Santos bht R. McGuinness v St Vincent’s Hospital Sydney Ltd

1. [1]

   By Notice of Motion filed 14 May 2024, the plaintiff seeks the following orders:

2. [2]

   In support of the orders sought in the Notice of Motion, Mr Santos has sworn an affidavit also dated 14 May 2024.

Proceedings Generally

1. [3]

   By way of background, in 2007 Mr Santos sustained an injury to his brain as a result of oxygen deprivation, having presented at St Vincent's Hospital Emergency Department with a swollen epiglottis. As a consequence of sustaining a brain injury, Mr Santos commenced proceedings in this Court against St Vincent's Hospital claiming damages for negligence resulting in his brain injury. Those proceedings were commenced on 19 December 2018 and, because of the then opinion obtained by Mr Santos' legal advisers, a tutor was appointed to conduct the litigation.

Mediation and Agreement

1. [4]

   On 13 December 2021, the parties attended a mediation. As a result of that mediation, an in principle agreement was reached which resulted in a consent judgment in favour of the plaintiff against the defendant in the sum of $1.1 million plus party/party costs which were agreed to be in the sum of $300,000.

2. [5]

   On 18 February 2022, Wright J approved the proposed settlement. His Honour ordered pursuant to s 77(2) of the Civil Procedure Act 2005 that the moneys payable under the settlement be paid into Court. That occurred on or about 7 April 2022. Other than the deduction of specific sums which have been approved by the Court by way of expenses, the balance of the moneys have remained in Court.

Previous Application

1. [6]

   On 6 June 2022, the plaintiff applied for the payment out to him of the funds in Court. Hamill J declined to grant the orders. Thereafter, the plaintiff's then solicitors ceased to act, and steps were taken with respect to the claim for costs by those solicitors. As a consequence, the sum originally claimed by the solicitors of $395,570 was reduced to $334,456. That sum was ordered to be paid on 18 July 2023 by this Court.

Present Application

1. [7]

   In support of the application today, the plaintiff relies upon a recent report dated 23 January 2024 of a clinical neuropsychologist, Associate Professor Jennifer Batchelor. Professor Batchelor carried out a series of neuropsychological tests and noted an opinion in the following terms:

2. [8]

   In a further opinion, Professor Batchelor said:

3. [9]

   Professor Batchelor's opinion is consistent with an opinion expressed by Dr Leonard Chin, a psychiatrist, in a letter of 23 January 2024, where Dr Chin said:

4. [10]

   Mr Santos' general practitioner, Dr Mark Bloch, expressed the opinion on 2 February 2024 that in the time since he has been caring for Mr Santos, which commenced in 2003, Mr Santos had improved in his cognitive functioning following the injury in 2007 and "is capable of self-care, daily functioning, and management of his finances".

5. [11]

   I also infer from the material before me that Mr Santos has been in fact operating a bank account, accepting deposits and making withdrawals, albeit of small sums of money.

Conclusion

1. [12]

   In my view, the evidence supports the conclusion that Mr Santos is no longer an incapable person for the purpose of these proceedings and that, accordingly, the proper course to follow is to make the following orders:

   1. (1)

      Pursuant to rule 7.18, I direct that the tutor, Robyn McGuinness, appointed in this matter, be removed.

   2. (2)

      I declare that I am satisfied that the plaintiff is of an adequate capacity to give instructions and make decisions with respect to this litigation and with respect to the financial management of moneys to which he is entitled.

   3. (3)

      Pursuant to section 77(4) of the Civil Procedure Act 2005, I order that entirety of the moneys held in Court for the benefit of the plaintiff be paid out of Court to the plaintiff.

   4. (4)

      I otherwise dismiss the Notice of Motion filed 14 May 2024.