Pols v Farooque

1. [1]

   This is an application for judicial approval of a settlement of proceedings pertaining to a person under legal incapacity. Approval is required pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW).

2. [2]

   In these proceedings, eight plaintiffs have sued Dr Yasser Farooque and the South Western Sydney Local Health District. The First Plaintiff sues on behalf of the Estate of Baydaa Alqas Pols to whom I shall, without any intended disrespect, refer to as “the Deceased”. The Deceased was married to the Second Plaintiff, Salah Najeeb Kareem Qaqoz. The Deceased and the Second Plaintiff shared four children who are the Third to Sixth Plaintiffs in these proceedings. The Seventh and Eighth Plaintiffs are the brother and sister, respectively, of the Deceased.

3. [3]

   The Deceased died on 2 October 2022 after being hospitalised for one year.

4. [4]

   The Plaintiffs instituted these proceedings claiming damages pursuant to the Compensation to Relatives Act 1897 (NSW) and nervous shock damages, regulated by Pt 3 of the Civil Liability Act 2002 (NSW), against the Defendants for medical negligence. The Amended Statement of Claim contends that the negligence of the Defendants was the ultimate cause of the Deceased’s death.

5. [5]

   The Seventh and Eighth Plaintiffs bring their own individual claims for nervous shock. They did not join the Second to Sixth Plaintiffs in their claim under the Compensation to Relatives Act.

6. [6]

   The Deceased married the Second Plaintiff on 7 September 2002 in Iraq. On 4 December 2017, together with the Third to Sixth Plaintiffs, they came to Australia and received humanitarian visas as refugees following the Islamic State of Iraq and Syria’s attack in Iraq. The Second Plaintiff was 39 at the time the family sought refuge in Australia. Due to the Second Plaintiff’s age, lack of English language skills and lack of work experience, he had difficulty finding a job. The Deceased and the Second Plaintiff pooled their Centrelink income to provide for their household, including the expenses of having children.

7. [7]

   The Deceased had been the primary carer for the family. But for the Deceased’s death, the Third to Sixth Plaintiffs would have lived with the Deceased in a shared household.

8. [8]

   At the time of the Deceased’s death, the Third to Sixth Plaintiffs ranged in age between 13 and 19 years old. At present, the Third, Fourth and Fifth Plaintiffs have reached legal majority being 23, 21 and 19 years old, respectively. The Sixth Plaintiff remains under legal incapacity, being 17 years old. The Second Plaintiff acts for his daughter as her tutor. The Second Plaintiff provided instructions as to the settlement of the claims for nervous shock and under the Compensation to Relatives Act at a mediation that took place on 16 February 2026. It was at this mediation the claims brought by the Third to Sixth Plaintiffs resolved, subject the Court’s approval of the claims in relation to the Sixth Plaintiff.

9. [9]

   The solicitor who acted for the Plaintiffs in these proceedings, Ms Suzy David, has sworn an affidavit dated 14 April 2026 in support of this application.

10. [10]

    The total settlement of the Compensation to Relatives Act claim was $XX. Of that overall sum, subject to the Court’s approval, an amount of $XX is proposed to be apportioned to the Sixth Plaintiff. This represents a 25% share plus costs and disbursements in the sum of $XX for the Compensation to Relatives Act claim.

11. [11]

    Subject to the Court’s approval, an amount of $XX is the sum proposed to be paid to the Sixth Plaintiff in respect of her nervous shock claim, plus costs and disbursements in the sum of $XX.

12. [12]

    Ms David deposes that the Sixth Plaintiff would receive, if approved by the Court, the sum of $XX. Ms David notes a Medicare deduction may apply in respect of the Sixth Plaintiff’s past medical expenses.

Medical chronology and expert evidence

1. [13]

   Exhibited to Ms David’s affidavit are two expert reports of Professor David L Morris. Professor Morris’ expert report of 6 January 2023 provides a chronological review of the medical treatment of the Deceased, together with his expert commentary at key critical junctures. He notes that the Deceased was referred to the First Defendant in June 2021 with a large cystic liver lesion measuring 8x7x7.9x6.9 centimetres. Blood tests returned negative results for hydatid serology and tumour markers. An MRCP scan identified a solitary large complex cystic lesion with multiple internal membranes but no daughter cysts. Professor Morris considered such findings were consistent with a hydatid cyst notwithstanding the negative serology.

