Hansen by his next friend Susan Winifred Hansen v Hunter New England Local Health District [2019] NSWSC 1270 (23 September 2019)

Last Updated: 24 September 2019

Supreme Court New South Wales

Case Name:	Hansen by his next friend Susan Winifred Hansen v Hunter New England Local Health District
Medium Neutral Citation:	[2019] NSWSC 1270
Hearing Date(s):	23 September 2019
Date of Orders:	23 September 2019
Decision Date:	23 September 2019
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	By consent the Court orders that: (1) Pursuant to s 76 of the Civil Procedure Ac 2005 (NSW), settlement is approved. Judgment: (2) Judgment is entered in accordance with paragraph [2] of the consent judgment filed 23 September 2019. The Court further orders that: (3) The defendant is to pay the plaintiff’s costs as agreed. (4) The balance of the settlement moneys are to be paid into Court pending further order of the Court. (5) The confidential advice of counsel is to be placed in an envelope marked “Confidential” and is not to be opened or inspected without the approval of a Judge. By consent the Court notes: (6) Paragraphs [3] to [11] inclusive of the consent judgment.
Catchwords:	CIVIL PROCEDURE – settlement approval – no point of principle – orders made
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 76
Category:	Procedural and other rulings
Parties:	Anthony Todd Hansen by his next best friend Susan Winifred Hansen (Plaintiff) Hunter New England Local Health District (Defendant)
Representation:	Counsel: PW Bates (Plaintiff M Rankin (Defendant) JL Harrison (National Disability Insurance Scheme) Solicitors: Gerard Malouf & Partners (Defendant) Norton Rose Fulbright Australia (Defendant)
File Number(s):	2017/137246
Publication Restriction:	Nil

JUDGMENT

1. HER HONOUR: This is an application for approval pursuant to s 76 of the Civil Procedure Act 2005 (NSW) of a settlement of proceedings commenced by a person under legal incapacity, Anthony Hansen.
2. The plaintiff was born in 1994 and is currently aged 25 years. Prior to the subject injury, while the plaintiff suffered from anxiety, he lived independently in the State of Victoria and did not require domestic assistance or care. After leaving school he worked in retail and hospitality.
3. On 25 December 2015, the plaintiff was admitted to Manning Rural Referral Hospital following a drug overdose. It is alleged that while in the Intensive Care Unit, a right-sided central venous catheter was incorrectly inserted in the right carotid artery and infused noradrenaline to the plaintiff’s brain, causing a major stroke and brain damage.
4. The plaintiff’s doctors have advised his tutor that, although he has made good recovery of his left leg function following the stroke, he has limited function of his left arm and visual impairment to both eyes. The brain damage the plaintiff suffered has impaired his cognitive abilities and he also experiences severe depression. As a result of his injuries and continuing disabilities, the plaintiff has difficulty with independent functioning and requires assistance.
5. The Court’s approval is sought in respect of a settlement agreement. The evidence before me includes the affidavits of Susan Hansen, the plaintiff’s tutor, dated 18 September 2019, and of Julie Baqleh, his solicitor, dated 18 September 2019.
6. The evidence from the affidavit material, the pleadings, the amended statement of particulars and the confidential advice of Mr Bates, counsel for the plaintiff, is that damages sought in these proceedings are for the plaintiff’s ongoing cognitive brain damage and severe depression. While the plaintiff had made good recovery of his left lower limb function following the stroke, he has limited function of his left upper limb and experiences left hemianopia. He has difficulty functioning independently as a result of his injuries and continuing disabilities.
7. Prior to suffering the injuries and disabilities, the plaintiff was a healthy young man who was independent in all aspects of daily living and personal care. He lived in Melbourne, away from his family, in an apartment he leased with housemates.
8. As a result of the injuries and disabilities, the plaintiff has had to relocate back to Forster to live with his mother. He has required domestic and personal assistance from his mother since his discharge from hospital on 8 January 2016 to date.
9. The plaintiff will require ongoing assistance into the future for personal and domestic care. He plans to eventually move out of his family home and will need commercial assistance to ensure quality of life. He is likely to commence a National Disability Scheme care plan which will continue indefinitely into the future.
10. The plaintiff has been a recipient of Centrelink benefits, namely a disability pension as a result of his injuries. The plaintiff’s solicitor has estimated his Centrelink payback to be $85,000. His solicitor has also estimated that the plaintiff will be precluded from receiving Centrelink benefits for approximately 11 years.
11. As at 11 May 2019, a Medicare notice of past benefits was in the sum of $1,413.30. This deemed charge expires on 11 November 2019.
12. As at 8 July 2019, the National Disability Insurance Scheme (NDIS) pay back owed by the plaintiff totals $2,653.65.

Consideration

13. I have carefully considered the information contained in the affidavits of both the plaintiff’s tutor and his solicitor, as well as the legal advice of counsel and the medical reports. I am satisfied that the compromise is a reasonable one, and beneficial to the plaintiff. I am of the view that the sum agreed is appropriate, and I approve pursuant to s 76 of the Civil Procedure Act. I bear in mind the risks of litigation and the benefit to the plaintiff in having the matter resolved.
14. Pursuant to s 76 of the Civil Procedure Act, I approve the settlement.

By consent the Court orders that:

(1) Pursuant to s 76 of the Civil Procedure Ac 2005 (NSW), settlement is approved.

Judgment:

(2) Judgment is entered in accordance with paragraph [2] of the consent judgment filed 23 September 2019.

The Court further orders that:

(3) The defendant is to pay the plaintiff’s costs as agreed.

(4) The balance of the settlement moneys are to be paid into Court pending further order of the Court.

(5) The confidential advice of counsel is to be placed in an envelope marked “Confidential” and is not to be opened or inspected without the approval of a Judge.

By consent the Court notes:

(6) Paragraphs [3] to [11] inclusive of the consent judgment.

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Amendments

23 September 2019 - Para [13] typographical error