Banks (bht Banks) v Hunter New England Local Health District

[2017] NSWSC 1682

Supreme Court

New South Wales

Medium Neutral Citation:	Banks (bht Banks) v Hunter New England Local Health District [2017] NSWSC 1682
Hearing dates:	27 November 2017
Date of orders:	27 November 2017
Decision date:	04 December 2017
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) Pursuant to ss 75 - 77 of the Civil Procedure Act 2005, the settlement set out in the Consent Judgment signed by the parties in proceedings 2015/00303667 (“the Consent Judgment”) is approved; (2)   Judgment for the plaintiff in the sum referred to in paragraph 1 of the Consent Judgment; (3)   Defendant to pay the plaintiff's costs in accordance with paragraph 1 of the Consent Judgment, agreed between the parties at $500,000; (4)   Note the provisions of paragraph 2 to 5 (inclusive) of the Consent Judgment; (5)   The defendant to pay to the plaintiff’s parents, Mr Kurt Banks and Ms Rachael Laing, the sum of $250,000 from the settlement sum referred to in paragraph 1 of the Consent Judgment; (6)   The defendant to pay into Court on the plaintiff’s behalf pending further order the remainder of the settlement sum referred to in paragraph 1 of the Consent Judgment, following deduction of: (a)   Statutory repayments referred to in paragraph 2 of the Consent Judgment; and (b)   Payment to the plaintiff’s parents the sum referred to in paragraph 5 herewith.
Catchwords:	MEDICAL NEGLIGENCE – birth defect – proceedings commenced by an infant through a Tutor – matter resolved – approval of the Court – no issue of principle – consent orders made.
Legislation Cited:	Civil Procedure Act 2005 Supreme Court Act 1970 Supreme Court Rules 1970
Cases Cited:	Fisher v Marin [2008] NSWSC 1357
Category:	Principal judgment
Parties:	Joseph Peter William Banks by his tutor Kurt Banks (Plaintiff) Hunter New England Local Health District (Defendant)
Representation:	Counsel: D J Higgs SC (Plaintiff) J Fox - Solicitor (Defendant)   Solicitors: Stacks Goudkamp Solicitors (Plaintiff) Curwoods Lawyers (Defendant)
File Number(s):	2015/303667

Judgment

1. HIS HONOUR: The matter comes before the Court in accordance with the Supreme Court Act 1970 and the Supreme Court Rules 1970 for approval relating to a child under, by definition, a disability and in relation to the settlement of proceedings for medical negligence.

2. The matter involves, or originally in its Statement of Claim involved, the birth of a child who suffered Hypoxic Ischaemic Encephalopathy (Stage 2) with metabolic acidosis, seizures and hypoxemia. The child suffers from Cerebral Palsy and is severely disabled.

3. The child was born in circumstances where apparently there was an absence of cardiotocograph signal which monitors the foetal heartbeat and uterine contractions during pregnancy.

4. A controlled artificial rupture of membranes was performed at 10.58am and the plaintiff was born with no respiratory effort and was taken to resuscitation at the Neo-Natal Intensive Care Unit.

5. I have had the advantage of a Confidential Advice provided by counsel for the plaintiffs which has been most helpful. I am grateful for its prior provision so that it enabled me to look at the proceedings in a manner that was appropriate prior to the matter coming before the Court.

6. The principles governing the exercise of the Court’s jurisdiction under s 76 of the Civil Procedure Act 2005 are well known and were described by me in Fisher v Marin [2008] NSWSC 1357 at [27]-[41]. I consider the settlement to be in the interests of the plaintiff, particularly bearing in mind her life expectancy, the liability issues and the level of damage.

7. I have before me Consent Orders and a Consent Judgment and I make the orders in accordance with the Consent Judgment, settling the proceedings and the Statement of Claim and issue the orders in the Short Minutes of Order provided to the Court, which Short Minutes are in the following terms:

1. Pursuant to ss 75 - 77 of the Civil Procedure Act 2005, the settlement set out in the Consent Judgment signed by the parties in proceedings 2015/00303667 (“the Consent Judgment”) is approved;

2. Judgment for the plaintiff in the sum referred to in paragraph 1 of the Consent Judgment;

3. Defendant to pay the plaintiff's costs in accordance with paragraph 1 of the Consent Judgment, agreed between the parties at $500,000;

4. Note the provisions of paragraph 2 to 5 (inclusive) of the Consent Judgment;

5. The defendant to pay to the plaintiff’s parents, Mr Kurt Banks and Ms Rachael Laing, the sum of $250,000 from the settlement sum referred to in paragraph 1 of the Consent Judgment;

6. The defendant to pay into Court on the plaintiff’s behalf pending further order the remainder of the settlement sum referred to in paragraph 1 of the Consent Judgment, following deduction of:

1. Statutory repayments referred to in paragraph 2 of the Consent Judgment; and

2. Payment to the plaintiff’s parents the sum referred to in paragraph 5 herewith.

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