New South Wales Supreme Court CITATION : Porter v Le [2010] NSWSC 998 HEARING DATE(S) : 28 June 2010 and 2 September 2010 JUDGMENT DATE : 8 September 2010 JUDGMENT OF : Harrison J 1. Subject to the provision of evidence that she has no interest in the proceedings adverse to the interests of Mr Porter, the person under legal incapacity, I appoint Barbara Mottershead as his tutor in these proceedings. 2. Grant leave to the plaintiff to file an amended statement of claim to give effect to or to reflect order (1). DECISION : 3. Vacate the order made by me on 28 June 2010 staying the proceedings. 4. Decline to approve the settlement. 5. Stand the proceedings over to the Registrar's list on a date suitable to the parties to be arranged in consultation with my Associate. 6. Make no order as to the costs of the application for approval. CATCHWORDS : COMPROMISE – disable person - application by tutor for approval of settlement – removal of tutor with interest adverse to disable person – appointment of new tutor – settlement not in best interests of disable person – approval withheld. LEGISLATION CITED : Uniform Civil Procedure Rules Civil Procedure Act 2005 CATEGORY : Procedural and other rulings PARTIES : Arthur George Porter by his tutor Helen Faye Porter (Plaintiff) Phong Le (Defendant) FILE NUMBER(S) : SC 2007/265150 COUNSEL : D E Graham (Plaintiff) J M Morris with F Maghami (Defendant) SOLICITORS : Carroll & O'Dea (Plaintiff) Norton Rose (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HARRISON J 8 September 2010 2007/265150 Arthur George Porter by his tutor Helen Faye Porter v Phong Le JUDGMENT 1 HIS HONOUR: On 28 June 2010, this matter came before me for approval of a settlement. There was no issue that Mr Porter is a disable person for the purposes of the Uniform Civil Procedure Rules and is unable to commence or continue proceedings except by his tutor. Mr Porter's wife then acted as his tutor. 2 The proposed settlement contemplated a verdict for Dr Le and an order that each party should pay its own costs of the proceedings. In the events that occurred, I was not prepared at that time to consider the proposal for the reasons that I then set forth. Briefly stated, Mrs Porter was concerned that if the settlement were not approved, and if the case proceeded to trial and Mr Porter lost, she would be personally liable for any adverse costs order that resulted. As her only asset from which such an order could be satisfied was the family home that she occupied alone, and which she had previously occupied with her husband before he was injured, she expressed support for the settlement and its approval by me. Her position was eloquently identified in an affidavit that she swore for my consideration, which included the following paragraphs: "7. I understand that any settlement is on a once-and-for-all basis, and that Arthur will have no further rights to compensation from the Defendant if there is a settlement. I also comprehend that there are risks with the litigation in the event that it continues and that one of those risks is that the Plaintiff may lose. As the tutor, I understand I may be liable for the Defendant's costs in the event he succeeds, and that those costs may be significant. 8. As a result of my husband's brain damage, I to date have lost my husband and our future together. I have sold some assets to get by. I am very concerned that, if the litigation continues and the Defendant is successful, then, as tutor, I would then lose my family home to pay for the Defendant's costs. If that occurred, then it would be a tragedy which would compound upon the enormous loss I and my family have suffered already. I am frankly frightened about this possibility. I have lost so much already, I do not want to lose any more. 9. I hope that, if Arthur could communicate, he would tell me not to run the risk of losing our home. 10. At the same time, I do not believe the proposed settlement is in Arthur's best interests. This is because it leaves him with nothing in circumstances where he needs so much care, assistance and services. I feel caught between my own need to protect my future and the interests of my husband. 11. After much consultation with my family, I arrived at the difficult decision of accepting the offer made by the Defendant. I was, and remain, extremely reluctant to accept the offer as I feel I have let Arthur down in not continuing with the litigation, however, the threat of losing the family home, my largest asset, was ultimately the governing factor in my acceptance of the Defendant's offer." 3 I therefore considered that Mrs Porter as the tutor had an interest in the outcome that was adverse to the interests of Mr Porter as the incapable person. This was because the settlement was of no discernible benefit to Mr Porter, as he was neither personally liable for the costs if he ultimately lost, nor did he stand to gain anything from the settlement in practical terms if it were approved. Conversely, Mrs Porter had much to gain if approval of the settlement eliminated the risks for her of having to meet an adverse costs order, and Mr Porter was in any event likely to remain in the receipt of care at least of the type with which he was then being provided. I formed the view that it was therefore inappropriate for the Court to be asked to consider the approval in those circumstances. The particular poignantly expressed and irreconcilable interests of Mrs Porter in the outcome of my decision concerning the approval had the potential to influence an objective consideration by me of the question of whether or not it was in the best interests of her husband. As appears above, Mrs Porter's evidence even went as far as to suggest that her husband would have favoured the settlement, if he had only been capable of expressing or communicating a view about it, having regard to the risks to which she might become exposed if it were not approved. It was my opinion that an exercise of discretion in those circumstances had the potential to miscarry in fact, or at least to be attended by the perception that it may not have been exercised having regard to the best interests of the plaintiff. 4 UCPR 7.18 is in these terms: " 7.18 Court may appoint and remove tutors (1) In any proceedings in which a party is or becomes a person under legal incapacity: (a) if the person does not have a tutor, the court may appoint a tutor, or (b) if the person has a tutor, the court may remove the party's tutor and appoint another tutor. (2) In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings. (3) If the court removes a party's tutor, it may also stay the proceedings pending the appointment of a new tutor. (4) Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal incapacity and, if it proposes removal of the person's tutor, on the tutor. (5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include: (a) evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and (b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity. (6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor." 5 I therefore ordered that the tutor be removed pursuant to UCPR 7.18(1)(a) and stayed the proceedings pursuant to UCPR 7.18(3) pending the appointment of a new tutor. Having regard to what had occurred, and to the extent to which all interested parties had been legally represented, I dispensed with service upon the plaintiff of a notice of motion to remove the tutor, by order otherwise pursuant to UCPR 7.18(4). 