Supreme Court New South Wales Medium Neutral Citation: Hendi v Commonwealth of Australia (No 3) [2018] NSWSC 1846 Hearing dates: 3 December 2018 Decision date: 03 December 2018 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph [36] Catchwords: CIVIL PROCEDURE – claim by minor – settlement – court approval – claim in negligence against Commonwealth for time in detention centres – substantial issues of breach and causation – settlement in interests of minors – settlements approved Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76, 77 Migration Act 1958 (Cth), s 189 Uniform Civil Procedure Rules 2005 (NSW), r 42.34 Cases Cited: Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1; [1986] HCA 3 Category: Principal judgment Parties: Asrin Hendi by her Tutor Hamed Hendi (2014/68193)(Plaintiff) Amir Hendi by his Tutor Hamed Hendi (2014/68203) (Plaintiff) Nasrin Ghasemi (2014/68216) (Plaintiff) Hamed Hendi (2014/68211) (Plaintiff) Commonwealth of Australia (Defendant) Serco Australia Pty Limited (First Cross-Defendant) International Health and Medical Services Pty Limited (Second Cross-Defendant) Representation: Counsel: R Royle (Plaintiffs) R Williams QC (Defendant) C Gill, solicitor (First Cross-Defendant) S Bainat, solicitor (Second Cross-Defendant) Solicitors: Shine Lawyers (Plaintiffs) Australian Government Solicitor (Defendant) HWL Ebsworth Lawyers (First Cross-Defendant) Moray & Agnew Lawyers (Second Cross-Defendant) File Number(s): 2014/68203; 2014/68211; 2014/68216; 2014/68193 Publication restriction: None Judgment Introduction 1. The parties have applied to the Court for approval of the settlement of the claims by Amir Hendi (Amir) and Asrin Hendi (Asrin). Amir, who was born in 2002, is currently 16 years of age and Asrin, who was born in 2007, is currently 11 years of age. As both Amir and Asrin are minors, the Court's approval is required by reason of s 76 of the Civil Procedure Act 2005 (NSW). 2. The proposed settlements are: 1. In respect of Amir, judgment for the plaintiff in the sum of $50,000 plus costs and disbursements as agreed in the sum of $30,826.50. 2. In respect of Asrin, that there be judgment for the defendant (the Commonwealth) but that Asrin be paid, pursuant to a deed between Mr Hendi as tutor for Asrin, the Commonwealth and the two cross-defendants, an agreed amount plus costs and disbursements in an agreed sum. The amount of these sums is confidential but has been disclosed to the Court for the purposes of the application for approval. These agreed sums are to be paid by the cross-defendants, International Health and Medical Services Pty Limited (IHMS) and Serco Australia Pty Ltd (Serco). 1. The Court's function in deciding whether to approve a settlement is essentially protective. The Court is required to determine whether the settlement is in the interests of the person who is under a legal incapacity. This assessment requires a consideration of the prospects of the plaintiff obtaining a judgment which is more favourable than the agreed sum, which is to be weighed against the benefits of a certain outcome. 2. I was provided, in advance of the hearing, with the material relied upon in support of the application for approval, including a confidential opinion provided by Richard Royle, counsel for the plaintiffs. The recitation of facts set out below is either, in the case of the dates and places of detention, uncontroversial or derived from the histories given to various psychiatric and psychological experts which are recorded in reports served on behalf of the plaintiffs in the proceedings. The relevant material is annexed to the affidavits of Michael Inger, the plaintiffs' solicitor, or referred to in Mr Royle's opinion. Background facts 1. Amir and Asrin were both born in Iran. In 2005, Hamed Hendi, their father, was attacked and stabbed by paramilitary militia, as a consequence of which 30cm of his bowel was removed. Mr Hendi lived in fear of imprisonment, torture and death. It is likely that the psychiatric harm caused to their father affected Amir and Asrin. At some time prior to 2010, Mr Hendi left the family home to go into hiding in Iran. 2. In about 2010, when Amir was 7 and Asrin was 2, Mr Hendi and his wife, Nasrin Ghasemi, decided to travel with their children to Australia from Iran via Indonesia. They intended to apply for refugee status on arrival in Australia. When the boat on which the family was travelling from Indonesia became lost at sea, the family, who lacked food and water, feared for their lives. It is likely that the plaintiffs were psychiatrically affected by this experience. 3. On 15 June 2010 (by which time Amir had turned eight and Asrin was two years, six months) the boat on which the family was travelling was intercepted by an Australian Border Protection vessel. This vessel transported the passengers, including the plaintiffs, to Christmas Island, where they were lawfully detained pursuant to s 189 of the Migration Act 1958 (Cth). 4. The plaintiffs remained in immigration detention in the following places (the Centres) for a total period of about nine months: 1. 18 June to 5 August 2010 in a camp on Christmas Island; 2. 5 August to 18 December 2010 in Asti Motel in the Northern Territory; and 3. 18 December 2010 to 7 March 2011 in Inverbrackie, a detention centre, near Adelaide in South Australia. 1. On 29 December 2010, Cathy Sarles, a medical officer at Inverbrackie, assessed Amir and Asrin and noted symptoms of psychological impairment. She recommended that they receive psychiatric treatment. In February 2011, Amir and Asrin began treatment with Dr Jureidini, a child psychiatrist, at the Women's and Children's Hospital in Adelaide. Dr Jureidini recommended that the family be transferred out of Inverbrackie and placed in the community. On 7 March 2011 the family was placed into the community pursuant to residence determination. On 20 July 2011 they were granted protection visas. No part of their claims relates to the period after 7 March 2011 when they were released from detention. The plaintiffs' claims and the evidence in support of their allegations 1. Amir, Asrin and their parents (the plaintiffs) have each brought claims against the Commonwealth, which were ordered to be heard together in this Court. The proceedings are 2014/68211 (Hamed Hendi); 2014/68216 (Nasrin Ghasemi); 2014/68203 (Amir Hendi); and 2014/68193 (Asrin Hendi). 2. The Commonwealth filed two cross-claims: the first against Serco, which had agreed to manage and control the Centres; and the second against IHMS, which had agreed to provide medical services at the Centres. In each of the cross-claims the Commonwealth claimed contribution and indemnity from the cross-defendant. 3. The plaintiffs allege that the Commonwealth owed them a non-delegable duty of care whilst they were detained in the Centres and that it breached its duty of care by failing to provide adequate medical assessments, care and treatment; failing to prevent exposure to traumatic events; and failing to remove them from immigration detention once it was clear the family was suffering from mental harm caused by the detention. 4. The plaintiffs relied, in support of their allegations of negligence, on the Commonwealth's immigration detention standards which relevantly provide: "8.3.1 The care needs of each new detainee are identified by qualified medical personnel as soon as possible after being taken into detention. The medical officer has regard not only to the detainee's physical and mental health but also the safety and welfare of other detainees, visitors and staff. 8.3.2 Detainees who require specialist treatment are referred or transferred to specialist institutions or to community hospitals. 8.3.3 The care needs of each detainee are regularly monitored. 8.3.4 All detainees are provided with necessary medical or other healthcare when required …" 1. The plaintiffs' case is that each family member was exposed to numerous psychiatric stressors while in detention. The allegations include that they witnessed detainees engaging in self-harm and attempting suicides as well as physical fights between groups of detainees and between detainees and guards. It is also alleged that they suffered uncertainty as to their future because they did not know whether, or when, the family would granted a protection visa and allowed into the Australian community. It is also alleged that Amir and Asrin suffered from being in relatively harsh conditions where there was little intellectual stimulation for children, diversionary entertainment, or normal childhood interaction. It is also alleged that Amir and Asrin suffered from their parents' stress. 2. It is alleged on behalf of Amir and Asrin that these psychiatric stressors created a foreseeable risk of injury, about which the Commonwealth knew or ought to have known, and in respect of which the Commonwealth owed them a duty to take reasonable steps to mitigate or prevent. 3. The plaintiffs' case was, in part, founded on the reports of Dr Allnutt dated 9 August 2013 and 17 October 2014. In these reports Dr Allnutt opined that the minimum, reasonable level of medical care that the Commonwealth ought to have provided included the following. The Commonwealth ought to have provided a health assessment and treatment program implemented by a psychiatrist or clinical psychologist. Such a program should have included a screening process for psychiatric conditions and a designated area for vulnerable and mentally ill detainees staffed by mental health practitioners with regular visits by qualified psychiatrists. Dr Allnutt opined that a comprehensive baseline mental health assessment was required when the children entered immigration detention and that there should have been an urgent mental health assessment by a psychiatrist or clinical psychologist as well as a follow-up, if the children were found to be particularly affected. 4. Although the reports of Dr Allnutt addressed the lack of medical treatment provided to Mr Hendi, the reports were also relied on in the cases brought on behalf of Amir and Asrin. 5. Amir and Asrin relied on the opinion of Dr Jureidini, treating psychiatrist, who considered that their mental states should have been monitored by an expert child psychiatrist or psychologist, at least from 29 December 2010 when Dr Sarles noted symptoms of psychiatric impairment. Dr Jureidini considered that Amir and Asrin's psychiatric disturbance was, at that time, "plainly evident and warranted much more aggressive treatment than was offered". Dr Jureidini accepted that Dr Sarles' assessment set in train a process whereby appropriate diagnostic assessment was eventually made by the psychiatric team (which included Dr Jureidini) at the Women's and Children's Hospital in Adelaide. 