Talaofa Peaua as tutor for Salvania Peaua v Western Sydney Local Health District [2024] NSWSC 1319 (16 October 2024)

Last Updated: 21 October 2024

Supreme Court New South Wales

Case Name:	Talaofa Peaua as tutor for Salvania Peaua v Western Sydney Local Health District
Medium Neutral Citation:	[2024] NSWSC 1319
Hearing Date(s):	16 October 2024
Date of Orders:	16 October 2024
Decision Date:	16 October 2024
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Pursuant to section 76 of the Civil Procedure Act 2005 (NSW), the settlement of these proceedings is approved in accordance with the terms of the consent judgment dated 23 September 2024 signed by the parties. (2) I make orders in accordance with paragraphs 1 and 2 of the consent judgment. (3) I note the agreements and acknowledgments of the parties recorded in paragraphs 3 to 10 of the consent judgment. (4) In accordance with paragraph 6 of the consent judgment, and under section 77(2) of the said Act, I direct that, after deduction of the amounts identified in paragraph 5 of the consent judgment, the balance of the agreed settlement sum be paid into Court until further order. (5) These orders may be entered forthwith.
Catchwords:	CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – settlement approved
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 76
Category:	Principal judgment
Parties:	Talaofa Peaua as tutor for Salvania Peaua (Plaintiff) Western Sydney Local Health District (Defendant)
Representation:	Counsel: D Toomey SC with M Tanevski (Plaintiff) B Bradley (Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) Makinson d’Apice Lawyers (Defendant)
File Number(s):	2021/90287

