Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840

Supreme Court New South Wales

Medium Neutral Citation: Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840 Hearing dates: 29 November 2018 Date of orders: 29 November 2018 Decision date: 29 November 2018 Jurisdiction: Common Law Before: McCallum J Decision: Settlement approved Catchwords: CIVIL PROCEDURE – proceedings brought by person under legal incapacity – settlement of proceedings – Court approval Legislation Cited: Civil Procedure Act 2005 (NSW), s 76 Category: Procedural and other rulings Parties: Samuel Bacon by his tutor Sarah Rea (plaintiff) Western New South Wales District Health Service (first defendant) Craig Hearn (second defendant) Representation: Counsel: EG Romaniuk SC, S Maybury (plaintiff) R Sergi (defendants)

Solicitors: Stacks Goudcamp (plaintiff) Hicksons Lawyers (defendants) File Number(s): 2017/96372 Publication restriction: None

Judgment ex tempore – revised 1. HER HONOUR: These are proceedings brought by Samuel Bacon by his tutor, his mother, against Western New South Wales District Health Service as the entity responsible for the conduct of Mudgee Hospital and a visiting medical officer at that hospital. The claim is for damages for medical negligence arising out of the tragic circumstances of the birth of the plaintiff who, in short, suffered hypoxic brain injury during the birthing process. 2. Following a mediation, the parties have reached a compromise of the plaintiff's claim which requires the Court's approval if it is to become binding. Section 76(3) of the Civil Procedure Act 2005 (NSW) provides that any compromise or settlement of proceedings commenced by a person under legal incapacity may not proceed without the approval of the court. 3. The section itself does not provide elucidation of the content of the task of approving or disproving the settlement. However, it is well established by a number of authorities that the court's function is essentially protective. The Court is required to scrutinise the terms of the settlement for the purpose of protecting the interests of the person under legal capacity. Ultimately, the question is whether the settlement is beneficial to the interests of that person. 4. The present application is supported by an open affidavit sworn by Julie Ann Mahony, solicitor for the plaintiff, on 23 November 2018 and a confidential affidavit also sworn by Ms Mahoney, dated 29 November 2018. The open affidavit provides a brief summary of the plaintiff's claim and annexes a large amount of material consisting of the pleadings, the parties' liability reports and the parties' damages reports. 5. Ms Mahony states that the plaintiff was delivered by emergency caesarian section as he had, "a non-reassuring heart trace and meconium stained liver." He developed early onset respiratory distress, hypoglycemia, coagulopathy and thrombocytopenia. 6. The plaintiff alleges that the injuries and disabilities resulting from his birth were caused by a breach of duty of care on the part of both the hospital and the doctor in the manner in which his mother's labour and the delivery were managed. 7. However, there is revealed in medical material and reflected in the pleadings a dispute as to both the question of breach of duty of care and, perhaps more significantly, the question of causation of damage. 8. The medical material indicates that, in addition to the circumstances of the birth which deprived the plaintiff of oxygen for a period of time, there is a separate condition, which is genetic, which may have contributed to some of the plaintiff's injuries and disabilities. There is also a dispute as to the timing of the onset of the hypoxic brain injury, there being a suggestion in the defendant's medical evidence that it could have commenced significantly earlier than the time when the defendants assumed responsibility for the management of the birth. 9. For the purpose of the present approval the parties have waived confidentiality in that part of a mediation position paper provided by the plaintiff which sets out the damages claimed. In that circumstance, it can be disclosed that, for the purpose of the mediation, the plaintiff contended that he was entitled to a sum in excess of $13 million, plus funds management, consisting primarily of a very large component for future care, being an amount in excess of $10 million. Future out of pocket expenses also contribute a substantial amount to the claim. 10. The settlement proposed by the parties reflects a substantial compromise of that sum. Having regard to the confidentiality of the material provided to the Court in support of the application for approval of the settlement, it is appropriate for me to be circumspect in explaining my reasons for approving the settlement. It is enough to say that I have, as the authorities require, closely scrutinised the terms of the settlement by reference to the issues adverted to in the confidential advice by counsel. I am satisfied that this was a case in which it was appropriate for the plaintiff to accept a substantial compromise to the total amount claimed. The sum to be awarded is substantial and reflects the strengths of the plaintiff's claim, while the compromise reflects its potential weaknesses. 11. The tutor's affidavit satisfies me that she understands the issues she needs to understand in order to support the settlement. It also is relevant to have regard to the fact that the settlement is beneficial to the plaintiff for the additional reason that it will, apart from giving him and his tutor certainty, also mean that funds will be received now rather than after the hearing and final determination of the proceedings. That will have a benefit in enabling certain therapeutic treatment to be offered now, rather than later, or will at least facilitate that process. 12. For those reasons I am satisfied that the compromise is beneficial to the interests of the plaintiff and, accordingly, I approve the settlement.