6. On the question of causation, Dr Jureidini concluded that: "As with Asrin, it can be predicted that if the family had been immediately made to feel safer in January 2011 by being given a house to themselves in Inverbrackie, had been moved into community detention in a more timely manner, had better access to child psychiatry services in the meantime, and had been offered expert sustained child and family psychiatry [sic] care once they did get into the community, outcomes would have been significantly better for Amir." 1. The reports served by the Commonwealth and the cross-defendants, were also relied on to some extent by Amir and Asrin. For example, Dr Anthony Milch, psychiatrist, agreed with Dr Jureidini that Amir required a safe and secure environment to enable resolution of symptoms "given his experience of 'misery' in the camps". 2. Dr Apler, who was retained by IHMS's solicitors, acknowledged that parents play an important role in helping to manage a child's distress, and Amir and Asrin's parents were, because of their own mental distress, unable to provide comfort and stability to their children. Consideration 1. When addressing the claims made by Amir and Asrin, it is convenient to deal with them together, because of the extent of the overlap between them. The quantum of damages will be addressed separately. Negligence 1. The Commonwealth is required only to act reasonably. As referred to above, the family was transferred to Inverbrackie on 18 December 2010, Dr Sarles' assessment took place on 29 December 2010 and Dr Jureidini started treating Amir in February 2011. The family was transferred to community detention in March 2011. Were the matter to be determined at final hearing, there would be a question about whether reasonable care required treatment to be provided and relocation to occur within a shorter period and, if so, whether treatment and relocation within a shorter period would have made any difference. I note that Dr Milch did not consider the delay in provision of therapeutic treatment (to Asrin) to be unreasonable. Accordingly there is a real question whether the Commonwealth would have been found liable had the proceedings not resolved. Causation 1. The measure of damages in tort is the amount of money required to put the plaintiff in the position he or she would have been had the tort not been committed: Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1 at 12-13 (Mason, Wilson and Dawson JJ); [1986] HCA 3. The forensic task of proving, on the balance of probabilities, that Amir and Asrin would have been in a better psychological state if the Commonwealth had acted more promptly to remove them from detention and provide them with appropriate psychiatric treatment and care would be a difficult one, having regard to the other non-compensable causes of their psychiatric distress. Moreover, in the terms of all of the psychiatric traumas to which both children were subjected, the period of their detention was relatively short. 2. There is also a further issue relating to the children's post-detention circumstances. Dr Roberts, psychologist, noted that following release in to the community Amir "has not had a great deal of best evidence treatment apart from a few sessions with John Woodhouse under a better mental health care plan." He did have some treatment from a psychologist at STARTTS and the treatment provided was considered to be reasonable and necessary. As referred to above, no allegation of negligence is made in respect of the post-detention period. Damages: Amir 1. Following an assessment of Amir in July 2016, Dr Roberts, in a report dated 3 November 2016 (which was referred to in Mr Royle's opinion) opined that, although Amir suffered from a generalised anxiety disorder and separation anxiety disorder, he did not meet the criteria for Post-Traumatic Stress Disorder (PTSD). She accepted that there were pre-existing factors originating from experiences in Iran. 2. Dr Apler assessed Amir on 26 July 2017 at the request of the solicitors for IHMS. In a report dated 14 August 2017, Dr Apler found Amir to be "anxious and sad" but considered that the detention itself would have had only a "mild and transient" effect on Amir's symptoms. Dr Apler diagnosed PTSD with depression, but considered that the condition did not affect his education or his future earning capacity as he continued to do well at school. He considered that adequate treatment of his mother's depressive symptoms would improve Amir's prognosis. 3. In his confidential opinion, Mr Royle has provided a range of damages in respect of Amir. The amount proposed for the settlement of Amir's claim is within the range set out in Mr Royle's confidential opinion. Damages: Asrin 1. At the request of the plaintiffs' solicitors, Dr Roberts assessed Asrin in September 2013. In her report of 10 March 2014, Dr Roberts made diagnoses of separation anxiety disorder and PTSD. She opined that separation anxiety had its origin in Mr Hendi's separation from the family while he was in hiding in Iran. Dr Roberts opined that treatment after release from detention was reasonable and necessary. 