Lauren Fisher by her Tutor Janice Fisher v Dr Raymond Marin & Anor [2007] NSWSC 1411

New South Wales Supreme Court

CITATION : Lauren Fisher by her Tutor Janice Fisher v Dr Raymond Marin & Anor [2007] NSWSC 1411

HEARING DATE(S) : 9,10 August 2007 29, 30 October 2007

JUDGMENT DATE : 11 December 2007

JUDGMENT OF : Patten AJ at 1

DECISION : See paragraph 112

LEGISLATION CITED : Contracts Review Act 1980 Civil Procedure Act 2005

Nguyen v Taylor (1992) 27 NSWLR 48; Baltic Shipping Co v Dillon (1991) 22 NSWLR 1; Amcor Ltd v Watson [2000] NSWCA 21; CASES CITED : West v AGC (Advances) Ltd (1986) 5 NSWLR 610; Mitchell v Osbourne (unreported 20 May 1997); Smallman v Smallman [1972] Fam 25; Dietz v Lenning Chemicals Ltd [1969] 1AC 170.

Lauren Fisher by her tutor Janice Fisher - Plaintiff PARTIES : Dr Raymond Marin - First Defendant Women's and Children's Hospital, Adelaide - Second Defendant

FILE NUMBER(S) : SC 20247 of 2002

COUNSEL : Mr A Bartley SC with Mr R Ingram - Plaintiff Mr ASullivan QC with Mr J Downing - Defendants

SOLICITORS : Commins Hendriks - Plaintiff Blake Dawson Waldron - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Patten AJ

11 November 2007

No: 20247 of 2002

Lauren Fisher by her Tutor Janice Fisher v Dr Raymond Marin & Anor

JUDGMENT 1 The Plaintiff moves on an Amended Notice of Motion (the Notice of Motion) for the following orders: "1. An order declaring that the agreement or purported agreement is void in whole and or refusal to enforce the provisions of the agreement or purported agreement on the grounds that it is unjust pursuant to section 7(1) of the Contracts Review Act (NSW) 1980 (as amended) on the following further grounds: (i) of undue influence and or improper pressure (ii) that the agreement or purported agreement is not in the best interests of the plaintiff. (iii) that the Plaintiff's tutor was not reasonably able to protect the interests of the Plaintiff because of the state of her physical and or mental capacity set out in section 9 (2)(e)(ii) of the Act in (sic) 2. The agreement constituted by the Plaintiff's offer of Compromise dated 8 August 2006 and the Defendants acceptance dated 23 August 2006 be declared void or be set aside pursuant to Part 20 Rule 29(1) of the Uniform Civil procedure Rules 2005 on the following grounds. (i) The Plaintiff's tutor's consent to making the offer was vitiated or lacked voluntariness on the grounds of undue influence and/or the Plaintiff's physical or mental capacity. (ii) The agreement is not in the best interests of the Plaintiff . (iii) The agreement is not a valid or binding contract until approved by the Court. 3. An order or declaration that the agreement is not a valid or binding contract until approved by the Court. 4. Further or in the alternative a declaration or order that the agreement is void on the grounds of public policy namely: (i) The Plaintiff's tutor's instructions were obtained as a result of undue influence and/or improper pressure (ii) The Plaintiff's tutors consent to make the offer lacked voluntariness on the grounds of undue influence and/or the Plaintiff's tutor's physical and or mental state." 2 Although the offer of compromise and the acceptance do not seem to be in evidence before me, (despite the very large quantity of material tendered), it was common ground that by letters dated 8 August 2006 the Plaintiff's then solicitors, on behalf of the Plaintiff, conveyed to the Defendants' solicitors an offer to compromise the action for the sum of $2.4m plus costs, and that the Defendants' solicitors accepted the offer on 23 August 2006. There was no challenge in any formal sense to the constitution of a contract in this way. 3 The proceedings brought by the Plaintiff's mother as her tutor allege negligence by the Defendants in relation to the birth of the Plaintiff in the Second Defendant's hospital on 17 July 1985. The First Defendant was the tutor's specialist obstetrician. 4 It was alleged that as a consequence of the Defendants' negligence the Plaintiff suffered "hypoxic brain damage, hypoxic ischaemic encephalopathy and subsequently, she developed cerebral palsy". 5 Particulars of negligence alleged against the First Defendant included: "(c) Failure to attend on Mrs Fisher at sufficiently regular intervals and for sufficient periods of time in order to make accurate judgments as to the progress of the labour and, therefore failure to recognise the potential for intrapartum threat to the welfare of the plaintiff. (d) Failure to effect emergency Caesarean Section delivery of the plaintiff in a timely manner in accordance with accepted standards of obstetric management so as to minimise the harmful effects of foetal distress and hypoxic ischaemic encephalopathy on the plaintiff." 6 As against the Second Defendant, particulars of negligence included: "(b) Failure to examine properly and review the progress of the labour. ………………………… (f) Failure to recognise that the labour had become dysfunctional. ………………………. (h) Failure to promptly and properly act upon signs of possible foetal distress.