Supreme Court New South Wales Medium Neutral Citation: Wallace by his tutor Phillis Wallace v Southern New South Wales Local Health District [2018] NSWSC 636 Hearing dates: 27 April 2018 Decision date: 27 April 2018 Jurisdiction: Common Law Before: McCallum J Decision: Consent Judgment approved; judgment for the plaintiff in the sum referred to in paragraph 1 of the Consent Judgment; defendant to pay the plaintiff's costs as agreed or assessed; defendant to pay to the plaintiff's parents, Mr Mathew Wallace and Mrs Phyllis Wallace, the sum of $220,000 from the settlement sum referred to in paragraph 1 of the Consent Judgment; defendant to pay into Court on the plaintiff's behalf pending further order the remainder of the settlement sum referred to in paragraph 1 of the Consent Judgment following the deduction of the statutory repayments referred to in paragraph 2 of the Consent Judgment and payment to the plaintiff's parents of the sum referred to in order 5. Catchwords: CIVIL LIABILITY – settlement of proceedings where plaintiff under legal incapacity – consideration whether to approve settlement Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76, 77(3) Category: Procedural and other rulings Parties: Lucas Wallace by his tutor Phillis Wallace (plaintiff) Southern New South Wales Local Health District (first defendant) Dr Peter Davis (second defendant) Representation: Counsel: D Higgs SC (plaintiff) H Allison (defendants) Solicitors: Stacks Goudkamp (plaintiff) Crown Solicitor's Office (defendants) File Number(s): 2014/251744 Publication restriction: None Judgment 1. HER HONOUR: This is an application under section 76 of the Civil Procedure Act 2005 (NSW) for the Court's approval of the settlement of proceedings brought by Mrs Phyllis Wallace as tutor of her son, Lucas Wallace. 2. The circumstances of the claim are extremely sad. Lucas was born suffering an acute hypoxic brain injury resulting in quadriplegic cerebral palsy and developmental delay allegedly as a result of the way in which the defendants managed Mrs Wallace's labour and Lucas's delivery. As submitted by Mr Higgs SC, who appears for the plaintiff, it is properly described as a case of "catastrophic injury". 3. The Court's approval is required under section 76 because, for obvious reasons, the plaintiff is a person under legal incapacity. 4. As commonly occurs in cases of this kind, approval of the settlement is presented primarily on the strength of a Confidential Memorandum of Advice from counsel for the plaintiff. Owing to the confidentiality of that material, it is appropriate to be circumspect in stating the reasons for giving my approval to the settlement. 5. It is enough to say that, having given careful consideration to the confidential advice which, in turn, endorses the contents of an earlier confidential advice prepared for the purposes of a mediation, and accepting the assurance of extremely experienced Senior Counsel appearing for the plaintiff that he recommends the settlement, I am satisfied that it is appropriate to approve the agreement the parties have reached as to the settlement of the plaintiff's claim. 6. One particular aspect of the agreement should be referred to. 7. The settlement contemplates that Mr and Mrs Wallace would immediately be paid, out of the settlement sum, an amount of $220,000. The basis for that agreement is explained in the affidavit of Ms Mahoney sworn 24 April 2018. Ms Mahoney states that the amount sought to be advanced directly to Mr and Mrs Wallace is intended to reflect the care they have provided to the plaintiff in the past and that the amount advanced would be applied towards discharging their debts in respect of the premises at which they live with and care for the plaintiff. 8. The material set out in the confidential advice amply supports the entitlement of the parents to receive a payment for past care. Indeed, as Mr Higgs has submitted this morning, it is clear that the plaintiff has enjoyed the highest measure of love and care from his parents. It is accordingly a payment appropriately made to them at some point. The question is whether the court should approve payment of that sum prior to payment into court of the judgment sum. 9. Section 77(3) of the Civil Procedure Act confers authority to make such an order. The exercise of that authority is discretionary. 10. Mr Higgs very properly drew my attention to the fact that there are mixed views in this court as to the appropriateness of ordering payments out of judgment sums to be paid to a trustee. If there were any doubt as to the parents' entitlement to the payment or as to the likelihood of its being paid by a trustee for their benefit in due course, one might pause to make the order sought. On the strength of the material I have read, I am satisfied that it is appropriate to exercise my discretion to give effect to that aspect of the settlement agreement now so as to provide for payment directly to Mr and Mrs Wallace of the sum of $220,000 from the settlement sum prior to payment into court of the balance of that sum, particularly where the payment is to be applied for the mutual benefit of the parents and Lucas. 11. For those reasons, I make orders 1-6 in the Short Minutes of Order handed up by Mr Higgs. ********** 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 May 2018