Supreme Court New South Wales Medium Neutral Citation: Maltby v Sydney Children's Hospitals Network [2023] NSWSC 542 Hearing dates: 22 May 2023 Date of orders: 22 May 2023 Decision date: 22 May 2023 Jurisdiction: Common Law Before: Garling J Decision: See [21] Catchwords: CIVIL PROCEDURE — approval of settlement pursuant to s 76 of the Civil Procedure Act 2005 — where plaintiff has not yet reached the age of majority — where claim arises out of spinal surgery performed negligently — whether to approve settlement — settlement approved Legislation Cited: Civil Procedure Act 2005 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Principal judgment Parties: Livia Maltby (P) Sydney Children's Hospitals Network (D) Representation: Counsel: I McGillicuddy (P) K Kumar (D) Solicitors: Beilby Pouldon Costello (P) Makinson d'Apice (D) File Number(s): 2020/275485 Publication restriction: Not Applicable EX TEMPORE JUDGMENT 1. This is an application for approval of a settlement which has been reached between the parties to this proceeding. Approval is required by s 76 of the Civil Procedure Act 2005 because the plaintiff has not yet reached her majority. The proceedings to date have been properly conducted by her father, who is her Tutor. Background 1. The claim arises out of spinal surgery performed on the plaintiff at the Sydney Children's Hospital Randwick on 4 January 2019. There is no criticism of the fact that the surgery itself was necessary. The plaintiff suffered from a degree of spinal scoliosis. 2. Two and a half years after the surgery was conducted the defendant, the Sydney Children's Hospitals Network, which is the entity liable for the conduct of its employees, servants and agents of the Sydney Children's Hospital at Randwick, actually admitted that it owed the plaintiff a duty of care and that it had breached that duty of care . It also admitted that its breach of duty had caused or contributed to the plaintiff suffering, and continuing to suffer, injury, loss and damage. 3. The plaintiff, prior to the surgery, was suffering from a number of conditions which affected her life. Those conditions necessitated assistance with her activities of daily living and required the availability of constant care and supervision. It is unnecessary for me to describe in detail those conditions. They are well known to the parties. 4. The surgery of 4 January 2019 was thought appropriate because of some of those pre-existing disabilities. However, the surgery led to a spinal cord injury at T5 which had the effect of significantly exacerbating the pre-existing conditions and requiring, in my assessment, further spinal surgery. 5. The complications arising from the spinal surgery are permanent. As a consequence of the spinal surgery and the remedial surgery, which was performed quite promptly, the plaintiff remained in hospital for almost 100 days after her surgery. She has been diagnosed, as I said, with a spinal cord injury at T5 which is associated with incomplete paraplegia and neuropathic pain particularly in the right lower limb. Her injury arising from the surgery has been referred to as an AISD spinal cord injury. She has also been diagnosed with a Brown-Sequard injury to her spinal cord. The plaintiff now requires ankle/foot orthoses in order to mobilise independently. Notwithstanding her use of those, her interrupted gait has led to her being at risk of, and having, falls on numerous occasions. 6. Further surgery was performed in October 2020 which necessitated an extension of the spinal fusion previously undertaken, from the T3 level down to the L3/L4 level. The Parties' Settlement 1. A number of issues arise with respect to the plaintiff's claim in particular with the assessment of damages which are not without legal and factual complexity. Of course, as I noted earlier, the defendant has admitted its liability for the negligently conducted surgery and all which flows from it. However, there were a number of issues about which the parties, supported by a variety of very well qualified experts, remained unable to agree. 2. The parties went to a mediation. It was a long mediation and no doubt the parties during the course of that mediation each had the chance to examine in detail all of the issues which were confronting them both. For the Tutor and his wife, Mrs Maltby, some of those issues would have been undoubtedly intensely and personally difficult to confront. However, at the end of the mediation, the parties between themselves, subject to the Court's approval, arrived at a figure which each regarded as a compromise of their respective positions. Discernment 1. I have heard submissions from counsel for the defendant in which counsel articulated the way in which the defendant approached this case and made its assessment. 2. I have the benefit of a lengthy, detailed, and comprehensive advice from counsel for the plaintiff. Both counsel for the plaintiff and his instructing solicitor are well known to the Court in this area of litigation as being experienced and highly competent practitioners upon whose opinions the Court is accustomed to relying. 3. However, the Court needs to undertake its own assessment. The touchstone of that assessment is what is in the interests of justice in this case. That is to say, is the proposed compromise one which, on the Court's assessment, is in the interests of the plaintiff. In order to come to that opinion, I have read not just counsel's advice but all of the evidence well in advance of today. Accordingly, I have had the opportunity of considering all of the issues. 4. I was at one stage concerned as to whether the sum for which the Court's approval was being sought was sufficient. However, my concern in that respect was allayed when I took into account the complex interaction of the plaintiff's pre‑existing condition, her current condition and the projected adverse progression of the condition as it existed prior to the surgery. 5. Having carefully thought about all of the issues, I have come to the view that this is a settlement which the Court should approve. It is, in my assessment, a reasonable sum having regard to the complexity of all of the issues. 6. I do not overlook the fact that if the case went to trial, a verdict delivered by a Judge after a full hearing may have been higher than this settlement. However, I also cannot put to one side the fact that a Judge may have, after a full hearing, reached a conclusion on one or more of the significant issues in dispute in a way favourable to the defendant. In that case, the Judge may have delivered a verdict of a lesser figure than this settlement. 7. I have also not overlooked the fact in considering this settlement that there is a real benefit to the plaintiff which cannot be quantified in monetary terms, of having a settlement in a reasonable sum which avoids the cost, expense and emotional difficulties associated with a contested hearing. Such a hearing may have lasted a week or more. There is also the intangible but nevertheless highly beneficial consequence of a settlement that there can be no appeal to a higher court, either by the plaintiff who may be dissatisfied with the sum concerned or by the defendant who may not be satisfied by the verdict entered. 8. A settlement of a reasonable sum agreed to between the parties – about which here both parties probably feel a little dissatisfaction because on the one hand, a sum less than the maximum is being accepted, and on the other hand, a sum more than the minimum is being paid – is always to be preferred over a contested hearing where there is no certainty about the outcome. 9. As well, this settlement results in a quicker determination than would be expected if the matter went to trial. Any trial would likely not be until sometime in 2024. If there was an appeal, the matter would continue into 2025. 10. Finally, although the plaintiff's parents are not directly the parties whose interests are being considered here, it is nevertheless appropriate to take into account the plaintiff's broader interests and the care that she is being provided with by her parents and their approach to that care. Conclusion 1. In all of the circumstances, I am persuaded by the material before me that I should approve the settlement, and I will. Orders 1. I make the following orders: 1. I approve the settlement pursuant to s 76 of the Civil Procedure Act 2005 in accordance with the terms of the amended Consent Judgment signed by the legal representatives for the plaintiff on 30 March 2023 and by the legal representative for the defendant on 3 March 2023, which I also signed on 22 May 2023. 2. I make orders in accordance with paragraphs [1], [2] and [6] of the terms of the Consent Judgment. I note the agreement between the parties set out in paragraphs [3]-[5] and [7]-[10] inclusive of the Consent Judgment. 3. Pursuant to s 77 of the Civil Procedure Act I order the defendant to pay the judgment sum referred to in paragraph [1] of the Consent Judgment less any authorised deductions for which the Consent Judgment provides, into Court. 4. I grant the parties liberty to apply. ********** 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: 14 June 2023