Mills v Altabakh

HIS HONOUR: I am asked to consider the approval of the settlement of an action brought under the Compensation to Relatives Act 1897 (NSW) in respect of the death of Mr David Edelsten on 15 August 2022. The action is brought by his long-time de facto partner, Ms Karen Mills, on her own behalf and on behalf of their daughter, Charlotte, born in 2016. Approval is required because of Charlotte’s continuing minority. As Mr Toomey SC, who appears with Mr Holmes for the plaintiff, reminded me, she is currently nine years of age and will turn 10 on 22 May 2026.

The action is a brought against three defendants, being a general practitioner whom Mr Edelsten consulted on 12 November 2021, the Central Coast Local Health District in respect of the Gosford Hospital, the Emergency Department of which Mr Edelsten attended on 30 July 2022 and the Illawarra Shoalhaven Local Health District in respect of the Emergency Department of Wollongong Hospital which he attended on 4 August 2022.

The action is based upon the alleged medical negligence of each of those defendants. In respect of the second and third defendants those allegations are a breach of the non-delegable duty of the hospitals in respect of the acts and omissions of its employees, being the medical staff working in the emergency departments on those respective dates.

In support of the application for approval Mr Toomey has read the affidavit of Ms Mills of 22 October 2025 and the affidavit of his instructing solicitor of 21 October 2025. Ms Mills’ affidavit attaches the extensive expert evidence that has been obtained by the parties for the purpose of the case, which I have had the opportunity to consider in Chambers before commencing the hearing today. I have also been greatly assisted by the excellent comprehensive joint opinion of Mr Toomey and Mr Holmes, which has been admitted as confidential Exhibit A.

With the benefit of the joint opinion, I have considered the expert medical evidence for myself. It is clear, as is common enough in cases of alleged medical negligence, that there is a very significant issue for trial in the matter in relation to breach of duty of care and also in relation to the issue of causation connecting any breach of duty established with Mr Edelsten’s death.

Without descending into the detail, it is clear that the plaintiff’s case depends upon establishing that on each of the occasions upon which medical treatment was rendered by the defendants, to which I have referred, a misdiagnosis of the condition responsible for Mr Edelsten’s distressing symptoms with which he presented was made.

The plaintiff’s case in short is that Mr Edelsten met his sudden and untimely death by reason of a heart condition. There are various specific diagnoses suggested. But on each of the occasions the subject of the case, a diagnosis of chronic obstructive pulmonary disease was made either expressly or by necessary implication. On some of the medical evidence there is some debate about the actual medical condition which caused Mr Edelsten’s death, but it seems to me that the better view of the evidence is that it was due to a cardiac condition.

I am of the view, having regard to the contest between the experts, if I can put it that way, that there is ample scope for an appropriate compromise of the plaintiff’s case.

It is also apparent to me from my consideration of counsel’s opinion that, assuming that those issues as to liability were determined in due course in favour of the plaintiff, there were legal issues which are capable of affecting the assessment of the assessment of the financial injury suffered by Ms Mills and Charlotte due to the death of Mr Edelsten. While those matters are of lesser significance, they too suggest that compromise is appropriate.

Having considered all of the matters to which I have referred, including the opinion of Mr Toomey and Mr Holmes, I am of the view that the judgments and orders provided for in the form of consent judgment which has been handed up are appropriate.

As I have said at the outset, I am only really required to consider the settlement from the standpoint of an assessment of Charlotte’s interests. Ms Mills is under no legal disability and is entitled to settle the case so far as her interests are concerned by relying upon her own judgment having taken the advice of her counsel and solicitor.

The amount of the suggested apportionment in respect of Charlotte’s claim is 25 per cent of the total amount of the settlement, which I should emphasise is proposed on a plus costs basis. I will interpolate that I am assured by Mr Poulden, the solicitor for the plaintiff, by his affidavit that no solicitor/client margin will be charged in respect of the work done on behalf of Charlotte. May I say, that is a refreshingly old-fashioned approach by an experienced solicitor acting on behalf of an infant in litigation of this type, not always observed in practice, from what I see sitting on this Court considering settlements of this type on a frequent basis. Mr Poulden is to be commended.

The situation is that Charlotte, as I have said in discussion with Mr Toomey, was partially but not wholly dependent, upon her father because her mother, Ms Mills, was always in full-time work in a well-paid public service job and she remains in that position. It is clear that Charlotte’s dependency on her mother will continue and she will continue to receive the full support, financially and otherwise, of her mother, at least until she attains her majority.

The proportion of 25 per cent represents, if I can put it this way, a division of the support that each of Ms Mills and Charlotte would expect to receive from Mr Edelsten during his working life on a temporal basis and that seems to me to be a reasonable starting point for apportionment of a settlement calculated in terms of financial injury. It is not the only approach one could adopt, but as a rule of thumb it is certainly robust.

I am of the view that given Charlotte’s partial dependency on her father, and the expectation which Ms Mills has confirmed through Mr Toomey, that Ms Mills will continue to provide the full support she has always provided to her daughter during the balance of Charlotte’s minority, the apportionment proposed accords with the purposes of the Compensation to Relatives Act and I would apportion the judgment sum, in the exercise of my discretion, between Mr Edelsten’s dependents as to 75 per cent to Ms Mills and 25 per cent to Charlotte. Accordingly, I am of the view that the compromise is an appropriate one and I approve it in accordance with the provisions of section 76 of the Civil Procedure Act 2005 (NSW).

The orders are contained in the consent judgment which has to be amended and will be handed up. I observe that there is no reason why the proportion due to Ms Mills cannot be paid directly to her solicitor on the production of an authority to receive in the usual way and the portion due to Charlotte may be paid directly to the NSW Trustee and Guardian under the provisions of section 77(3) of the Civil Procedure Act.