6 The matter has now returned to me. I am asked to do two things. First, to deal with an application by Barbara Mottershead to be appointed as the plaintiff's tutor. That application is supported by her affidavit sworn 27 August 2010. It contains evidence that Ms Mottershead consents to being appointed as the plaintiff's tutor but does not in terms contain evidence that she does not have any interest in the proceedings adverse to Mr Porter's interests, as required by UCPR 7.18(5). There is sufficient evidence that Mr Porter is a disable person. I am content in the circumstances of this case to proceed upon the basis that I will have been provided with evidence that Ms Mottershead does not have an interest adverse to that of Mr Porter before I make final orders on her application. 7 Secondly, subject to her appointment, I am asked by Ms Mottershead to approve the settlement. In short, the facts that give rise to the proceedings are as follows. Mr Porter was admitted to hospital and subsequently became severely disabled as the result of an infection. The single most important issue in the proceedings for present purposes, and the most troublesome, is whether Mr Porter had been exposed to the infection before or after he was admitted to the hospital. That issue arises in the following way. 8 Mr Porter sues Dr Le, who was his general practitioner, and as such responsible for the management of health issues affecting him from 26 July 2004. Mr Porter alleges that Dr Le negligently prescribed Panafcort, a corticosteroid, at a consultation on that day, which compromised Mr Porter's immune response to an infection from which he was then suffering. The Panafcort also masked the true nature of Mr Porter's illness over the next few days. As a result of his compromised immune response, Mr Porter suffered from a Klebsiella pneumoniae septicaemia and endotoxaemia, which led to a Friedrich-Waterhouse like syndrome with intravascular coagulation, thrombosis and infective emboli moving to the adrenal gland, retinal arteries and to the brain causing brain abscesses. Mr Porter thereafter sustained severe brain damage and now requires 24 hour per day care. He currently resides permanently in a nursing home. 9 Dr Le contends either that the better scientific medical analysis supports the likelihood that Mr Porter became infected only after he was admitted to hospital for the treatment of a condition that he sustained without negligence on the part of Dr Le, or alternatively that Mr Porter simply cannot establish on the balance of probabilities that he contracted the infection before, and not after, he was admitted to hospital. 10 I have been provided with a significant amount of expert medical opinion and supporting material. I have also been given the benefit of a detailed and thorough confidential written opinion from Mr Graham of counsel, who appears for Mr Porter. It is sufficient to observe that there is a fierce contest between the parties on the question of Dr Le's liability and that the available expert material does not presently suggest any obvious or inevitable outcome in the ultimate resolution of the contest. It cannot be said, upon the basis of this material considered at this preliminary stage, that Mr Porter will win and Dr Le will lose or vice versa. Each would appear to have an arguable case. 11 In these circumstances, I am not prepared to approve the settlement. Section 76 of the Civil Procedure Act 2005 provides as follows: " 76 Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity (1) This section applies to proceedings commenced by or on behalf of, or against, any of the following persons: (a) a person under legal incapacity, (b) a person who, during the course of the proceedings, becomes a person under legal incapacity, (c) a person whom the court finds, during the course of the proceedings, to be incapable of managing his or her own affairs. (2) The court may make a finding referred to in subsection (1) (c) only on the basis of evidence given in the proceedings in which it is made, and such a finding has effect for the purpose only of those proceedings. (3) Except with the approval of the court, there may not be: (a) any compromise or settlement of any proceedings to which this section applies, or (b) any acceptance of money paid into court in any such proceedings, as regards a claim made by or on behalf of, or against, a person referred to in subsection (1). (4) If an agreement for the compromise or settlement of any matter in dispute in any such proceedings is made by or on behalf of a person referred to in subsection (1), the court may approve or disapprove the agreement. (5) An agreement disapproved by the court does not bind the person by whom or on whose behalf it was made. (6) An agreement approved by the court binds the person by whom or on whose behalf it was made as if he or she were of full capacity and (if it was made by some other person on his or her behalf) as if that other person had made the agreement as his or her agent." 12 As I have indicated, the final resolution of the dispute joined in the proceedings cannot be known unless and until the matter is finally decided. It is important that for present purposes I express no view about what that outcome may be. This is for the obvious reason that I have not had the benefit of a contested assessment and analysis of the evidence, as well as for the reason that any imperfectly expressed or poorly based opinion may potentially affect the just and transparent adjudication of the proceedings in due course. 13 I therefore make the following orders: 1. Subject to the provision of evidence that she has no interest in the proceedings adverse to the interests of Mr Porter, the person under legal incapacity, I appoint Barbara Mottershead as his tutor in these proceedings. 2. I grant leave to the plaintiff to file an amended statement of claim to give effect to or to reflect order (1). 3. I vacate the order made by me on 28 June 2010 staying the proceedings. 4. I decline to approve the settlement. 5. I stand the proceedings over to the Registrar's list on a date suitable to the parties to be arranged in consultation with my Associate. 6. I make no order as to the costs of the application for approval. ********** 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.