Gray bhnf Salasovicova v St Vincent’s Health Australia t/as Mater Hospital Sydney

HIS HONOUR: This is an application for approval of a settlement of proceedings commenced by Amalia Gray by her tutor Katarina Salasovicova. Amalia was born in April 2013 and is now 6 years of age. I previously declined to approve a settlement of the proceedings proposed earlier: see Gray bhnf Salasovicova v St Vincent’s Health Australia t/as Mater Hospital Sydney [2019] NSWSC 1402. In dealing with that application I said this:

The parties have now agreed to increase the amount of the proposed settlement. The application is also supported by further evidence from the plaintiff’s mother, in the form of an affidavit affirmed on 3 December 2019. Ms Salasovicova’s evidence is important and is relevantly as follows:

I should indicate that, notwithstanding Ms Salasovicova’s reference to it in paragraph 25 of her affidavit, it has never been my view that settlement of the proceedings should await what is there referred to as the plaintiff’s “coming of age”.

I note again that the first defendant has admitted a breach of its duty of care. That does not foreclose the plaintiff’s difficulties with the issues of causation that are common to the response that both defendants’ have made to the plaintiff’s claim. Clearly enough, the assessment of the reasonableness of a sum offered by way of settlement is a function of a number of matters including the plaintiff’s prospects of success and the realistic calculation of the undiscounted amount of damages that could be awarded. I am not presently satisfied that the sum of $9.5M is a proper indicator of the plaintiff’s chances of success, when applied as a risk sensitive percentage of the damages she could possibly recover if she were to succeed entirely.

However, as Ms Salasovicova’s evidence somewhat starkly reveals, the plaintiff’s need for financial assistance in her early years may well be a consideration equally as important as, if not more important than, the uncertain assessment of whether her damages will remain intact as a viable income producing fund to provide for her needs for the whole of her anticipated life. Ms Salasovicova’s concern is that Amalia’s current treatment needs ought not to be disregarded, or discounted in significance, by reason of the apparent force of a less nuanced concern about whether the money might actually run out in Amalia’s lifetime. Put bluntly, consideration of what is or is not in the best interests of an infant plaintiff must necessarily take account of what can be done for her in the short term no less so than what might be required to provide for her in the long term. That is particularly so if access to treatment now might produce enduring improvement in her condition and enjoyment of life that could be lost or that later intervention might not necessarily provide. Assessment of a plaintiff’s best interests is not merely an actuarial calculation involving the product of the projected lifetime earnings of the contracting fund and the best (necessarily problematic) estimate of the remaining years. In that last respect I note that competing life expectancy calculations vary in the present proceedings by as much as twenty years.

I have raised the prospect of an interim payment as a possible solution to the short term unavailability of funds to meet the expenses identified in Ms Salasovicova’s affidavit. Senior counsel for the plaintiff did not show any particular enthusiasm for the suggestion and senior counsel for the defendants was not armed with instructions to indicate what attitude they would take to it. I note in any respect that senior counsel for the plaintiff endorses the settlement and due respect must be accorded to the views of an experienced practitioner with an intimate knowledge of the plaintiff’s case.

In all of the circumstances, despite misgivings about whether or not the amount proposed is in the best interests of the plaintiff, in the sense that she might well achieve a better dollar result if the proceedings went to trial, I have reluctantly concluded that she may well benefit now or in the near future from the immediate receipt of, and access to, a settled fund in ways that will offset the risk that she may well outlive the life of the fund. The plaintiff’s parents are also intelligent and resourceful people in whose care the plaintiff will fare better than comparable cases where generous and unqualified assistance from family members cannot be expected or assumed.

I will therefore make the following orders: