Yu v Western Sydney Local Health District [2016] NSWSC 180

Supreme Court New South Wales

Medium Neutral Citation: Yu v Western Sydney Local Health District [2016] NSWSC 180 Hearing dates: 24 February 2016 Date of orders: 24 February 2016 Decision date: 24 February 2016 Jurisdiction: Common Law Before: Campbell J Decision: (1)I approve the parties' settlement of the plaintiff's application for an interim order under s 82 the Civil Procedure Act 2005 in the sum of $765,000; (2)Under s 77(2) of the Act, I direct that the sum of $765,000 is to be paid into court; (3)I grant liberty to apply on three days' notice in relation to any further order under s 77. Catchwords: PRODEDURE – Interlocutory proceedings – interim payments – agreed between the parties

TRUSTEE AND GUARDIANSHIP – conditions necessary to be satisfied before payment out of interim order – where conditions attach to NCAT order under Guardianship Act Legislation Cited: Civil Procedure Act 2005 (NSW) Guardianship Act 1987 (NSW) NSW Trustee and Guardianship Act 2009 (NSW) Category: Procedural and other rulings Parties: Charmaine Yu by her tutor Laurie Yu (Plaintiff) Western Sydney Local Health District (Defendant) Representation: Counsel: E G Romaniuk SC with T L Hickey (Plaintiff) A Bridges-Webb, Solicitor (Defendant) File Number(s): 2015/77086

