Meyer v Western Sydney Local Health District

[2024] NSWSC 1657

Supreme Court

New South Wales

Medium Neutral Citation:

Meyer v Western Sydney Local Health District [2024] NSWSC 1657

Hearing dates:

17 December 2024

Date of orders:

17 December 2024

Decision date:

17 December 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

I approve the settlement in accordance with s 76(4) of the Civil Procedure Act 2005 (NSW) and direct that the settlement money be paid directly to the NSW Trustee and Guardian in accordance with s 77(3) of the Civil Procedure Act, until the first and second plaintiffs attain the age of 18 years.

Catchwords:

CIVIL PROCEDURE – settlement approval – whether settlement in the best interests of the children – where children’s father suffered a catastrophic brain injury caused by a parasitic infection – where claim for damages for nervous shock suffered by the children – settlement approved

Legislation Cited:

Civil Liability Act2002 (NSW), s 5O

Civil Procedure Act2005 (NSW), ss 76(3),76(4), 77(3)

Public Trustee Act 1995 (SA), s 16

Cases Cited:

Gray v Richards (2014) 253 CLR 660; [2014] HCA 40

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Dawn Meyer (First Plaintiff)
Robert Meyer (Second Plaintiff)
Western Sydney Local Health District (First Defendant)
Southern Adelaide Local Health Network Incorporated (Second Defendant)
South Eastern Sydney Local Health District (Third Defendant)

Representation:

Counsel:
Campbell SC and R O’Keefe (Plaintiffs)
J Reid (Second Defendant)

Solicitors:
Beston McManis Lawyers (Plaintiffs)
Gilchrist Connell (Second Defendant)
Makinson d'Apice Lawyers (First and Third Defendants)

File Number(s):

2024/83097

EX Tempore JUDGMENT

1. Dawn and Robert Meyer’s tutor, their mother Lara Meyer and their father, James Meyer brought proceedings in negligence against the defendants after Mr Meyer suffered a catastrophic brain injury which was caused by a parasitic infection, which also resulted in him suffering almost total loss of mobility below his waist.

2. Mr Meyer’s claims, as well as those in respect of the children for the nervous shock they suffered as the result of their father’s injuries have been settled on confidential terms, which are before the Court. Orders are now sought under s 76(4) of the Civil Procedure Act2005 (NSW) approving the settlement of the children’s claims, on the basis of the affidavit evidence of their solicitor Mr McManis and their mother, as well as confidential advice given by their counsel, Mr Campbell SC and Mr O’Keefe, following the children’s psychiatric assessment.

3. Given their age there is no question that the children are persons under legal incapacity and so the settlement requires the Court’s approval: s 76(3).

4. The question for the Court to resolve is whether the settlement is in the children’s best interests: Gray v Richards (2014) 253 CLR 660; [2014] HCA 40. What is proposed includes appointment of a private trustee as manager of the estate. The Court has power to order appointment of such a trustee: s 77(3) of the Act.

5. The settlement arises to be considered in circumstances where Mr Meyer, who had suffered diabetes since childhood, developed complications which led to end stage renal failure, that resulting in him undergoing an organ transplant at Westmead Hospital in July 2018. It transpired that his donor had lived in Thailand for many years, where intestinal nematode infections are common. Screening for such infection was not carried out. Had it been, treatment for such an infection was available.

6. The result was that after the transplant Mr Myer became ill, developed cerebral symptoms, eventually lost consciousness and fell into a coma. He was later diagnosed to have sustained brain damage as the result of the parasitic infection. He also suffered other serious injuries which left him, only in his thirties, wheelchair bound, with poor short term memory, delusional and unable to continue living at home with his family, because of the ongoing care which he requires, in order to help him live with his severe injuries and their ongoing consequences.

7. The reports of two psychiatrists, Dr Rickard-Bell and Dr Antony Mark, who have examined the children, now aged 12 and 13 years, are also in evidence. They explain the adverse impact which their father’s injuries, ill health and resulting need for care away from his family have had on each of them.

8. The confidential advice explained the challenges Mr Meyer faced in proving his case in negligence, given his burden of proof and the requirements of the Civil Liability Act2002 (NSW), which is also of relevance to his children’s claims in respect of their injuries.

9. Having considered all of the evidence in light of the risks of the litigation which has been brought for the children, I am satisfied that it may be accepted that the settlement the parties have arrived at is in their best interests and so should be approved by the Court. Further, that the orders sought in respect of funds management should also be made, given their respective ages and circumstances.

Orders

10. For these reasons by consent I approve the settlement in accordance with s 76(4) of the Civil Procedure Act 2005 (NSW) and direct that the settlement money be paid directly to the NSW Trustee and Guardian in accordance with s 77(3) of the Civil Procedure Act, until the first and second plaintiffs attain the age of 18 years.

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