Page by his tutor NSW Trustee & Guardian v Gunewardene

HIS HONOUR: Simon Page was severely injured when he fell from a ladder on 2 May 2010 in the course of performing painting work for his employer. As a result of the traumatic head injury sustained in the fall, Mr Page became incapable of managing his affairs.

Dr Gunewardene practised as a psychiatrist with specialist knowledge and skill in the areas of anxiety, mood, personality, schizophrenia and related disorders. At the time of his fall, Mr Page had been taking lithium 450mg twice daily, Modafinil 50mg in the morning, Sertraline 100mg in the evening and Nortriptyline 150mg at night. In his amended statement of claim filed on 24 November 2015, Mr Page alleges that these or similar combinations of medications had been prescribed to him by Dr Gunewardene from as early as March 2007 and continuously thereafter up until the time of his fall. Mr Page further alleges that prescribing these combinations of medications for him, in the absence of close monitoring, carried with it a foreseeable risk of harm, including the propensity to suffer from dizziness and fainting. In particular, Mr Page alleges that Dr Gunewardene failed to advise or warn him of the likely or potential consequences for him of taking these medications.

In these circumstances Mr Page maintains that on 2 May 2010 he suffered a blackout while positioned on the ladder from which he fell. It is his case that this was caused by the medication that had been prescribed by Dr Gunewardene which Mr Page had taken according to his advice.

The proceedings are listed for hearing commencing on 5 March 2018 with an estimate of two weeks. I am now asked to approve a settlement of the proceedings, to the extent that they involve Mr Page, upon the basis of a verdict for Dr Gunewardene with no order as to costs. That result is endorsed by Mr Barry of Queens Counsel, who appears for Mr Page, upon the basis that there are no reasonable prospects of Mr Page establishing either that Dr Gunewardene was negligent in his prescribing or in his advice, or that Mr Page’s fall was caused as a matter of fact by some form of dizziness or hypotensive event while stationed on the ladder at the time.

I have been provided with a report dated 1 February 2017 prepared by Assoc. Professor Mark Little, a consultant clinical toxicologist and emergency physician. Dr Little offered the following opinion:

It follows that Mr Barry’s opinion, having regard to the state of the expert and lay evidence that is available, is that Mr Page will not be able to establish that the medications prescribed by Dr Gunewardene made a contribution, let alone a material contribution, to the fall.

Mr Page has been in receipt of significant sums by way of workers compensation from his employer and these are continuing.

I have had the benefit of overseeing this matter in the Professional Negligence List for some time. I am satisfied that the proposed settlement is in the best interests of Mr Page and I propose to approve it.

Having regard to the fact that there are cross claims that are affected by this proposal, I am also asked to make orders that wholly dispose of the proceedings. Accordingly, I make the following orders: