Supreme Court New South Wales Medium Neutral Citation: Porter v Le [2016] NSWSC 1164 Hearing dates: 19 August 2016 Date of orders: 22 August 2016 Decision date: 22 August 2016 Jurisdiction: Common Law Before: Harrison J Decision: (1) In accordance with s 76 of the Civil Procedure Act 2005 I approve the settlement of the proceedings in terms of the Judgment/Order which for identification I have initialled and placed with the papers. (2) Order that there be a verdict for the defendant with no order as to costs. (3) Note the agreement between the parties that the defendant will pay $250,000 to the solicitor for the plaintiff as a contribution to be applied exclusively for the discharge of disbursements incurred on the plaintiff's behalf. Catchwords: COMPROMISE – disable person – application by tutor for approval of settlement – settlement in best interests of disable person Category: Procedural and other rulings Parties: Arthur George Porter (Plaintiff) Phong Le (Defendant) Representation: Counsel: D E Graham SC & J Sandford (Plaintiff) M Windsor SC & J M Morris SC (Defendant) Solicitors: Carroll & O'Dea (Plaintiff) Norton Rose Fulbright (Defendant) File Number(s): 2007/265150 Publication restriction: Nil Judgment 1. HIS HONOUR: These proceedings have a relatively long history in this Court. They were ultimately listed for hearing due to commence on 22 August 2016 with an estimate of five weeks. Before that hearing commenced, I was asked to approve a settlement of the proceedings upon the basis of a verdict for the defendant with no order as to costs. The proposed settlement also incorporates an agreement between the parties providing for the payment by the defendant of $250,000 to be applied by the plaintiff's solicitor for the sole purpose of reimbursing the solicitor for disbursements paid on the plaintiff's behalf, but not otherwise to be applied for the payment of legal professional costs. 2. By reason of the sensitivity of certain disclosures and submissions directed to informing the reasonableness of the settlement, to which it was necessary for senior counsel retained by the plaintiff to refer, the application proceeded ex parte and in a closed court. The plaintiff read two affidavits respectively affirmed by Rebecca Tidswell and sworn by Barbara Mottershead on 19 August 2016. 3. The defendant is a general practitioner who prescribed Panafcort, a corticosteroid, to the plaintiff. The plaintiff alleges that the prescription of Panafcort at all and the dosage in particular were both inappropriate and unreasonable for the treatment of his presenting condition. The plaintiff alleges that it caused immunosuppression or that it impaired his immune capability and masked signs of infection. The plaintiff alleges that by reason of his compromised immune system, he was vulnerable to a community acquired Klebsiella pneumoniae that entered his blood and caused a severe septicaemia, including the development of cerebral infective emboli or abscesses. He also alleges that the Panafcort masked the symptoms and signs of the septicaemia. The plaintiff's status as a legally disabled person is directly related to the effects of these conditions and illnesses. 4. I have previously rejected a settlement of the proceedings: see Porter v Le [2010] NSWSC 998. I was not satisfied at that time that the settlement was in the best interests of the plaintiff. The only difference between the terms of the settlement as presently proposed and the one I originally rejected is that the defendant has now indicated his conditional agreement to contribute the amount of $250,000 towards the payment of disbursements. However, despite that relatively modest difference between the two proposals, there are now significant additional differences in the litigious balance that have emerged in the six years since my original decision, which satisfy me that the current proposal should be approved. 5. First, the plaintiff's investigations would now appear to have demonstrated that his case both on the issues of the defendant's legal liability for the plaintiff's loss and damage and upon the issue of proof that those losses have been caused by the defendant's negligence is weaker than it appeared both when the proceedings were commenced and when the first settlement proposal was rejected. Support for the proposition, propounded by the defendant, that the administration of Panafcort in the circumstances that prevailed at the relevant time, may well have been in accordance with what was at that time appropriate professional practice, would now appear to have emerged with some force. That opinion necessarily raises the spectre of a successful defence of the plaintiff's claim having regard to the provisions of s 5O of the Civil Liability Act 2002. 6. Secondly the plaintiff's case depends upon establishing that the onset of the Klebsiella infection occurred within a limited window or timeframe. The circumstances now suggest that the plaintiff may not be able to establish when or where he became infected by the relevant bacterium because there are potentially a series of possibilities, at least one or some of which do not support the critical date or range of dates for which the plaintiff has always contended. In short, there is a critical factual issue about whether the plaintiff acquired the infection in the community or only upon his admission to hospital. The date and the circumstances of infection are important aspects of the plaintiff's case on both breach of duty and causation. The plaintiff's legal representatives perceive that the prospects of establishing the date of infection at a time or in circumstances that support his case are slim. 7. Thirdly, even if the plaintiff were successful, the outcome may not be particularly beneficial to him and may result in the loss or reduction of certain benefits he currently enjoys. The risks of proceeding with the claim are therefore arguably outweighed by the benefits of compromising it. Ms Mottershead deposes relevantly to the following things: "10. I consider that the offer is in the best interests of the plaintiff. I do not think it is in his interests to pursue costly litigation that he does not have reasonable prospects of winning. Although the offer leaves him with nothing in circumstances where he needs so much care, assistance and services, he will retain his Aged Pension and Medicare as well as the contribution that the Department of Health makes towards his nursing home fees. I am aware that the contribution made by the Department of Health since December 2004 until June 2016 is in the region of $665,000. 11. It would not be in his interests to continue with these proceedings as even if he were to recover damages, his damages would be eroded by having to repay his private health insurer, Medicare, Centrelink and the Department of Health which I understand is in the region of $950,000. He may also be precluded from receiving the Aged Pension and the Department of Health contribution to his nursing home fees." 1. I have had the advantage of seeing this litigation develop over a number of years. It has been hard fought at all times. The proposed settlement is by no means the product of any lack of resolve or preparedness on the part of the plaintiff's legal representatives. On the contrary, save to the extent that they have had to come to terms with an unpleasant reality, the plaintiff's lawyers have obdurately but professionally advanced his cause at every available opportunity. The timing of the present application is a reflection of the maintenance of that highly commendable attitude to the very last, rather than the manifestation of some less commendable reason to discontinue the proceedings. 2. The principles that apply to this application are well known and require no restatement. In my view the proposal is beneficial to the plaintiff's interests and should be approved. 3. In the circumstances I make the following orders: 1. In accordance with s 76 of the Civil Procedure Act 2005 I approve the settlement of the proceedings in terms of the Judgment/Order which for identification I have initialled and placed with the papers. 2. Order that there be a verdict for the defendant with no order as to costs. 3. Note the agreement between the parties that the defendant will pay $250,000 to the solicitor for the plaintiff as a contribution to be applied exclusively for the discharge of disbursements incurred on the plaintiff's behalf. ********** 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: 23 August 2016