Babette Nolan (a pseudonym) v Western Sydney Local Health District [2023] NSWSC 671

Supreme Court New South Wales

Medium Neutral Citation: Babette Nolan (a pseudonym) v Western Sydney Local Health District [2023] NSWSC 671 Hearing dates: 19 June 2023 Decision date: 21 June 2023 Jurisdiction: Common Law Before: Button J Decision: Settlement approved Catchwords: CIVIL PROCEDURE – Application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – Whether proposed settlement is beneficial to the interests of the plaintiff – Settlement approved Legislation Cited: Civil Liability Act 2002 (NSW), s 5O Civil Procedure Act 2005 (NSW), s 76(3) Cases Cited: Dean v Pope [2022] NSWCA 260 Elliot v Diener (1978) 21 ACTR 21 Karvelas (an Infant) v Chikirow (1976) 26 FLR 381 Robinson v Riverina Equestrian Association [2022] NSWSC 1613 Category: Principal judgment Parties: Babette Nolan (a pseudonym) (Plaintiff) Western Sydney Local Health District (Defendant) Representation: Counsel: S Maybury (Plaintiff) R Cheney SC with B Bradley (Defendant)

Solicitors: Turner Freeman, Lawyers (Plaintiff) Crown Solicitor's Office (NSW) (Defendant) File Number(s): 2020/253238 Publication restriction: Pseudonyms and redactions on Caselaw to protect privacy of profoundly disabled person under legal incapacity and her family.

JUDGMENT

Background 1. On [redaction], Mrs Patricia Nolan (a pseudonym) ("the tutor") was a patient at Westmead Hospital. She was heavily pregnant, and the pregnancy was "post mature", giving rise to increased risk. She gave birth by caesarean section at [redaction] on the latter date to her daughter Babette Nolan (a pseudonym) ("the plaintiff"). Tragically, the plaintiff, now [redaction] years of age, suffered a severe brain injury caused by insufficient oxygenated blood to her brain, with the result that she is profoundly disabled, and requires constant and intense care. 2. The plaintiff commenced proceedings in this Court against the Western Sydney Local Health District ("the defendant") on 31 August 2020. A mediation failed, but subsequent settlement negotiations succeeded. The parties are agreed that a very significant sum of money should be paid by the defendant to the plaintiff, the vast bulk of which is directed towards her future care. It is that agreement that I am asked to approve, pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW), as part of my role as Duty Judge. 3. The test is simply whether I am satisfied that the settlement is in the best interests of the plaintiff: see Karvelas (an Infant) v Chikirow (1976) 26 FLR 381 at 382; Elliot v Diener (1978) 21 ACTR 21 at 22; and Robinson v Riverina Equestrian Association [2022] NSWSC 1613 at [5].