Supreme Court New South Wales Medium Neutral Citation: Warren v Northern Sydney Local Health District [2019] NSWSC 1350 Hearing dates: 4 October 2019 Date of orders: 04 October 2019 Decision date: 04 October 2019 Jurisdiction: Common Law Before: Adamson J Decision: (1) Pursuant to s 76 of the Civil Procedure Act 2005 (NSW), approve the settlement reached by the parties on 5 September 2019, which is set out in the document entitled "Consent Judgment" which is annexure "A" to the affidavit of Patrick John Heath sworn 28 September 2019. (2) Judgment for the plaintiff in the sum of xxxxxx (the judgment sum) plus costs as agreed at $200,000. (3) Order the judgment sum to be paid into Court, net of any statutory deductions. Catchwords: CIVIL PROCEDURE – approval of settlement pursuant to s 76 of Civil Procedure Act 2005 (NSW) – substantial issues regarding causation – settlement found to be in plaintiff's interests – orders made Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3, 76 Category: Principal judgment Parties: Christopher James Warren by his Tutor and Next Friend, Robyn Anne Warren (Plaintiff) Northern Sydney Local Health District (Defendant) Representation: Counsel: D Hirsch (Plaintiff) P Rooney (Defendant) Solicitors: Higgins Lawyers (Plaintiff) Hicksons (Defendant) File Number(s): 2018/263772 Judgment Introduction 1. On 25 and 26 June 2014 Christopher Warren (the plaintiff) suffered a debilitating thrombotic stroke which resulted in occlusion of his left internal caratoid artery. At the time, he was an in-patient at Royal North Shore Hospital (the hospital), having been admitted earlier on 25 June 2014 with a history of worsening headache and minor arm weakness. The plaintiff alleged that the right hemiplegia and brain damage he suffered as a consequence of the stroke had been caused by the negligence of staff of Royal North Shore Hospital (the hospital). It was accepted that the Northern Sydney Local Health District (the defendant), was the body liable for any liability of the hospital. The parties have agreed to resolve the proceedings by the entry of judgment in favour of the plaintiff in the sum of xxxxxx and payment of costs as agreed in the sum of $200,000. 2. This Court's approval of the settlement is required by s 76 of the Civil Procedure Act 2005 (NSW) because the plaintiff is accepted to be a person under a legal incapacity within the meaning of s 3 of the Civil Procedure Act. It is common ground that the plaintiff is an incommunicate person, being a person who has such a physical or mental disability that he is unable to receive communications or express his will with respect to his property or affairs. The evidence 1. The plaintiff, for whom Mr Hirsch appeared, read an affidavit of Patrick Heath, the plaintiff's solicitor, sworn 28 September 2019. Annexure "A" is a document entitled consent judgment. Annexure "B" is a folder which contains the expert reports served by the parties. 2. The plaintiff also relied on an affidavit of Robyn Warren, the plaintiff's wife who is also his tutor for the purposes of the proceedings. In the affidavit, sworn 30 September 2019, Ms Warren deposed as to the circumstances of the life she and the plaintiff share, the effect of the stroke in June 2014 and the plaintiff's present circumstances. She described the plaintiff before the stroke as a "bright, vibrant man who was very good with his hands". She deposed that he is now "a completely different person" who has difficulty making himself understood, who can no longer read or write and who has difficulty walking or initiating conversations. Ms Warren has deposed that the plaintiff can generally not be left alone and that his condition is permanent. Ms Warren requests that the Court approve the settlement. 3. The plaintiff has also tendered Mr Hirsch's confidential advice dated 18 September 2019 which contains his analysis of the risks of litigating the matter and the reasons for his opinion that the settlement sum is in the interests of the plaintiff. Consideration 1. The plaintiff presented to the hospital on the morning of 25 June 2014 with worsening headache and minor arm weakness. He was investigated in the Interventional Radiology (INR) Unit. The Magnetic Resonance Imaging (MRI) demonstrated no evidence of brain damage but a clot was found to be occluding a cerebral artery. The clot was removed and the artery was opened by stenting. The plaintiff was sent to the hospital's Intensive Care Unit (ICU) for recovery and further management. At this stage, the plaintiff's prognosis was thought to be good. 2. The plaintiff was in ICU by 3.15pm. No formal neurological assessment was done to determine baseline functioning. The first neurological observations were made by nursing staff at 3.30pm. Subsequent observations were made at 6pm. Although the observations showed that the plaintiff's condition had deteriorated in the previous two and a half hours, no action was taken. A further assessment was carried out at 8.30pm. Again the plaintiff's condition had deteriorated but no action was taken. The deterioration continued and was noted at 9pm but still no action was taken. A doctor, who saw the plaintiff at 11.20pm, noted dense right hemiplegia but took no relevant action. It was not until 9am on 26 June 2014 that investigations were carried out. These showed a total arterial blockage, thought to be due to stent re-occlusion. It was common ground that, by this time, the damage had been done and was no longer remediable. 