de Bruin by his tutor Lorinda de Bruin v Central Coast Local Health District [2018] NSWSC 1841

Supreme Court New South Wales

Medium Neutral Citation: de Bruin by his tutor Lorinda de Bruin v Central Coast Local Health District [2018] NSWSC 1841 Hearing dates: 30 November 2018 Date of orders: 30 November 2018 Decision date: 30 November 2018 Jurisdiction: Common Law Before: McCallum J Decision: Settlement approved Catchwords: CIVIL LIABILITY – proceedings brought by a person under legal incapacity – consideration whether to approve settlement Legislation Cited: Civil Procedure Act 2005 (NSW), s 76 Category: Procedural and other rulings Parties: Zef de Bruin by his tutor Lorinda de Bruin (plaintiff) Central Coast Local Health District (defendant) Representation: Counsel: H Chiu (plaintiff) SM Kettle (defendant) J Harrison (appearing as amicus curiae for the National Disability Insurance Authority)

Solicitors: Slater and Gordon Lawyers (plaintiff) Hicksons Lawyers (defendant) File Number(s): 2016/183593 Publication restriction: None

Judgment ex tempore – revised 1. HER HONOUR: These are proceedings for damages for medical negligence arising from the treatment of the plaintiff when he was eleven months old. He was taken to Gosford Hospital at that time presenting with certain symptoms. The claim arises from the fact that he was discharged from the hospital and was subsequently diagnosed with pneumococcal meningitis, as a result of which he has suffered from severe injuries and ongoing disabilities. 2. The parties have settled the proceedings in principle at mediation subject to the approval of the Court. The matter is before the Court today for that purpose. 3. Section 76 of the Civil Procedure Act 2005 (NSW) provides that, in the case of a person under legal incapacity there may not be any compromise or settlement of the proceedings without the Court's approval. Subsection 4 provides that if, a settlement agreement is reached in such a case, the Court may approve or disapprove the agreement. While little content is articulated as to the principles that would apply to that task within the section itself, it is well-established that the Court's function is essentially protective. The task for the Court is to scrutinise the terms of the settlement or compromise to protect the interests of the person under legal incapacity. The Court should, before giving its approval to a settlement, be affirmatively satisfied that the settlement is for the benefit of the person under incapacity. The consequence of the Court disapproving a settlement is that the parties are not bound by it. 4. Both parties today support the settlement and seek the Court's approval of it. 5. In addition, the Court has heard (with leave) from Mr Harrison appearing as a friend of the Court on behalf of the National Disability Insurance Authority (NDIA). Mr Harrison has helpfully explained aspects of the mechanism by which the NDIA is to be compensated out of the settlement and also explained an important matter concerning the likely future benefits available to the plaintiff under that scheme. I have had regard to what Mr Harrison has told me and the parties' response to that information. 6. Making all assumptions in favour of the plaintiff, the maximum claim his legal representatives contend he might be entitled to after a contested hearing and succeeding on all issues would exceed $11 million. There is before the Court, as is customary in such applications, a confidential advice prepared by Mr Chiu of counsel for the purpose of the approval hearing. It is a shame that the advice must remain confidential because it is a model of its kind. Mr Chiu's advice is extremely helpful to the court, providing careful detail as to both the factual and legal issues on the strength of which he advises the plaintiff to accept the settlement and seek the Court's approval of it. 7. For obvious reasons, it is not appropriate to descend to the detail of the advice, save to say, as is obvious from the pleadings, that the case was one in which there were issues as to liability, causation of damage and quantum, the resolution of which warranted compromise in the measure reflected in the settlement that has been reached. Mr Chiu's confidential advice has persuaded me that the settlement is for the benefit of the plaintiff and that I should approve it. 8. One further matter relevant to the Court's approval (leaving aside the assessment of the benefit of compromising the risk of success or lack of success on individual issues in the proceedings) is the obvious fact that a settlement achieves a situation where a plaintiff will receive much needed funds immediately rather than abiding the process of a contested hearing and a reserved judgment. In the present case, having regard to the youth and needs of the plaintiff, that will be a real medical benefit for him and that is an additional reason for concluding that the settlement is beneficial to him. 9. For those reasons, I make orders 1 to 5 in the short minutes of order, which have been signed by the parties and which I will also now sign.