2. [14]

   On 7 October 2021, the First Defendant performed a laparoscopic open right segment 7 and 8 resection, diaphragmatic resection, cholecystectomy and repair of the right hepatic vein at the Second Defendant’s hospital. During the operation, at the point of stapling to complete the resection, the anterior branch of the right hepatic vein was open, causing 1.5 litres of blood loss and a loss of cardiac output for approximately 30 seconds. Professor Morris notes that, critically, there was no central venous (CV) access and no arterial line in place at the commencement of the surgery. No blood group and cross match had been performed. The insertion of a CV line and arterial line was delayed by 30 to 40 minutes, significantly delaying effective resuscitation. The Deceased’s inferior vena cava (IVC) was subsequently sutured under poor visualisation due to ongoing blood loss and coagulopathy producing significant narrowing. The Deceased was transferred to Liverpool Hospital Intensive Care Unit.

3. [15]

   On 8 October 2021, a relook laparotomy was performed revealing congested liver and bowel consistent, in Professor Morris’ opinion, with venous outflow obstruction created by the sutures placed in the IVC at the first operation.

4. [16]

   By October 2021, imaging confirmed complete compression and occlusion of the intrahepatic IVC with extensive iliocaval thrombosis. An IVC stent was subsequently deployed.

5. [17]

   Further operations followed on 11, 15, 19 and 20 October 2021. The last operation involved a thoracotomy, cardiac bypass and path repair of the suprahepatic IVC after the stent was found to have eroded through the IVC wall. The Deceased remained paralysed, sedated and ventilated, requiring dialysis for renal failure. She suffered gangrene of her fingers and toes as well as developing encephalopathy.

6. [18]

   The Deceased eventually died on 2 October 2022. Professor Morris identified multiple compounding causes of death all attributable to the conduct of the First Defendant and the circumstances of the surgery. In short, he expressed the view that the wrong operation was performed, the surgery was performed at the wrong hospital, the wrong surgical technique was used, and other issues.

7. [19]

   Professor Morris produced a supplementary report on 6 February 2026 (Supplementary Report). In the Supplementary Report, Professor Morris maintained that a radical liver resection for a benign parasitic cyst was entirely inappropriate. He would have given preoperative oral albendazole followed by conservative surgery limited to removing the cyst.

8. [20]

   The Supplementary Report also responds to an expert report relied upon by the Defendants, authored by Associate Professor Kellee Slater. Professor Morris strongly objected to Associate Professor Slater’s characterisation of hepatic vein injury as an inherent risk of the procedure that could be avoided by the exercise of reasonable care. He also rejected Associate Professor Slater’s view that the First Defendant did his best in a difficult situation.

9. [21]

   The distillation of Professor Morris’s opinion was that an incorrect diagnosis was made, surgery was not necessary, the wrong operation was performed, it was done by a team and at a hospital that was inappropriate for the task, and catastrophic complications occurred that could have been ameliorated but were not.

10. [22]

    I have not received the full complement of evidence in these proceedings. That is not a criticism — it would be uncommon for the Court to receive the entirety of the evidence at this stage. What is plain from the material that has been provided is that there is a live contest between highly credentialed experts as to whether or not the First Defendant and, in turn, the Second Defendant, were negligent. As candidly noted by Ms David in her affidavit, this represented a risk to the Plaintiffs if the proceedings continued to final hearing.

11. [23]

    The Sixth Plaintiff also relied upon an independent child psychiatric report prepared by Dr Karen Gaunson. Dr Gaunson has over two decades’ experience in multidisciplinary assessment of infants, children, and young people. She was engaged by Ms David in connection with the Sixth Plaintiff’s negligence and nervous shock claim.

12. [24]

    On 30 October 2024, Dr Gaunson conducted an assessment via Zoom, over approximately three hours. At this point in time, the Sixth Plaintiff was aged 15 years and 2 months.

13. [25]

    Dr Gaunson’s report notes that the Deceased was hospitalised from October 2021 until her death on 2 October 2022. The Plaintiff was 13 years and 2 months old when the Deceased died. Because of COVID-19 restrictions and another factor, the Sixth Plaintiff was often unable to visit the Deceased during the first phase of her hospitalisation at Liverpool Hospital. She did not see her mother for around six to seven months during this time. Instead, the Deceased and Sixth Plaintiff communicated by telephone. The report notes that when the Sixth Plaintiff eventually did visit her mother, she found her mother to be a diminished version of herself. In consequence, the Sixth Plaintiff is said to have shut down. She withdrew from activities including soccer and became progressively aware around seven months into the Deceased’s hospitalisation that her mother was not going to come home.

14. [26]

    After her mother died, the Sixth Plaintiff experienced what Dr Gaunson describes as “a profound deterioration”. She lost interest in virtually everything, had no appetite, withdrew to her bedroom, could not sleep and had recurring dreams of her mother returning to life. She also developed other sequelae, including significant anxiety. She also developed thoughts of dying to be with her mother, though she denied active suicidal planning or self-harm.