3. There is no dispute that the plaintiff has suffered a very serious neurological injury that has compromised his physical and mental capacities to a very substantial degree. There is no dispute that the hospital owed a duty of care to the plaintiff. There does not seem to be a live issue about breach. The principal, if not sole, issue is causation. 4. The question is whether the plaintiff can prove that he would have been in a materially better position had his deteriorating neurological condition been treated either when it was first noted at 6pm on 25 June 2014 or subsequently. The plaintiff served reports of Professor Brew who opined that, if action had been taken at 6pm it was likely to have led to a better outcome. The defendant did not challenge this opinion. However, it adduced evidence as to what the hospital, had it acted non-negligently, would have done and whether such intervention would have been likely to produce a better outcome. 5. The two interventions postulated by the defendant for the purposes of this counterfactual were: thrombolysis (medication to dissolve the clot) or a further INR procedure. Professor Watson, a neurologist whose report dated 27 April 2019 was served by the defendant, said that thrombylosis would not have been given because the plaintiff had already been given aspirin, which would have been sufficient to block the plaintiff's platelet function. 6. The defendant also relied on the reports of Professor Mitchell, an interventional neuroradiologist, who opined that it was not clear that a reasonable neurointerventionist would have returned the patient to INR for further intervention to open the occluded stent. Professor Mitchell also noted the significant risk of infarction of a much larger volume of brain tissue following a caratoid artery dissection and middle cerebral artery stroke, which in turn creates a greater risk of death. Professor Mitchell said that the decision whether to perform another INR was at the discretion of the treating physicians. 7. The plaintiff faced substantial forensic difficulties in proving the time at which the plaintiff's deteriorating condition ought to have been diagnosed; what ought to have happened; whether there would have been a further INR and when; whether any such further INR would have been successful; and what the plaintiff's condition would have been had the INR been undertaken. It can be readily appreciated through this summary that, had the matter been litigated to its conclusion, there was a substantial risk that the plaintiff would have been unable to discharge his onus of proving that his loss was caused by the defendant's negligence and would have lost the proceedings. 8. The amount of the settlement, while less than the plaintiff could have expected had his claim been established in full, is a substantial sum. It could be regarded as including amounts for the following heads of damage: a substantial sum for non-economic loss; all past medical and other expenses; past gratuitous care; an amount for future care; and an amount to cover funds management. No claim was made for economic loss. The amount for costs would appear to be reasonable. I note that the upper limit for the additional amount for solicitor/client costs is $20,000. 9. I am satisfied that the settlement is very much in the plaintiff's interests. It will bring to finality the uncertainty about his financial position which has caused him, at times, to suffer depression. It will alleviate the burden of care which his family, and principally his wife, have undertaken. She will be able to have respite which will help her to continue. Orders 1. For these reasons, I make the following orders: 1. Pursuant to s 76 of the Civil Procedure Act 2005 (NSW), approve the settlement reached by the parties on 5 September 2019, which is set out in the document entitled "Consent Judgment" which is annexure "A" to the affidavit of Patrick John Heath sworn 28 September 2019. 2. Judgment for the plaintiff in the sum of xxxxxx (the judgment sum) plus costs as agreed at $200,000. 3. Order the judgment sum to be paid into Court, net of any statutory deductions. ********** 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: 04 October 2019