Supreme Court New South Wales Medium Neutral Citation: Wrzesinski v Lukaszewicz [2015] NSWSC 1210 Hearing dates: 25 August 2015 Date of orders: 26 August 2015 Decision date: 26 August 2015 Jurisdiction: Common Law Before: Schmidt J Decision: 1. The proceedings be dismissed. 2. There be no order as to costs. 3. All previous costs orders are discharged. Catchwords: PROCEDURE - approval of settlement proceedings involve a defendant who was appointed a tutor - settlement is in defendant's interests - settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW) Civil Liability Act 2002 (NSW) Limitation Act 1969 (NSW) Category: Principal judgment Parties: Konrad Piotr Wrzesinski by his tutor Magdelena Wrzesinska (Plaintiff) Kazmiera Lukaszewicz (Defendant) Representation: Counsel: Mr RH Weinstein SC with Mr J Downing (Defendant) Solicitors: Sweeney Tiggemann (Plaintiff) TressCox Lawyers (Defendant) File Number(s): 2008/289575 Publication restriction: Nil Judgment 1. By his tutor, his mother Mrs Magdalena Wrzesinska, Mr Wrzesinski seeks the Court's approval of an agreement reached between the parties before the commencement of the adjourned hearing on 24 August 2015. Thereby it was agreed that the proceedings should be dismissed, there be no order as to costs and all previous costs orders be discharged. 2. Section 76 of the Civil Procedure Act 2005 (NSW) provides: "76 Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity (cf Act No 25 1929, section 4) (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." 1. The application was supported by affidavit evidence given by Mrs Wrzesinska, Mr Sweeney, Mr Wrzesinski's solicitor, and Mr Wright, the defendant Dr Lukaszewicz's solicitor, as well as various documents, including expert reports. That evidence establishes the very considerable advantage which the parties' agreement confers on Mr Wrzesinski. 2. Mr Wrzesinski's claim was that in August 1992, when he was aged 15, Dr Lukaszewicz negligently administered a flu injection, with the result that he developed an encephalitic inflammatory response; that he also later received inadequate treatment; and that the result was that he suffered significant injuries and disabilities. They include permanent neurological damage, cortical, cerebral, neuropsychological and cognitive impairment, as well as autistic spectrum disorder, photophobia and balance problems. 3. The alleged negligence is in issue. The date on which the flu vaccine was administered is in dispute, as is a claim that records maintained by Dr Lukaszewicz were later altered. While there is no issue that Mr Wrzesinski suffers from a serious disability, that this was the result of the flu vaccine, was in issue, as was whether Mr Wrzesinski in fact, suffered any adverse reaction to that vaccine. A defence under the Limitation Act 1969 (NSW) was pleaded, breach of duty of care was also in issue, as was whether a defence arose under s 5O of the Civil Liability Act 2002 (NSW). Whether Mr Wrzesinski suffered schizophrenia independently of the flu vaccination and whether his current incapacity was causally connected to the administration of the vaccine and would have differed, if he had received different treatment, were also all put in issue. 4. In part, the issues lying between the parties depend on the existence and nature of an allergy to eggs, egg protein or egg whites which Mr Wrzesinski claims to have suffered, with the result an encephalitic inflammatory response to the vaccine. There was also material which suggested that even before the 1992 flu injection, however, he had a history of developmental problems and psychiatric issues. Whether he contracted acute disseminated encephalomyelitis (ADEM) and whether that caused or contributed to his mental illness, also remained in issue. 5. There had also been a considerable controversy between highly qualified medical experts engaged by the parties who had examined Mr Wrzesinski, both about the nature and the cause of his condition, having regard to his history and what considerable examinations of his brain have revealed, over time. 6. The matter has had a very considerable procedural history. An earlier hearing was vacated. When the matter came on for a three week hearing before Adamson J on 17 August, Mr Wrzesinski's senior and junior counsel sought and were granted leave to withdraw, in circumstances where her Honour was informed that Mr Sweeney would also have to consider his position. An application was then made for Dr Lukaszewicz that the matter to be dismissed for want of due despatch. After hearing from Mr Wrzesinski, that application was adjourned to 18 August. 7. On 18 August, Mr Sweeney appeared for Mr Wrzesinski and sought another adjournment, which was opposed and the dismissal application pressed. In the alternative an adjournment only until the following Monday, so that the hearing might conclude in the allocated time was pressed. There was then an outstanding report of Professor Wakefield, which was directed to be provided. Mr Sweeney then revealed that funding issues had arisen. On 20 August, it was reported to Adamson J that new counsel had not been identified and that while the matter had been prepared for hearing, funding issues were having an impact on Mr Wrzesinski's ability to call evidence and run the case the following week. On 21 August, the parties pursued the negotiations which led to the agreement now before the Court. 8. On 24 August, Mr Wrzesinski's application for approval of the agreement was made, in circumstances where there is no issue that Mr Wrzesinski suffers from a serious, chronic psychotic disorder for which he will require life long treatment. 9. Mr Sweeney's 24 August affidavit revealed the funding problems which had emerged, in circumstances where both Mr Wrzesinski and his mother are impecunious. The hearing would involve very significant additional expenses being incurred, including the expenses of experts, including those based in the UK and the USA and lay witnesses who reside interstate. 10. Mr Sweeney has given advice that if these problems can be addressed, the orders giving effect to the parties' agreement would pose no impediment to the pursuit, in other proceedings, of Mr Wrzesinski's claims, given his disability and the provisions of s 50F of the Limitation Act. While there is a limitation defence, which turns on the time that he contracted the disability he suffers, it was not in issue that the orders sought would not provide an obstacle to the further pursuit of Mr Wrzesinski's claims in other proceedings, or give rise to any additional issue under the Limitation Act. 11. Mr Sweeney has also advised that there is presently an intolerable risk that if the case proceeds, Mr Wrzesinski's claims will fail. In part, this turns on the controversy about the date that the vaccine was administered. Until 14 August, the Friday before the hearing was due to commence, both parties understood from their investigations, that records maintained under the Pharmaceutical Benefits Scheme were no longer available. That day it emerged that this could be incorrect, but further searches would require another four to eight weeks to be finalised. Mr Sweeney explained in his submissions that this record had the potential either to kill, or provide considerable support for Mr Wrzesinski's claims. 12. It had also emerged on 16 August that Professor Wakefield had provided answers to questions posed to the conclave of experts, which revealed that he had come to the view that Mr Wrzesinski's injuries had not been caused by the vaccine. In the result, only one of the four experts on causation, took the view that the vaccine could have caused his injuries. In the face of that development, on the available evidence, both parties agreed, his case was not strong and appeared bound to fail, if it were pressed without experts being available for cross-examination. 13. In her affidavit Mrs Wrzesinska explained that she had accepted Mr Sweeney's advice and, accordingly, asked the Court to make the orders sought. 14. Given all of these developments, it is apparent that while the quantum of Mr Wrzesinski's claim is very substantial, it is likely to fail, if now pressed. That would have the result that he would have to bear Dr Lukaszewicz's costs, which must be very considerable, given all that has been done to prepare the matter for hearing. Not the least of those expenses is the over 40 occasions that the matter has already come before the Court since it was commenced and the costs orders to date already made against Mr Wrzesinski. 15. In all of the circumstances, there can be no question, I am satisfied, that it is in Mr Wrzesinski's considerable interest for the parties' agreement to be given effect, by the making of the orders agreed. Orders 1. For these reasons, I order that: 1. The proceedings be dismissed. 2. There be no order as to costs. 3. All previous costs orders are discharged. ********** 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: 26 August 2015