15. [27]

    Dr Gaunson diagnosed the Sixth Plaintiff with complex post-traumatic stress disorder together with persistent depressive disorder, being an episode of major depression following bereavement that has reduced in severity but not yet resolved. As to causation, Dr Gaunson concluded that the incident and the bereavement were the most significant causal factors in the Sixth Plaintiff’s psychological injury. She offered a guarded prognosis and assessed the Sixth Plaintiff as having a moderate level of psychosocial impairment, functioning at a level of a young child relative to her peers.

Legal principles

1. [28]

   The Court will not enforce a compromise against the opinion of the tutor for the person under legal incapacity and his or her legal advisor: Re Birchall (1880) 16 Ch D 41; Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (Mills) at 4 [19] (Hammerschlag J, as his Honour then was).

2. [29]

   In settlement approval applications for persons under legal capacity, the Court “must form the view that it is beneficial to his or her interests”: Mills at 5 [29]. In relation to the Sixth Plaintiff’s claim, I have considered the confidential advice provided by Counsel who appeared for the Plaintiffs, Mr Tim Hackett.

3. [30]

   I have also considered Ms David’s affidavit evidence insofar as it relates to the settlement being a compromise. Ms David deposes that the settlement of the claims reflected a compromise in relation to issues of liability, causation and quantum. She deposes to this taking into consideration the risks associated with proceeding to trial, the nature and extent of injuries of each of the Plaintiffs, as well as the costs and delay of pursuing the litigation. She also takes into consideration the Deceased’s prognosis and the range of damages recoverable.

4. [31]

   Further, I have before me an affidavit of the Second Plaintiff dated 14 April 2026. The Second Plaintiff is also the father and tutor of the Sixth Plaintiff in these proceedings. In that affidavit, the Second Plaintiff deposes to his belief, informed by Ms David and Mr Hackett’s advice, that:

   1. (1)

      an apportionment of $XX (exclusive of costs), representing 25% of the Compensation to Relatives claim, would be appropriate for the Sixth Plaintiff;

   2. (2)

      an apportionment of $XX to the Sixth Plaintiff for her claim for nervous shock inclusive of costs and disbursement, with the net total for this claim being $XX (after deduction of costs and disbursements) would be appropriate;

   3. (3)

      the net amount the Plaintiff will likely receive, being the sum of $XX and $XX minus costs and disbursements, will be a net amount of $XX; and

   4. (4)

      that amount will be managed by the NSW Trustee and Guardian.

Determination

1. [32]

   Having considered and reviewed the evidence, I agree with the detailed assessments contained in the thorough advice from Mr Hackett. I am satisfied that the compromise and resolution of the claim by the Second to Sixth Plaintiffs, and the share of that settlement to be received by the Sixth Plaintiff, is in the Sixth Plaintiff’s interest. I endorse the observations made by Chen J in Brown v Western NSW Local Health District [2026] NSWSC 51 at [22] that considerations relevant to the compromise include matters such as litigation risk, the desirability of early finality, and the avoidance of the risk of further distress to the Sixth Plaintiff in being forced to litigate the claims in respect of the death of her mother. I therefore approve the compromise and the aliquot share provided for the Sixth Plaintiff.

2. [33]

   In relation to the management of the funds for the Sixth Plaintiff, Ms David deposes to having advised the Second Plaintiff, as tutor for the Sixth Plaintiff, that the monies due and payable to the Sixth Plaintiff from the settlement may be paid to the NSW Trustee and Guardian who will manage the funds for her. She confirms that the Second Plaintiff has advised her that, subject to this Court’s approval, he prefers for the NSW trustee and Guardian to manage the funds.

3. [34]

   In relation to solicitor/client costs, Ms David has addressed this in her affidavit sworn 16 April 2026. In that affidavit, she discloses the legal costs incurred across the entirety of the matter including disbursements for numerous liability investigations and expert reports, noting that individual Plaintiffs incurred individual disbursements such as medical reports, clinical records and Counsel’s fees. That is the situation here in relation to the psychiatric assessment by Dr Gaunson that I have considered above. There was also another psychiatrist report from Dr Antony Milch which was, for reasons not disclosed in Ms David’s affidavit, unable to be served. I have considered the amount of legal costs spread amongst the eight litigants in this matter and I remain satisfied that the proposed settlement remains beneficial to the Sixth Plaintiff in light of those costs. In saying this, it is not part of the Court’s function to into an assessment of the reasonableness of party/party costs, being a matter for agreement between the parties or, in default thereof, assessment. I nevertheless consider that there have been economies of scale achieved by a single solicitor acting for all Plaintiffs.

Orders

1. [35]

   Accordingly, I make the following orders:

   1. (1)

      The settlement for the Sixth Plaintiff in the sum of $XX be approved.

   2. (2)

      The orders proposed in the three Consent Judgments filed on 17 February 2026 be made.

   3. (3)

      The confidential material placed before the Court on behalf of the Sixth Plaintiff be retained by the Court in an envelope marked “only to be opened by order of a judge”.