Supreme Court New South Wales Medium Neutral Citation: Denehy bhnf Denehy v South Western Sydney Local Health District [2024] NSWSC 510 Hearing dates: 30 April 2024 Date of orders: 30 April 2024 Decision date: 30 April 2024 Jurisdiction: Common Law Before: Weinstein J Decision: Settlement approved Catchwords: CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Budini v Sunnyfield [2021] FCA 1540 Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 Category: Procedural rulings Parties: Jayson Denehy bhnf Cathy Denehy (Plaintiff) South Western Sydney Local Health District (Defendant) Representation: Counsel: P Beale and E Bartley (Plaintiff) Solicitors: CMC Lawyers (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2019/263470 Publication restriction: Nil JUDGMENT 1. This is an application for judicial approval of a settlement pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW) ('the Act'). 2. Medical evidence suggests that the plaintiff suffers from, at least, a mild degree of intellectual disability. It is variously described in the evidence. Counsel for the plaintiff invites me to find that the plaintiff is a person who is incapable of managing his own affairs for the purposes of s 76(1)(c) of the Act. I find that he is. The court's approval is therefore necessary for the settlement to be effected. Background 1. The plaintiff was born on 24 July 2001 and was conceived in or about early November 2000. 2. On 23 July 2001, approximately 38 weeks after the plaintiff was conceived, the plaintiff's mother was admitted to Bankstown Hospital for a scheduled caesarean delivery. Upon admission the foetus was in a frank breech position. 3. At 11.00am, the plaintiff's mother was admitted to theatre for the purpose of caesarean section. Four unsuccessful attempts were made at an epidural anaesthesia injection, and the plaintiff's mother was thereafter given general anaesthesia. 4. At 1.00pm on the following day, 24 July 2001, the plaintiff was born. It is alleged that he required bag and mask ventilation for bradycardia, poor colour and tone immediately following birth. 5. It is further alleged that the plaintiff's temperature was hypothermic, and that he had a respiratory rate of 64 breaths per minutes with some nasal flaring 15 minutes after birth. Thirty minutes after birth, his breathing rate allegedly fell to 50 breaths per minute. His blood glucose level was tested and he was given an intravenous infusion of dextrose in the following hours. His blood glucose level was reported to be within the normal range later that evening. 6. On 29 November 2020, an FDG-PET-CT scan was reported to show a small area of focal relative photopenia confined within the left superior frontal region of the brain. 7. The plaintiff's case is that the defendant failed to ensure that the plaintiff had an appropriate level of oxygen, warmth and glucose immediately following birth. He alleges that, as a result of these failures, he now suffers from autism, ADHD, ADD, oppositional defiant and conduct disorders, neurodevelopmental disorder, receptive language disorder, anxiety, severe developmental delay, double incontinence and hypotonic gait. 8. The defendant denies that it was negligent. 9. On 23 August 2019, the plaintiff commenced these proceedings and seeks the recovery of damages. The parties have reached a proposed settlement and the matter is now before me for approval of that settlement. 10. In support of the application for approval, I received the following: 1. An affidavit of Cathy Denehy, who is the plaintiff's mother and his tutor in these proceedings, affirmed on 22 April 2024; 2. An affidavit of Tegan Wills, the plaintiff's solicitor, affirmed on 22 April 2024 with an exhibit annexing approximately 500 pages of medical evidence; and 3. A confidential advice of Mr Beale and Ms Bartley of counsel dated 22 April 2024. Relevant principles 1. In an application for approval of a settlement pursuant to s 76(3) of the Act, the Court's function is protective. The ultimate question is whether the proposed settlement is beneficial to the interests of the plaintiff, or in his best interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 ('Mills') at [29]; Budini v Sunnyfield [2021] FCA 1540 at [10]. 2. It is the Court's responsibility to determine this matter, albeit with the assistance of confidential advice provided by counsel for the plaintiff: Mills at [29]; Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 ('Scandolera') at [27]. 3. In its determination, the Court is to consider the "advantages and disadvantages of the litigation continuing not only in terms of whether [the plaintiff] 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 assent to the compromise, which has occurred here. Consideration 1. As I have said, the defendant denies that it was negligent. There are significant disputes between the parties, including as to breach of duty, causation and damages. 2. The plaintiff has served expert evidence which suggests a causal connection between a cortical microscopic brain injury and a neonatal severe hypoglycaemic insult. 3. On the other hand, expert evidence served by the defendant suggests that the plaintiff's blood glucose level did not justify alternative action and that there may be another cause or causes of the plaintiff's injuries and disabilities. 4. The parties' experts reach different conclusions in relation to all heads of damage. 5. I have carefully considered the opinions and conclusions of counsel in the confidential advice. I have also taken into account the matters expressed by Ms Denehy and Ms Wills in their respective affidavits, as well as the advantages and disadvantages of this litigation continuing. 6. There is real risk that the plaintiff's case may fail entirely or, in the event of his success, that he will receive an amount in damages that is less than the settlement amount. 7. Bearing in mind all the material that has been placed before me, in my opinion the proposed settlement is a compromise that is beneficial to, and in the best interests of the plaintiff. Orders 1. I make the following orders:- 1. I approve the settlement pursuant to s 76 of the Act. 2. I make orders 1 and 9 in the Consent Judgment. 3. I note paragraphs 2, 3, 4, 5, 6, 7, 8 and 10 of the Consent Judgment. ********** 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: 02 May 2024