2. At the request of the Commonwealth's solicitors, Dr Milch assessed Asrin in August 2015. In a report dated 7 September 2015, Dr Milch diagnosed adjustment disorder with anxious mood in the context of Asrin's exposure to ongoing parental conflict. Dr Milch considered that Asrin had previously suffered from separation anxiety disorder and PTSD. Dr Milch opined that, although Asrin had appropriate therapeutic intervention, her prognosis following the experiences of separation and loss was poor. 3. Dr Apler, in his report of 14 August 2017, noted the significant psychiatric condition of the parents which have had a strong effect on Asrin's anxiety symptoms. He diagnosed "separation anxiety disorder, now resolved". He noted that Asrin was progressing in her studies, appears to have made friends at school and that it was unlikely that the educational, social and recreational activities were affected. He concluded: "[Asrin's] separation anxiety improved and this has a good prognosis. The prognosis for her adjustment disorder depends on the management of the emotional problems affecting her parents". 1. In his confidential opinion, Mr Royle has provided a range of damages in respect of Asrin. The amount proposed for the settlement of Asrin's claim is within the range set out in Mr Royle's confidential opinion. Other matters 1. It is also necessary to take into account the inevitable disparity between the costs recovered by a successful plaintiff and those for which the plaintiff will be liable to his or her solicitors. The plaintiffs' cases have been listed for hearing with an estimate of six to eight weeks. It follows from the Commonwealth's acceptance that the plaintiffs should not be penalised in terms of costs by reason of the matter being heard in the Supreme Court, that the costs penalty provisions set out in Uniform Civil Procedure Rules 2005 (NSW), r 42.34 would not apply. The costs of a six-week trial would be substantial. It is not certain that the plaintiffs would be successful but, even if they were, they would still be liable to pay their solicitors the disparity between costs on the ordinary basis and costs on the higher basis (as between solicitor and client), subject to any agreement to the contrary. Conclusion 1. I am satisfied that the settlement is in the interests of both Amir and Asrin Hendi. The settlement sums in each case reflect a fair compromise on the full value of their claims based on the risks of establishing liability, the conflicting opinions as to the extent of any disability caused by the alleged breaches and the commercial viability of litigating a case of this nature. The settlement sums will enable both plaintiffs to obtain some psychiatric and psychological treatment and will provide a modest fund for their futures. The funds may also help them, in future years, to come to terms with the traumatic experiences they suffered and witnessed in detention centres operated by the Commonwealth, irrespective of whether the Commonwealth's conduct would, had the matter not been resolved, have been found to amount to actionable negligence sounding in damages. 2. For completeness I set out at the conclusion of these reasons the orders made in proceedings brought by Mr Hendi and Ms Ghasemi, although my approval is not required for those orders, which are made by consent. Orders 1. For the reasons set out above, I make the following orders: In proceedings 2014/68203 (Amir Hendi) 1. Approve the settlement of the proceedings pursuant to s 76 of the Civil Procedure Act 2005 (NSW) on the basis of orders (2) and (3). 2. By consent, judgment for the plaintiff in the sum of $50,000 (the judgment sum) plus costs as agreed in the sum of $30,826.50 inclusive of GST, such costs to be paid directly to the plaintiff's solicitors. 3. By consent, judgment for the cross-claimant against the first cross-defendant in the sum of $10,000 with no order as to costs. 4. By consent, judgment for the cross-claimant against the second cross-defendant in the sum of $15,000 with no order as to costs. 5. By consent, all prior costs orders are vacated. 6. Order, pursuant to s 77(3)(a) of the Civil Procedure Act, that the judgment sum be paid to the NSW Trustee and Guardian. In proceedings 2014/68193 (Asrin Hendi) 1. Approve the settlement of the proceedings pursuant to s 76 of the Civil Procedure Act 2005 (NSW) on the basis of orders (2) and (3). 2. By consent, order judgment for the defendant. 3. By consent, dismiss the first and second cross-claims. 4. By consent, make no order as to costs and vacate all prior costs orders. 5. Order, pursuant to s 77(3)(a) of the Civil Procedure Act, that the monies required by cl 3.1.1 of the Deed of Settlement (which is annexed and marked "A" to the affidavit of Michael Inger sworn 30 November 2018) to be paid into Court, be paid directly to the NSW Trustee and Guardian. In proceedings 2014/68216 (Nasrin Ghasemi) BY CONSENT: 1. Judgment for the plaintiff against the defendant in the sum of $50,000. 2. The defendant is to pay the plaintiff's costs as agreed in the sum of $29,579.69 inclusive of GST. 3. Judgment for the cross-claimant against the first cross-defendant in the sum of $10,000 with no order as to costs. 4. Judgment for the cross-claimant against the second cross-defendant in the sum of $15,000 with no order as to costs. 5. All prior costs orders are vacated. In proceedings 2014/68211 (Hamed Hendi) BY CONSENT: 1. Judgment for the defendant against the plaintiff with no order as to costs. 2. The first cross-claim against the first cross-defendant is dismissed with no order as to costs. 3. The second cross-claim against the second cross-defendant is dismissed with no order as to costs. 4. All prior costs orders are vacated. ********** 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: 03 December 2018