Supreme Court New South Wales Medium Neutral Citation: Joseph Cooper by his tutor Matthew Cooper v Central Coast Local Health District [2024] NSWSC 583 Hearing dates: 24 April 2024 Decision date: 17 May 2024 Jurisdiction: Common Law Before: Button J Decision: Settlement approved Catchwords: CIVIL PROCEDURE – application for approval of proposed settlement – professional negligence – proceedings commenced on behalf of six-year-old plaintiff – where plaintiff suffered permanent brain injury during birth – whether proposed settlement is beneficial to the interests of the plaintiff – settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW) s 76 Category: Principal judgment Parties: Joseph Cooper by his tutor Matthew Cooper (First Plaintiff) Daniella Galla (Second Plaintiff) Matthew Cooper (Third Plaintiff) Central Coast Local Health District (Defendant) Representation: Counsel: D Graham SC (First Plaintiff) K Kumar (Defendant) Solicitors: Maurice Blackburn Lawyers (First Plaintiff) Crown Solicitors Office (Defendant) File Number(s): 2017/386106 Publication restriction: Nil JUDGMENT 1. This judgment resolves an application for approval of a settlement of proceedings after mediation, brought pursuant to s 76 of the Civil Procedure Act 2005 (NSW). The approval is necessary because the plaintiff, Joseph Cooper, is aged 6 years, and he appears through a tutor, his father, Mr Matthew Cooper. 2. The background of the matter can be shortly stated. During his birth in a hospital in New South Wales, the plaintiff received permanent brain injury, chiefly cerebral palsy. It manifests itself chiefly through muscular difficulties, a problem moving his mouth, a speech disorder that renders his pronunciation unclear, an inability to make skilled movements with accuracy, and (perhaps indirectly) attention deficit hyperactivity disorder. Sadly, his difficulties will be ongoing. 3. The defendant, Central Coast Local Health District, has accepted liability founded in the professional negligence of its staff, and the settlement pertains only to an outstanding dispute about damages. 4. The application was supported by a great deal of documentation, including a confidential opinion from senior counsel for the plaintiff that I found, with respect, very illuminative. The lawyer for the defendant also made helpful oral submissions about the background points of contention. 5. In open court, senior counsel explained that the outstanding areas of dispute regarding damages had all been resolved; most of them, in fact, resolved towards the end of the spectrum for which the plaintiff had contended. 6. More generally, he emphasised the point that, although calculations underpinning damages claims of this kind have a superficial arithmetical certainty, in truth that can never be the case. For example, the degree of care that might be provided by his parents to the plaintiff for free in any event is not absolutely certain; nor is the fundamental question of the life expectancy of the plaintiff. 7. Senior counsel also submitted that, inevitably, trying to estimate the needs for care of a young person stretching many decades into the future is certainly a matter of contestable opinion and impression. 8. Finally, he emphasised that there are some legal aspects of damages in cases like these that are not absolutely clear, giving rise to further uncertainty, again calling for caution. 9. Turning to my determination, it is significant, I think, that liability has been accepted by the defendant. That means that there is not a significant "discount" within the settlement from the perspective of the plaintiff to allow for the possibility of complete failure of the claim. 10. Separately, having played a number of different roles in the administration of justice, I am well familiar with the uncertainty of litigation. In particular, I know how different the evidence of a witness, lay or expert, may appear at the end of cross-examination from how it appeared in a proof of evidence or expert report. As a result, I accept the general proposition that a cautious approach to significant litigation is very often appropriate. 11. Relatedly, I accept the evidence of the tutor that one of the advantages of settlement is an end to the pendency of the litigation, and the availability shortly of sums for the care of the plaintiff. 12. Separately again, I accept the proposition of senior counsel that even a circumscribed dispute such as this cannot be resolved arithmetically: expert opinions as to the course of the life of an injured person, and the need for differing levels of care at different times are, by their nature, contestable, and very often admit of no single right answer. Yet again, that argues for prudence, and resolution if possible. 13. As for the approach to this litigation generally by the legal team of the plaintiff, and his tutor, it is clear from the written material and the oral submissions that the former is expert in this area of litigation. And the latter, I accept without reservation, is motivated solely by a desire to do the best he can for his son in the circumstances that have arisen. 14. In short, I readily approve this settlement. 15. Finally, although the judgment will be placed on Caselaw, not least as an example of my approach to such matters, I think that some measures should be taken to protect the privacy of a very young person who will be coming into a very large sum of money. 16. I make the following orders: 1. Note that this matter has settled subject to approval, in accordance with the terms of a consent judgment dated 8 April 2024 and signed by the legal representatives of the parties. 2. Approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005. 3. Make orders in accordance with paragraphs 1 to 8 inclusive of the consent judgment dated 8 April 2024. 4. The judgment sum referred to in the consent judgment less the deductions referred to in the consent judgment is to be paid into Court pursuant to section 77(2) of the Civil Procedure Act 2005 (NSW), subject to further orders. 5. The confidential material placed before the Court on behalf of the plaintiff will be retained by the Court in an envelope marked "only to be opened by order of a Judge". ********** 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: 20 May 2024