Larauza v Healthe Care North Gosford Pty Ltd [2019] NSWSC 1450

Supreme Court New South Wales

Medium Neutral Citation: Larauza v Healthe Care North Gosford Pty Ltd [2019] NSWSC 1450 Hearing dates: 11 October 2019 Date of orders: 11 October 2019 Decision date: 11 October 2019 Jurisdiction: Common Law Before: Ierace J Decision: Orders made by consent. Catchwords: CIVIL PROCEDURE – approval of settlement – by consent – whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity – settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW), s 76 Cases Cited: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 33 Category: Principal judgment Parties: Sebastian Larauza by his tutor Katerina Larauza-Kasparova (Plaintiff) Healthe Care North Gosford Pty Ltd trading as North Gosford Private Hospital (First Defendant) The Estate of the late Dr Malcolm Catt (Second Defendant) Representation: Counsel: M Cranitch SC; A Campbell (Plaintiff) N Amys (First Defendant) D Reid (Second Defendant)

Solicitors: Gerard Malouf & Partners (Plaintiff) MinterEllison (First Defendant) Moray & Agnew (Second Defendant) File Number(s): 2017/255388

Judgment 1. HIS HONOUR: This is an application for approval of a proposed settlement of a claim for damages commenced on behalf of Sebastian Larauza, the plaintiff, by his mother, Katerina Larauza-Kasparova, as his tutor, against Healthe Care North Gosford Pty Ltd and the Estate of the late Dr Malcolm Catt. 2. The application is made pursuant to s 76 of the Civil Procedure Act 2005 (NSW) ("the Act"), which provides that, in a case of proceedings commenced on behalf of a person under legal incapacity, if an agreement for a compromise or settlement is made, that person is not bound by it unless it is approved by the Court. 3. The claim for damages arises from an alleged brain injury, suffered by the plaintiff at his induced birth on 15 April 2004 at North Gosford Private Hospital. The obstetrician was Dr Catt. It is alleged on behalf of the plaintiff that his birth should have been induced earlier than it was, and that during the birth he suffered a hypoxic ischaemic event, causing brain damage which manifested in seizures three hours after his birth. It is alleged that there was a failure by those facilitating the birth to notice abnormalities in the cardiotocography and take measures that would likely have avoided the brain injury. 4. It is further alleged that, consequent to the injury, the plaintiff has cognitive function deficits. A recent assessment placed his intellectual functioning at a lower level than 87 per cent of children his age, which is 15 years. He requires specialist services and habilitative support, which presently include speech and occupational therapy, and educational and vocational support, and will likely continue to do so for the rest of his life. 5. I have had the benefit of reading a confidential advice as to the merits of the proposed settlement, prepared by Senior Counsel for the plaintiff who is a specialist in personal injury matters, Michael Cranitch SC, and his instructing solicitor, Leslie Abboud. 6. In an affidavit affirmed on 4 October 2019, the plaintiff's mother explained that she had received advice from Mr Cranitch and Andrew Campbell of Counsel recommending settlement in the amount proposed and that, having considered that advice, she has instructed her solicitors to settle the case for that amount. Ms Larauza-Kasparova also states that she understands that if the settlement is approved by the Court, it will be a full and final settlement for Sebastian in relation to the case. 7. The Court's function in a hearing pursuant to s 76 of the Act is protective in nature. In Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336, Hammerschlag J, referring to the legislative scheme in the Compensation to Relatives Act 1987 (NSW), observed, at [29]: "The principle is that for the Court to grant approval for a compromise to be entered into by the disable[d] person it must form the view that it is beneficial to his or her interests. The compromise should be assented to by the tutor and there should be opinions from his or her legal advisers that they consider it to be so: Re Birchall. The Court will consider for itself whether the compromise will be beneficial to the disable[d] person: Somerset v Ley [1964] 1 WLR 640; reported sub nom Re Ley's Trusts [1964] 2 All ER 326." 1. The Court must take into account the possibility that an award of damages at the conclusion of a full hearing may deliver a greater quantum of damages than that which is the proposed settlement amount. 2. Taking into account the confidential advice by his Senior Counsel and the content of the affidavits of his instructing solicitor and the plaintiff's mother, I am satisfied that the settlement is in the best interests of the plaintiff, Sebastian Larauza. 3. Accordingly, I approve judgment in the terms set out in paragraphs (1) to (13), by consent.