Supreme Court New South Wales Medium Neutral Citation: Lennox Smith bhnf Benjamin Smith v Central Coast Local Health District [2024] NSWSC 217 Hearing dates: 5 March 2024 Date of orders: 5 March 2024 Decision date: 05 March 2024 Jurisdiction: Common Law Before: Campbell J Decision: Approve the proposed settlement as set out in the Consent Judgment dated 10 January 2024 Catchwords: CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – admission of breach of duty of care – whether proposed settlement in best interests of plaintiff – settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76(4), 77(2) Category: Principal judgment Parties: Lennox Smith bhnf Benjamin Smith (Plaintiff) Central Coast Local Health District (First Defendant) Representation: Counsel: P Beale (Plaintiff) K Kumar (Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) Crown Solicitor for NSW (Defendant) File Number(s): 2020/126791 JUDGMENT 1. HIS HONOUR: The plaintiff sues the defendant by his next friend, who is his father, for damages for medical negligence that relates to the misdiagnosis at a public hospital of a condition of retropharyngeal abscess. The misdiagnosis of that condition caused, in the opinion of Dr Bernard Hudson, irreversible bone destruction, and has led, in the opinion of Dr Michael Bellemore to a permanent torticollis, an abnormal fixed posture in his neck, but more significantly perhaps, it has also led to a bony fusion at the C1/C2 level in his spine. Those conditions have, in the opinion of Dr Marc Coughlin led to a significant reduced range of movement in the plaintiff's cervical spine, particularly in terms of axial rotation, due to the fusion to which I have referred. 2. Although the matter had been the subject of significant dispute, by its amended defence filed on 2 November 2023, the defendant has admitted breach of duty of care, although liability per se is not admitted. It is part of that admission that the defendant accepts that the misdiagnosis did result in the permanent torticollis involving restriction of movement in the plaintiff's neck. 3. The plaintiff was about 6 years old at the time of this medical misadventure. He is now 13 years of age, and the most significant issue relates to the future course of his injury, about which there is a dispute, and also the likely future economic loss that will be suffered by him. 4. I should also say that the plaintiff, on the medical evidence in his case from the psychiatrist Dr Karen Gaunson, has also suffered a chronic major depressive disorder due to the injurious disruption of the normal activities of his young life. The expert is of the view, that mental disorder is in partial remission currently. I should say that diagnosis is disputed by Dr Antony Milch, qualified for the defendant. 5. I have had the benefit of the confidential advice of Mr Beale of learned counsel who practices extensively in the medical negligence area, appearing typically for plaintiffs, which has very well, as one would expect of counsel of his standing, set out the issues in the case and his opinion in relation to their potential resolution. I have also had the benefit of an affidavit from the next friend, and I acknowledge that it is his desire, and also of his wife, the plaintiff's mother, that the settlement be approved. 6. I am informed by Mr Beale that the plaintiff is progressing well at high school. He is now 13 years of age, and his parents are aware of the potential difficulties in the future and are encouraging him in his studies and, as seems to be the fashion these days, notwithstanding his attendance at a private school, paying for him to attend after school tuition. 7. The issues, as I have said, relate to the future course of the plaintiff's condition. The evidence garnered on his behalf suggests that given the young age at which he suffered this fusion as a consequence of the disease process involved with the retropharyngeal abscess, there is likely to be additional wear and tear on the next level, being the C2/C3 level and possibly below that. The increased mechanical pressure at those levels may give rise to the need for a surgical fusion at the C2/C3 level and, as I have said, perhaps at a lower level or levels. 8. This is not necessarily, if I can put it that way, accepted by the defendant's medical assessors especially the rehabilitation specialist Dr Seamus Dalton, who is well-known in this area. He is of the view that some of the opinions expressed on behalf of the plaintiff are unduly pessimistic. He is also of the view that while the plaintiff would be unsuited for any occupation involving heavy manual labour, he is likely to have a wide range of occupational options available to him. 9. I interpolate that Dr Dalton accepts the basic underlying pathology in terms of the occurrence of a solid bony fusion because of the progress of the misdiagnosed retropharyngeal abscess, but he takes the view that future treatment is unlikely to be necessary or perhaps available. 10. There is also a difficulty with, as I discussed with Mr Beale, assessing likely future economic outcomes for untried children. I allow myself the observation that it is not only unskilled work that can involve manual labour. Obviously, some professions, such as engineering and the like, might involve aspects of manual labouring for which, by reason of the consequences of the defendant's negligence, the plaintiff is now unfit. 11. It's also the case, of course, and one should not overlook this consideration, that from the age of 6, his young life has been disrupted in a material way, which no doubt has led to a very significant loss of amenity and loss of enjoyment of life and, given the permanence of the injury, damages for non-economic loss are likely to have been significant, if I may put it that way. 12. But the real issue relates to, as I have said, the cost of future treatment and the assessment of economic loss, the latter especially involving many imponderables. Whilst one must always take a conservative view, I think in relation to the interests of a plaintiff who is a minor, having regard to the opinion of Mr Beale and the wishes of the parents and having considered the issues for myself, I am satisfied that the sum proposed is in the plaintiff's best interests and I am therefore of a mind to approve the settlement under s 76(4) Civil Procedure Act 2005 (NSW). 13. I have considered that perhaps settlement could be delayed, given that the defendant has effectively admitted liability and the plaintiff is 13 years of age. However, even at the age of 18 there would still be so many imponderables that I accept the view presented by Mr Beale that there would be little point to delaying settlement inasmuch as the imponderables would be unlikely to be resolved by that then. 14. At this stage it's not proposed, other than that s 77(2) Civil Procedure Act should have its normal effect and the proceeds of the settlement should be paid into court, pending an application that will be made to the protective judge for payment out to a nominated funds manager until the plaintiff attains his majority. 15. I have considered the material relating to deductions. There will be a margin of deduction for irrecoverable solicitor and client costs, which will be a matter for the approval of the fund manager in due course, but the amount estimated by the plaintiff's solicitor, Ms Baqleh, does not seem to me to be unreasonable and as far as other deductions for Government charges are concerned, they are very modest. 16. I am satisfied that the net proceeds of the settlement represent an appropriate settlement, as I have said, which is in the plaintiff's best interests. 17. Having approved the settlement, I make orders with the consent of the parties in accordance with para 1 of the form of consent order signed by the solicitors for the parties. I note the agreement of the parties at paras 2, 3, 4, 5, 6 and 7 of the consent orders. The judgment in para 1 may be entered forthwith. The net proceeds after deductions of government charges are to be paid into 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: 06 March 2024