Nguyen v Sydney Children’s Hospital Network [2020] NSWSC 355

Supreme Court New South Wales

Medium Neutral Citation: Nguyen v Sydney Children's Hospital Network [2020] NSWSC 355 Hearing dates: 3 April 2019 Date of orders: 03 April 2019 Decision date: 03 April 2019 Jurisdiction: Common Law Before: Harrison J Decision: Settlement approved Catchwords: CIVIL PROCEDURE – medical negligence – infant plaintiff – settlement approval – whether proposed settlement in the best interest of the plaintiff Legislation Cited: Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Alexander Nguyen by his tutor Cherrie Lavina (First Plaintiff) Cherrie Lavina (Second Plaintiff) Matthew Nguyen (Third Plaintiff) Sydney Children's Hospital (Randwick and Westmead) (Defendant) Representation: Counsel: D Graham SC (Plaintiffs) J Downing (Defendant)

Solicitors: Maurice Blackburn (Plaintiffs) Norton Rose Fulbright (Defendant) File Number(s): 2018/74077 Publication restriction: Nil

Judgment 1. HIS HONOUR: When aged only 14 months, Alexander Nguyen suffered a severe hypoxic-ischaemic cerebral insult at the Children's Hospital at Westmead following an elective tracheoplasty to correct a congenital malformation of his trachea. This was performed on 7 December 2016. 2. Following the surgery, Alexander was extubated on 12 December 2016 and was fed by a nasogastric tube and a transpyloric tube. However, in an agitated state the next day, Alexander pulled out the nasogastric tube and substantially removed the transpyloric tube. During attempts to reinsert the tubes, the tracheoplasty wound was perforated, resulting in hypoxia, bilateral pneumothoraces, a pneumomediastinum and surgical emphysema. Attempts were made in the ward to intubate him but these attempts ruptured the tracheal wound anastomosis. He was eventually taken to theatre where his trachea was repaired. This did not occur until Alexander had suffered severe global encephalopathy. 3. There are four substantial allegations made against the defendant. First, the recommendation and performance of unnecessary surgery. Secondly, a failure adequately to inform Alexander's parents that it was possible to take a wait and see approach to his condition. Thirdly, failure properly to plan for his post-operative management. Finally, unreasonable delay securing an airway after wound breakdown. An allegation of a failure to warn of the risks associated with the surgery has also been foreshadowed as a possible additional claim. 4. The proceedings have resolved following mediation. I am now asked to approve a settlement in favour of Alexander in the sum of $10.25M inclusive of interim payments of $800,000 and funds management, as well as statutory and other third party repayments totalling approximately $70,000. The proposal is exclusive of party and party costs. There is likely to be an application to the trustee for the payment of solicitor and client costs. 5. I have been provided with a detailed and helpful written opinion from Mr Graham SC who appears for Alexander. Mr Graham has provided me with his views on the range of likely damages that Alexander would recover if the matter were litigated, and the extent to which any amount offered as a compromise of the proceedings should be discounted by reference to issues of liability and the general vicissitudes of litigation. Without descending into the detail of that opinion, it is sufficient for me to observe that the proposed settlement sum falls within the range of likely or probable damages that Alexander could be expected to recover on a contested basis. Included in that assessment is the fact that Alexander has an anticipated life expectancy to only the age of 20 years approximately. 6. The applicable principles in an application for approval of a proposed compromise are well settled. In Elliott v Diener (1978) 21 ACTR 21, Blackburn CJ said: "The test of benefit to the infant plaintiff is not whether the sum is adequate or reasonable. The matter is not to be decided by the plaintiff's own solicitor as if he were a judge awarding damages after a contested hearing. The question which counsel or solicitor for the plaintiff has to decide, when considering a compromise of the infant's claim, is whether the prospect of a greater sum by rejecting the present offer is good enough to outweigh, significantly, the risk of not getting any more. There may be various factors in such a decision, sometimes present and sometimes not; for example, the importance of termination of proceedings may be greater for some plaintiffs and insignificant for others. The question of costs, also, would usually be significant. The decision is peculiarly one for experienced counsel and solicitors. The opinion of the next friend will seldom be of any importance; never, indeed, unless he is carefully advised as to the real question to be decided, and in particular that his own interests are totally irrelevant." 1. I am required to form a view about whether the risk to Alexander of losing the sum certain that has been agreed is outweighed by the possibility of receiving more after a hearing. 2. That decision calls for an experienced judgment taking into account the sometimes unexpected or unpredictable litigious outcomes, the difficulties and problems of securing a satisfactory result on appeal, and the usually grave financial consequences if an amount proposed by way of compromise were not exceeded at trial. 3. Applying these principles to the present case, I consider that the proposed settlement is a satisfactory outcome for Alexander and it is in his interest for it to be approved. The risk of losing the proposed settlement sum is not in my opinion outweighed by the prospect of receiving more at trial. There are potentially grave financial consequences for Alexander and his family if the offer is rejected and he fails to do better than any offer of compromise that may be served by the defendant for this amount. 4. In these circumstances I will make the following orders: 1. I note that this matter has settled as between the first plaintiff and the defendant in accordance with the terms of a Consent Judgment dated 3 March 2020 and signed by the legal representatives of the parties. 2. I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005. 3. I order in accordance with paragraph s 77(2) of the Act that the sum referred to in paragraph 1 of the Consent Judgment, less the sum of $800,000 referred to in paragraph 2, and less any authorised deductions for which the Consent Judgment either specifically or by inference necessarily provides, be paid directly to Australian Executor Trustees Limited on trust for the first plaintiff. 4. I order in accordance with paragraph 4 of the Consent Judgment that the defendant pay the first plaintiff's costs and disbursements.