopia and dysphasia. 3. The plaintiff is significantly disabled. He currently lives with his ex-wife and daughter in his ex-wife's unit. They provide the plaintiff with considerable amounts of care as well as assistance provided by the Australian Nursing Home Foundation – care that is funded by the Australian Government Department of Aged Care. 4. In late December 2022, the parties agreed to resolve a claim in the sum of $XX plus agreed costs of $XX. 5. In support of the application for approval, I received the following: 1. an affidavit of Serena Yhanee Nian sworn 9 March 2023; 2. affidavits from Julie Baqleh sworn 9 and 22 March 2023; 3. Confidential advice from counsel for the plaintiff dated 21 December 2022. Approval: the relevant principles 1. 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). 2. 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'). 3. The Court, as part of its assessment, is to consider the "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]. 4. The tutor must also provide their assent to the compromise. That has occurred in this case: see Ms Nian's affidavit, par 24. Assessment and consideration 1. Having read the confidential advice, 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 issues of damages only. In my view, in light of what I have set out above, there is no serious contest about breach of duty, nor that the failure to exercise reasonable care resulted in the plaintiff suffering from the significant disabilities to which reference has been made. 2. In terms of the issues of damage, they are ones that not uncommonly arise in cases of this kind. One issue is the nature and extent of the domestic assistance requirements of the plaintiff, and the approach taken to cost them. Another is whether, and if so to what degree, the plaintiff's life expectancy has been compromised. 3. In relation to that last issue, to illustrate the divide between the parties, the evidence ranges as to the degree to which the plaintiff's life expectancy has been reduced. For example, the plaintiff's qualified rehabilitation consultant, Dr Stephen Buckley, expressed the opinion that the plaintiff's life expectancy has reduced to "approximately 8 years" (report dated 15 December 2022, page 4). The defendant's qualified specialist in rehabilitation medicine, Prof Ian Cameron, expressed the opinion that the plaintiff's "life expectancy is limited to approximately 50% of the 13 years expected for a 75-year-old male" (report dated 1 June 2022, page 5). There is other evidence that paints a somewhat bleaker picture: Associate Prof Gideon Kaplan, a senior specialist geriatrician and consultant physician qualified by the defendant, expressed the opinion that the plaintiff's life expectancy was in the order of 2.5 years. 4. The agreed settlement sum is $XX including funds Management, plus costs as agreed at $XX. I am satisfied that the settlement is beneficial to the plaintiff, and in his best interests. 5. Some of the settlement sum would be required to discharge expenses incurred, as follows: 1. Medicare: the amount of $XX is required to be repaid to Medicare, pursuant to a notice of charge issued by that body for past medical expenses, nursing home benefits and residential care and home care subsidies: Baqleh 9 March 2023 affidavit, par 22. 2. Solicitor and client costs: the amount of "no more than $[XX]" is proposed to be charged to cover "any shortfall in respect of legal costs and disbursements": Baqleh 9 March 2023 affidavit, par 27. 1. 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 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. 2. The final matter is funds Management. The evidence from the solicitor for the plaintiff, and the tutor, was to seek the appointment of a private financial manager – said to be Australian Executor Trustees. When the matter first came before me, there was no evidence about the likely cost of this appointment, nor funds Management generally. That has since been rectified in the most recent affidavit from the plaintiff's solicitor. That evidence establishes that, assuming a life expectancy of 10 years (which I add, is around 2 years above the highest estimation expressed in the expert evidence to which reference has been made), the funds management costs would be $149,000 if the funds were managed with Australian Executor Trustees: Baqleh 22 March 2023 affidavit, par 7, and annexure A. For the fund to be managed by the NSW Trustee and Guardian, the estimated costs of funds Management, with an assumed life expectancy of 10 years, would be $134,191: Baqleh 22 March 2023 affidavit, pars 5-6. Orders 1. For the above reasons, I make the following orders: 1. The settlement recorded in par 1 of the consent judgment dated 13 March 2023 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. 3. The Court notes the agreement between the parties set out in pars 3-8, inclusive of the consent judgment. 4. That the confidential advice from counsel for the plaintiff dated 21 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. ********** 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: 24 March 2023