EX TEMPORE JUDGMENT - Revised 1. I have for decision a notice of motion filed on behalf of the plaintiff on 10 December 2015 seeking an interim payment under s 82 of the Civil Procedure Act 2005 (NSW). Since that motion was filed, the parties have reached agreement, and the defendant is prepared to consent to payment of the sum of $765,000 by way of an interim payment as sought by the plaintiff. The remaining issue relates to the consideration that the plaintiff is a person under a legal incapacity for the purpose of the provisions of div 4 of the Civil Procedure Act and she proceeds by her tutor. 2. It is necessary to say a little about the background to the case to put it in context. But before I do so, I record that the parties are agreed that, because of the plaintiff's status, their "settlement" of the plaintiff's application for an interim payment is a "settlement of any matter in dispute in any proceedings" within the meaning of s 76(4) of the Act, and accordingly if the agreement is to be binding upon them, it requires the approval of the Court; that is the substance of the application today. 3. The plaintiff's claim is brought against the Western Sydney Local Health District for alleged negligence in the management of her post-operative care, following surgery to treat a subarachnoid haemorrhage which may have resulted from a rupture of a cerebral aneurism. 4. It is alleged in the statement of claim that the plaintiff was admitted to the defendant's Westmead Hospital emergency department on 1 December 2013 and underwent emergency surgery. She was treated in the intensive care unit until 10 January 2014, and her treatment had included the installation of a tracheotomy apparatus on 24 December 2013. She was then treated in the high dependency unit from 10 January 2014 to 1 February 2014, and admitted to a general ward after 1 February 2014. 5. On the affidavit evidence that has been read before me, the plaintiff's case appears to be that, after the commencement of her treatment in the general ward, she showed visible and objective signs of significant improvement from her cerebral accident, whatever the nature of it was. There are incidents pleaded of the occurrence of something in the nature of a mucosal plug blocking the tracheotomy apparatus on 4 and 6 February 2014. Then on 10 February a major blockage event occurred which resulted in the occurrence of what is sometimes referred to colloquially as brain death for a period of time, from which the plaintiff was able revived. 6. However, since that occurrence, she has remained in - again, using ordinary language - a comatose state in the hospital's high dependency unit. There is a dispute between the parties which will need to be resolved at any trial of the action about whether her state is in fact vegetative. 7. The plaintiff's case, I record, is that it is not, and that evidence will be led at the trial that she has an awareness of the attention that she receives, especially, no doubt, from her parents and her brother. 8. There is a very significant dispute about liability at a number of levels. The defendant disputes that the plaintiff was making the progress asserted between the surgery on 1 December and the events of 10 February 2014. The defendant very strongly contests the averment that the event which occurred on 10 February 2014 resulted from negligence in the hospital's management of the plaintiff's care. There are disputes, as I have said, in relation to damages. 9. I accept what Mr Romaniuk of Senior Counsel, who appears with Mr Hickey for the plaintiff, says, that if every allegation advanced on behalf of the plaintiff is made good, damages are likely to be assessed in the vicinity of $16 million. However, it seems to me that it is unnecessary for me to determine or make any assessment of the factors relevant to a decision under s 82, given the defendant's consent to the payment as claimed by the plaintiff, notwithstanding its strong denial of liability. 10. As a practical matter, I think I should record that the evidence before me shows, and I think the defendant accepts this much, that the continued treatment of the plaintiff in the high dependency unit at the hospital is not really a viable option. Her condition is not such that she requires the kind of acute care that that unit provides, and even a large teaching public hospital has no proper facility for maintaining a patient with the plaintiff's catastrophic, chronic disabilities. 11. The proposal is that the plaintiff's parents' home be extended by the construction of what is effectively a purpose built wing for the plaintiff's accommodation in a suitable facility. Although I have not received his report in evidence, I am informed without objection that the costing of the construction of that facility at the plaintiff's parents' home has been fully assessed by a professional architect, Mr Hynes, and that the figure of $765,000 includes all necessary charges and fees in addition to the cost of building. Those fees extend to the fees payable upon the lodgment of a development application, and as I understand it, an architect's fees for project managing the construction. Mr Hynes has estimated that the construction will take about 12 months, and of course the plaintiff will not be able to move into the premises until they are completed. 12. Mr Romaniuk informs me that, at that point, the proposal would be to make an application for a further interim payment to fund the necessary care regime, if the matter it is not otherwise resolved prior thereto. 13. I have no difficulty in the circumstances explained to me and as outlined by learned Senior Counsel in approving the settlement of this matter, previously in dispute, in accordance with the terms of s 76 of the Act. The real difficulty relates to what happens next. 14. The tutor, Mr Laurie Yu, is the plaintiff's brother. Like the plaintiff, he was raised and educated in Australia, and he is a graduate of the University of Technology. He is admitted to practice as a solicitor of this Court. He is undoubtedly a suitable person to be appointed a tutor in relation to his sister's proceedings. 15. From his affidavit and the supplementary affidavit of Ms Mahoney, the plaintiff's solicitor, I find that he has also been appointed the financial manager of his sister's estate by an order made by the Civil and Administrative Tribunal on 7 April 2014 under the Guardianship Act 1987 (NSW). A complexity arises from a note which doubtless reflects the terms of the NSW Trustee and Guardianship Act 2009 (NSW) that, as financial manager, he is not authorised to deal with the estate, other than to protect the assets until he has obtained all necessary authority from the New South Wales Trustee and Guardian. There is no evidence that he has had previously any need to deal with his sister's estate, nor is there any evidence that he has obtained the authorities referred to, and with respect, the legal representatives of the parties were not able to inform me as to what those necessary authorities might be, what the procedure for obtaining them is, and how long it might take. 16. As I discussed with Mr Romaniuk, I am not satisfied that I am in a position to make any orders for payment out until satisfied about what the necessary authorities are, that they could be obtained by Mr Yu, and that those authorities would permit him to administer the interim payment on behalf of his sister to bring the proposal for her accommodation to fruition. 17. Mr Yu also says that he is currently, and has been for some years practicing overseas. He is now in Hong Kong, although he returns to Australia every six weeks to visit his family and to attend to his sister's needs. It seems to me that there would have to be a definite proposal for the deposit of the interim payment into an Australian controlled money account with one of the big four banks. 18. Whilst all these matters are unresolved, I consider it inappropriate that I should make any consequential order in relation to the settlement I have approved. As I say, nothing I have said implies any criticism of the parties, and it may be, in the end, once these outstanding matters have been enquired into, that the appropriate course will be to make a separate application for an order under the New South Wales Trustee and Guardian Act for the appointment of Mr Yu as the manager of his sister's estate, rather than the financial manager under the Guardianship Act. Such an application would need to proceed in the protective list in the Equity Division, probably before Lindsay J. 19. In all these circumstances, I asked the parties whether there is any point requiring the payment of the amount approved into court. Mr Bridges-Webb, Solicitor, who appears for the defendant, has informed me that the hospital is "insured" by the Treasury Managed Fund, the claim has been estimated, and the moneys set aside. Essentially, the moneys set aside are public money, and there is no foreseeable risk to the financial health of the State of New South Wales. It therefore could be said that perhaps the money could remain where it is. On the other hand, I have been persuaded by Mr Romaniuk that an order for payment into court in effect perfects the order approving this settlement and "earmarks" the money. The money should remain in court pending a further application in relation to payment out, once all loose ends are tied up. 20. For these reasons I make the following orders: 1. I approve the parties' settlement of the plaintiff's application for an interim order under s 82 the Civil Procedure Act 2005 in the sum of $765,000; 2. Under s 77(2) of the Act, I direct that the sum of $765,000 is to be paid into court; 3. I grant liberty to apply on three days' notice in relation to any further order under s 77.