Supreme Court New South Wales Medium Neutral Citation: Krisman v Central Coast Local Health District [2017] NSWSC 699 Hearing dates: 2 June 2017 Date of orders: 02 June 2017 Decision date: 02 June 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Settlement approved. Catchwords: PROCEDURE – settlement approval – orders made – reasons 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: Procedural and other rulings Parties: Samantha Mary Krisman (First Plaintiff) Craig McCartin (Second Defendant) Nathan McCartin (Third Defendant) Amy McCartin (Fourth Plaintiff) Central Coast Local Health District (First Defendant) Health Administration Corporation (NSW Health Pathology) (Second Defendant) Representation: Solicitors: Mr A Bingham, Peninsula Law (Plaintiffs) Mr H Black, Curwoods Lawyers (First and Second Defendants) File Number(s): 2016/360135 Publication restriction: None Judgment 1. I today approved a settlement of that part of the proceedings brought by Mrs Samantha Krisman, her husband, her son and daughter, which related to her daughter Amy under s 76 of the Civil Procedure Act 2005 (NSW). Ms Krisman is her 11 year old daughter's tutor in the proceedings. The section empowers the Court to give such approval, in cases where a person is under legal incapacity, as Amy is, given her age. 2. These are the reasons for that approval. 3. The settlement concerned a claim in negligence and under the Compensation to Relatives Act 1897 (NSW), brought against the Central Coast Local Health District, which operated Gosford Hospital and the Health Administration Corporation (NSW Health Pathology), which were both involved in the diagnosis and in the Hospital's case, treatment of Amy's older sister Kate. In October 2012 she was incorrectly diagnosed to be suffering a form of Non Hodgkin Lymphoma, for which she was treated, including by repeated chemotherapy, without success. 4. In September 2013 the misdiagnosis was identified when Kate was admitted to St Vincent's Hospital for a bone marrow transplant. She was then diagnosed to be suffering Acute Lymphoblastic Leukaemia. Despite treatment for her illness, she died in December 2013. 5. The application for approval was supported by affidavits sworn by Ms Krisman and by Mr Bingham, the plaintiffs' solicitor, who deposed that the advice of Mr Butcher of counsel who attended the conference at which settlement was reached, like Mr Bingham, was to recommend the settlement as being a fair and reasonable one in the circumstances. An explanation of the reasons for the advice which Mr Butcher had given, was provided by way of a confidential exhibit. 6. In her affidavit, Ms Krisman explained the circumstances which led to Kate's death, the relationship between Amy and Kate, the impact Kate's death had had upon Amy and the resulting difficulties she had to deal with and how the resulting expenses had been born and would be, in future. Having received legal advice, Ms Krisman, she considered that the settlement reflected adequate, if not significant compensation for the nervous shock injury which the evidence establishes Amy has been diagnosed to be suffering, particularly given some recent improvement in her condition 7. Various documents annexed to Ms Krisman and Mr Bingham's affidavits, corroborated aspects of their evidence, as did school reports which were also relied on. 8. 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. "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. 9. Having considered all that I have discussed, I was satisfied that the Court's approval of the settlement should be given. There was clearly a risk that Amy's case would not succeed, given all that is likely to be in issue, despite what was revealed by the evidence, if the case had to go to trial. 10. When that was considered together with what such a trial would involve, when compared to the obvious benefits which will flow to Amy from the proceeds of the settlement, reached as it has been at quite an early stage of these proceedings, I was satisfied that it had to be concluded that the settlement was beneficial to her and so should be approved by the Court ********** 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: 09 June 2017