Afriyie v DYVEST HEALTH CARE PTY LTD trading as Rickard Road Medical Centre [2024] NSWSC 826

Supreme Court New South Wales

Medium Neutral Citation: Afriyie v DYVEST HEALTH CARE PTY LTD trading as Rickard Road Medical Centre [2024] NSWSC 826 Hearing dates: On the papers Date of orders: 5 July 2024 Decision date: 05 July 2024 Jurisdiction: Common Law Before: Schmidt AJ Decision: Settlement approved Catchwords: CIVIL PROCEDURE – Application under s 76 of Civil Procedure Act 2005 (NSW) for approval of settlement with defendants – settlement for the benefit of the protected persons – consent orders made Legislation Cited: Civil Procedure Act 2005 (NSW), s 76 Category: Principal judgment Parties: Philomina Afriyie (First Plaintiff) Gertrude Owusu Sarpong (Second Plaintiff) Vudayagiri Ramakrishna Nagamma (Second Defendant) Pooi Kun Chow (Sixth Defendant) South Western Sydney Local Area Health District (Seventh Defendant) Representation: Solicitors: Brydens Lawyers (First and Second Plaintiffs) HWL Ebsworth (Second Defendant) Meridian Lawyers (Sixth Defendant) Norton Rose Fulbright (Seventh Defendant) File Number(s): 2022/00225778 Publication restriction: Nil

JUDGMENT 1. These proceedings concern claims for damages which Ms Afriyie seeks for herself and her infant children as the result of the death of her partner, Mr Ampomah, in 2017 at Bankstown Hospital. They also concern claims for damages which Ms Sarpong, still being Mr Ampomah's spouse at the time of his death, seeks as the result of his death for herself and her adult children in Ghana, where they still reside. 2. Mr Ampomah died unexpectedly. On later autopsy it was established that he had suffered a severe non-ischemic cardiomyopathy, in circumstances where he had no prior disclosed history of cardiac problems. He had never sought treatment from his general practitioners for such a condition, had never been diagnosed to be suffering it and it was not identified when he presented at Hospital suffering symptoms of influenza. 3. The proceedings against the first, third, fourth and fifth defendants were resolved on the basis of judgments Fagan J entered in favour of those defendants in August 2023. 4. This judgment deals with an application under s 76 of the Civil Procedure Act 2005 (NSW) for approval of a settlement with the second, sixth and seventh defendants, which emerged as the result of a mediation between the parties. It is sought on the basis of an April 2024 confidential advice from counsel, supported by affidavits which Ms Afriyie and Ms Sarpong, as well as their solicitor Mr Tran and a paralegal in the employ of their solicitor, each swore in June 2024. 5. For reasons which follow I am satisfied that the Court's discretion to approve the settlement should be exercised, its purpose being protective and to be exercised when the Court is satisfied that the settlement is for the benefit of the protected persons. In this case, Ms Afriyie's infant children. That is because I am satisfied that it is unlikely that a more favourable judgment will result for them if the approval is withheld and that the result of the approval will provide certainty which is desirable and in their interests. 6. The advice and Mr Tran's affidavit explain the expert opinions which have been obtained for Ms Afriyie and Ms Sarpong, as well as those served by the defendants. These expert opinions were provided. 7. They dealt with the liability of the remaining defendants, who are general practitioners and the Hospital, as well as the duty of care which they owed Mr Ampomah. The experts had directly competing views, which Counsel also explained, about matters such as causation, breach, liability and quantum. The issues raised were considered to be complex and problematic, given the lay evidence that when he died Mr Ampomah was regarded to have been a strong and robust person with no health problems. Even on the day he was taken to Hospital he had intended to go to work, with the result that his sudden death came as a shock. 8. Mr Ampomah had consulted Dr Chow the day before he died. Ms Afriyie called an ambulance, but he died at the Hospital without being given any indication that he was seriously ill. 9. Ms Afriyie attended the mediation and understood what the settlement provided, including for Ms Sarpong. For her part, Ms Sarpong explained in her affidavit how she came to be a plaintiff in the proceedings, the advice she had received about the proposed settlement and how she also came to agree with it. 10. That accorded with all else which Counsel advised. Counsel explained the problems with successful pursuit of the claims, including because even if he had survived, there were real issues about the extent to which Mr Ampomah would have been able to provide his children with ongoing financial support. That was because of his significant cardiac problems. 11. In the result, Counsel came to the view that acceptance of the settlement amount proposed, plus costs, was in the best interests of the children. Ms Afriyie and Ms Sarpong have given instructions as to how it is to be split and invested for the infant children and the parties have agreed on the orders necessary to give effect to the settlement. 12. Having considered and taken all of this evidence into account, I am satisfied that taking proper account of the legal advice which Ms Afriyie and Ms Sarpong have received and which must be given significant weight, the proposed settlement must be approved, beneficial as it is for the affected children.