JUDGMENT

1. This is an application for approval of a settlement under the provisions of s 76 Civil Procedure Act 2005 (NSW).
2. The plaintiff suffered catastrophic personal injury while an in-patient of Blacktown Hospital on 18 May 2019. It is necessary to say a little about the circumstances to put the question of whether the settlement is for the benefit of the plaintiff or in her best interests in context.
3. The patient had had a history of what could have been characterised as neurocognitive symptoms at home, and she was admitted to the hospital on 15 May 2019 with a history of being unsteady on her feet, vagueness, slowness in responding to questions, headaches and insomnia. After triage, she was categorised as a potential stroke victim and was accordingly admitted to a specialised ward. Investigations were carried out appropriately to attempt to confirm a diagnosis. There were some abnormalities on MRI and MRA of the brain.
4. While in hospital the plaintiff was noticed by nursing staff and others to have a tendency to absent herself from her ward to wander the corridors. From my understanding of the material before me, that wandering was undirected or aimless.
5. Due to the matters I have referred to, including the history of unsteadiness of gait, at some stage a healthcare provider at the hospital suggested that the plaintiff was at a relatively high risk of falling. In any event, on 19 May 2019 she was seen to have been wandering in the corridor, I think three times, notwithstanding the presence of her husband in the ward with her.
6. The evidence suggests that, on one view of the facts, the husband absented himself from attendance upon his wife to leave the hospital to shower, and I infer, otherwise clean up. It seems to be common ground that he had a conversation with a nursing assistant before he absented himself. There is an issue perhaps, about what was said during that conversation, but the defendant's case is that the nursing staff on duty in the ward at the time, consisting of a registered nurse and an assistant in nursing, were aware of the plaintiff's tendency to wander, and, of course, of her symptoms, and had adopted a regime of supervision by way of checking on her. According to the statement of the assistant in nursing (Exhibit A before me), that was routinely done every five minutes.
7. It must be said that it is also clear from the evidence of the nursing staff, that they had other duties to perform for other patients, and, doubtless should this matter proceed to trial, there would be issues about whether the five-minute check regime could be strictly adhered to, having regard to those other responsibilities. However, on the limited information before me in this limited hearing for a limited purpose, there is no reason for me to suppose other than that the registered nurse, and particularly the assistant in nursing, were conscious of the need to, and did in fact, keep an eye on the plaintiff.
8. The plaintiff’s absence from the ward was noticed during one of those checks. A search was immediately instituted, and she was soon found to have fallen down the fire stairs connecting the fourth and fifth floors of the hospital. There is no doubt whatsoever that as a result of the fall the plaintiff suffered catastrophic injuries. It is sufficient for me to say that the injuries include a traumatic brain injury and tetraplegia at the high thoracic level. There are other injuries as a result of the fall and despite the best endeavours of the medical profession, she is left in a catastrophic state. She is not ambulatory and suffers all of the consequences and disabilities usually associated with tetraplegia and severe traumatic brain injury.
9. Clearly the hospital owes a non-delegable duty of care to the patient, and there is no issue about that in the case. The question is whether the evidence supports the contention that the system the defendant had adopted for checking on the plaintiff on the morning of her accident discharged its undoubted duty to see that reasonable care was taken.
10. It seems to me that there is ample evidence that there was a foreseeable risk of personal injury constituted by the tendency of the plaintiff to wander combined with what had been identified as a high risk of falling due to the condition which led to her admission to hospital in the first place. In that regard a great body of competing expert evidence has been put together on both sides of the record. It is not necessary for present purposes to summarise that evidence. I should say that I have been greatly assisted in that regard by the confidential opinion of Mr Toomey SC and of his junior, Mr Tanevski, who appear for the plaintiff.
11. From my consideration of that opinion and from my consideration of the expert material annexed to the affidavit of Ms Susan Newman, the plaintiff's solicitor, I am well satisfied that, should this matter proceed to a hearing, liability will be a very live issue. Indeed, it could be said that there will be a hot contest in that regard in terms of, as it was put in former times, what the response of a reasonable hospital to the foreseeable risk identified should have been, and whether the measures adopted by the defendant conformed to that standard of reasonable care. It also seems to me that, as in any case involving a fall by a person for whom the defendant has a duty of care, causation is likely to figure in arguments on liability.
12. There are also contests in relation to quantum. They include the question whether the plaintiff had a pre-existing neurocognitive impairment which would affect her longevity in any event, and, as in all such cases involving catastrophic injury and an immobile plaintiff, the question of her life expectancy. In respect of that latter issue, there is again a very hot contest in the expert evidence exchanged by the parties. Again, it is not necessary for me to attempt to resolve that or to assess in express terms prospects of the outcome. What can be said is that there is no issue about the catastrophic nature of the injuries suffered, and there is no issue that the care that the plaintiff is currently receiving in an appropriate care facility is the appropriate regime for persons suffering her injuries and disabilities.
13. The matter has been mediated and the parties have arrived at the agreement which I am asked to consider for the purposes of s 76. The sum proposed is $XXXXXX, inclusive of funds management. The proposal has the imprimatur of senior and junior counsel for the plaintiff, and the defendant is represented by Mr Bradley of counsel, a very experienced barrister in the field, and one can infer the defendant commends the settlement to the Court so far as that is relevant.
14. I have considered the affidavit of the plaintiff's tutor, her daughter, Salavina Peaua, who acknowledges the advice she has received from senior counsel, junior counsel and the plaintiff’s solicitor. She asks the Court to approve the settlement. I am also assisted by the affidavit Ms Newman, who also commends the settlement to the Court.
15. The cost of supporting the plaintiff in the care facility in which she currently resides has been met by a payment plan under the National Disability Insurance Scheme (“NDIS”), and Ms Newman's affidavit sets out that she has received notice from the National Disability Insurance Agency (“NDIA”) that it will be seeking to recover the amount of $XXXXXXXXXX from the settlement fund in respect of the cost of supporting the plaintiff.
16. It is also the legal effect of the governing legislation that a Compensation Reduction Amount (“CRA”) will be applied in future to the payment plan availability to the plaintiff, and, doing the best she can using the calculator the NDIA provides, that reduction could be as much as $XXXXXXXX per annum. Doing the best she can Ms Newman, as I have said, puts that as a possible maximum.
17. It should be said that, not only is there a dispute between the experts about the life expectancy of the plaintiff, but it is a trite but true saying that no one can know the life span of another, and great uncertainty always attends such questions. The uncertainty in this case is somewhat attenuated as the evidence before me is that the plaintiff, who is 55 years of age, assuming she enjoys the life span estimated by the plaintiff's expert, will, at the age of 65 transition from NDIS to the My Aged Care scheme at which time the CRA reduction, as it is put, will terminate.
18. In addition to the NDIS effect on the settlement funds, there is $XXXXXXXX by way of charge due to Medicare Australia. There is no Centrelink repayment because the plaintiff was not in the workforce at the time of the accident, and had not been for many years, and never claimed Centrelink benefits. There will, of course, be a margin for solicitor and client costs, although the defendant will pay the plaintiff's ordinary costs of the proceedings as a condition of settlement.
19. The effect of all of this is that the net proceeds of the settlement, if I may put it that way, will be a little over $XXXXXXXX, and it is obvious that that sum is likely to be fully expended if the maximum CRA reduction in accordance with Ms Newman's calculations is exacted by the Commonwealth government.
20. Having said that, given that the plaintiff's current care situation is that most appropriate for her and, indeed, ensures that she receives a very high level of care and treatment, the consideration that the current net proceeds may be expended in maintaining that level of care and treatment does not necessarily imply that the sum proposed is insufficient as an appropriate compromise. One needs to bear in mind that the evidence before me is that there will be an application made for payment of the funds out of court in due course for payment to a private trustee for appropriate investment and management. I interpolate that there are other issues relating to that consideration which were addressed during oral argument and need not be repeated here for the purpose of the question I am bound to determine. While the settlement includes the costs of fund management, with interest rates being relatively high currently, prudent investment ought to be capable of producing income which may be recapitalised to extend the life of the fund.
21. In all the circumstances, for the reasons I have rehearsed, I am satisfied that an appropriate compromise is in the plaintiff's best interests, and for her benefit. I am satisfied that this is an appropriate compromise. It is in the nature of settlement that no outcome is perfect; and the legal applicable is not one of perfection.
22. In the circumstances I approve the settlement.
23. I have the agreed consent judgment incorporating the terms of settlement and some additional short minutes covering supplementary orders. The consent orders have been signed by the solicitor for the plaintiff, Ms Newman, by Mr Bradley of counsel for the defendant, and now by me. I direct that the seal of the Court be affixed to them. I will make orders in accordance with the form of short minutes of order signed by me and dated today which may be placed with the papers. I direct that the seal be affixed to that form of orders. I will read them onto the record for clarity:

(1) Pursuant to section 76 of the Civil Procedure Act 2005 (NSW), the settlement of these proceedings is approved in accordance with the terms of the consent judgment dated 23 September 2024 signed by the parties.

(2) I make orders in accordance with paragraphs 1 and 2 of the consent judgment.

(3) I note the agreements and acknowledgments of the parties recorded in paragraphs 3 to 10 of the consent judgment.

(4) In accordance with paragraph 6 of the consent judgment, and under section 77(2) of the said Act, I direct that, after deduction of the amounts identified in paragraph 5 of the consent judgment, the balance of the agreed settlement sum be paid into Court until further order.

(5) These orders may be entered forthwith.

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