Daley v Posel [2016] NSWSC 1739

Supreme Court New South Wales

Medium Neutral Citation: Daley v Posel [2016] NSWSC 1739 Hearing dates: 6 December 2016 Date of orders: 07 December 2016 Decision date: 07 December 2016 Jurisdiction: Common Law Before: Schmidt J Decision: The settlement is approved by the Court Catchwords: PROCEDURE – settlement approval – orders made Legislation Cited: Civil Procedure Act 2005 (NSW) Compensation to Relatives Act 1897 (NSW) Cases Cited: Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357 Category: Consequential orders (other than Costs) Parties: Amanda Daley (First Plaintiff) Evan John Daley (Second Plaintiff) Isaac Duncan-Daley (Third Plaintiff) Dr Daniel Posel (First Defendant) Dr Paul Stalley (Second Defendant) Representation: Counsel: Mr PK Andrews (Third Plaintiff)

Solicitors: Virginia Hart Medical Lawyers (Plaintiffs) HWL Ebsworth Lawyers (First Defendant) Avant Law Pty Limited (Second Defendant) File Number(s): 2013/00153889 Publication restriction: Nil

Judgment 1. Approval is sought of part of a settlement of proceedings brought by Ms Daley, her son and grandson. Section 76 of the Civil Procedure Act 2005 (NSW) empowers the Court to give such approval, in cases where a person is under legal incapacity, as her grandson is, it is common ground, given his age. 2. The settlement concerns a complex dispute over claims brought in negligence following the death of Ms Daley's husband, a retired school teacher, who together with her stood in loco parentis of their grandson, following the death of his parents in a car accident. Claims under the Compensation to Relatives Act 1897 (NSW) were also advanced. 3. Mr Daley's death followed surgery in 2008. He had first been treated for pain in his shoulder in 1991, when he underwent a bone scan. Pain recurred in 2006 when he underwent further investigation, with X-ray and ultrasound examination revealing certain abnormalities. Symptoms returned after treatment and further investigations then followed. A frozen shoulder was diagnosed, and after worsening pain, an attempt to manipulate the shoulder during surgery was made, but the head of his humerus fractured. 4. Further examination led to the discovery of a tumour and consideration of amputation, or further surgical treatment. Limb sparing surgery was pursued. There was, in 2008, further surgery following recurrence and spread of the cancer, including to the spine. Death ensued. 5. The issues laying between the parties went to liability and causation in light of diagnosis and treatment, as well as in relation to damages. 6. The application for approval was supported by affidavits sworn by Ms Daley as her grandson's tutor and by Ms Hart, the plaintiff's solicitor, to which was attached the advice of Mr Andrews of counsel who recommended the settlement, as well as various expert's reports. 7. In her affidavit, Ms Daley explained the circumstances in which the settlement which she outlined was arrived at, following a failed mediation and ongoing negotiations between the parties, which resulted in the acceptance of the settlement and the allocation amongst the plaintiffs recommended by the plaintiffs' solicitor and counsel. Ms Daley also deposed to her view that the settlement was in her grandson's best interests; that she and he were happy with the settlement; that a small sum would have to be deducted from her grandson's settlement for Medicare expenses; that she had agreed to bear his legal expenses; and that they understood that the settlement would have to be paid to the NSW Trustee & Guardian who already managed a trust fund on her grandson's behalf, following his parents' death. 8. In submissions, Mr Andrews explained the nature of the differences of opinion between the various medical and other experts retained by the parties. The resulting issues lying between the parties included whether there should have been differing investigation and treatment of Mr Daley's shoulder pain, given normal and competent clinical practices at the relevant times; and the possibility and consequences of earlier diagnosis and treatment of the tumour; and the consequences of the fracturing of the humerus in leading to the spread of the cancer. There were also issues arising from Mr Daley's retirement from and resumption of teaching before his death and the consequences of injuries earlier suffered by his grandson, following the death of his parents. These were matters addressed in Mr Andrew's confidential advice. 9. There, Mr Andrews explained the basis for his advice that the settlement arrived at was a reasonable one. I consider that advice to have a proper basis, in all of the circumstances there discussed. 10. As explained by Rothman J in Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357 at [29], the Court's jurisdiction to approve a settlement is protective and "the overriding principle is that the Court will base the approval or disapproval upon the formation of an opinion that the agreement is or is not beneficial to the interests of the person under the incapacity". That is a matter for the Court to determine. 11. Having considered all that I have discussed, I am satisfied that the Court's approval of the settlement should be given. There is here a significant risk that the plaintiffs will not succeed on all that is in issue at trial. When that is considered together with what such a trial would involve, when compared to the obvious benefits which will flow to the grandson from the proceeds of the settlement, I am satisfied that it must be concluded that the settlement is beneficial to him and so should be approved by the Court.