Caicedo v South Western Sydney Local Health District

This is an application for judicial approval of a settlement pursuant to s 76(3) of the Civil Procedure Act 2005 ("the Act"). The approval is necessary because the third plaintiff, Joseph Steve Caicedo Salvador is presently 17 years of age and is therefore under a legal incapacity. The first plaintiff, Joseph Steve Caicedo, is the third plaintiff's father. The second plaintiff is the third plaintiff's sister.

The third plaintiff was born in June 2007. He is the son of Sandra Elizabeth Salvador Carrasco (the deceased), and the first plaintiff who is also the third plaintiff's tutor in the proceedings.

On 13 March 2018 the deceased died by suicide when she was an inpatient in the psychiatric unit at Liverpool Hospital. The cause of death was hypoxic ischemic encephalopathy as a consequence of self-inflicted harm. The plaintiffs allege that the defendant was negligent on the basis that it failed to remove ligature points in the deceased's room, failed to properly monitor the deceased and failed to commence electroconvulsive therapy at an earlier date in light of the deceased's known clinical history. In April 2023 the defendant admitted that it had breached its duty of care owed to the plaintiffs by failing to remove the ligature points from the deceased's hospital room.

In 2022 the first, second and third plaintiffs commenced proceedings alleging mental harm pursuant to the Civil Liability Act 2002 (NSW) (“CLA”) and for dependency pursuant to the Compensation to Relatives Act 1987 (NSW) (“CRA”). The first plaintiff and the defendant have reached a proposed settlement and the matter is now before me for approval of the settlement of both the dependency claim and the third plaintiff's claim for mental harm pursuant to the CLA.

In support of the application for approval I received the following:

In an application for approval of a settlement pursuant to s 76(3) of the Act the Court's function is protective. The question is whether the proposed settlement is beneficial to the interests of, in this case, the plaintiff under an incapacity, i.e. the third plaintiff, or in his best interests: See Permanent Trustee Company Limited v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (“Mills”) at [29]; Budini v Sunnyfield [2021] FCA 1540 at [10].

It is the Court's responsibility to determine this question albeit with the assistance of confidential advice provided by counsel: See Mills at [29]; Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 at [27] (“Scandolera”).

In its determination the Court is to consider the “advantages and disadvantages of the litigation continuing not only in terms of whether a plaintiff might secure a more advantageous award from the Court at trial but also issues such as the prospects of an appeal and the costs and pressures imposed on a plaintiff if the litigation were to continue”: Scandolera at [29]

The tutor should also assent to any compromise, which has occurred here.

This case presents some unique difficulties on causation of damage. The defendant has admitted that it has breached its duty of care to the deceased and that the breach caused her death. However, there are some significant disputes between the parties, as is to be expected.

In relation to the claim pursuant to the CLA the third plaintiff and the defendant have served expert evidence which suggests that he has suffered a recognised psychiatric illness as required by s 31 of the CLA.

With respect to the claim for financial dependency pursuant to the CRA, bearing in mind the deceased's extended mental illness, and there is some doubt about many factors that relate to dependency, I have carefully considered the opinions and conclusions of counsel in the confidential advice. I have also taken into account the matters and opinions expressed by Ms Whiting and Mr Caicedo in their respective affidavits as well as the advantages and disadvantages of this litigation continuing.

In my view, there is a real risk that the third plaintiff may receive an amount in damages that is less than the settlement amount.

Bearing in mind all the material that has been placed before me, in my opinion, the proposed settlements are compromises that are beneficial to, and in the best interests of the third plaintiff.

In the Civil Liability Act claim:

In the Compensation to Relatives Act claim: