Duncan v Albury Wodonga Health

1. [1]

   This is an application for judicial approval of a settlement pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW) (“the Act”). The approval is necessary because the first plaintiff brings an action pursuant to the Compensation to Relatives Act 1987 (NSW) (“the CRA”) on his behalf and on behalf of his two sons, Henry James Duncan (born in March 2021 and presently 4 years of age) and Louis William Duncan (born in March 2023 and presently 2 years of age).

Background

1. [2]

   The first plaintiff is the widower of the late Sarah Maria van Meurs (the deceased). He brings an action pursuant to the CRA and also for mental harm pursuant to the Civil Liability Act 2002 (NSW) (“the CLA”), the latter of which has settled. The second plaintiff is the deceased’s father. The third plaintiff is the deceased’s mother and the fifth plaintiff is the deceased’s brother. Their claims for mental harm pursuant to the CLA have also settled. Their settlements do not require court approval, and I will make orders by consent in each of their cases. The first plaintiff has also settled his claim for mental harm pursuant to the CLA, and I will make orders by consent to that effect.

2. [3]

   On 31 March 2023, at the age of 36 years and ten days following the birth of Louis, Sarah tragically died, allegedly after the defendant’s employees administered unnecessary anticoagulant medication (in combination with antiplatelet medication) to her following a diagnosis of spontaneous coronary artery dissection which resulted in an intercerebral bleed and death. Thirteen particulars of negligence are alleged against the defendant, who controlled and managed the Albury Base Hospital, all of which are denied.

3. [4]

   After extensive negotiations, the first plaintiff and the defendant have reached a proposed settlement with respect to the CRA claim and the matter is now before me for approval of that settlement so far as it concerns the amounts to be apportioned to the first plaintiff’s young sons.

4. [5]

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

   1. (1)

      An affidavit of Robert James Duncan affirmed on 2 December 2025;

   2. (2)

      An affidavit of Robert James Duncan affirmed on 9 December 2025;

   3. (3)

      An affidavit of Robert James Duncan affirmed on 10 December 2025;

   4. (4)

      An affidavit of William James Madden, the first plaintiff’s solicitor, sworn on 4 December 2025 with an exhibit annexing approximately 375 pages of medical and expert evidence and other records; and

   5. (5)

      A confidential advice of Mr O’Keefe SC and Ms Young of counsel dated 1 December 2025.

Relevant principles

1. [6]

   In an application for approval of a settlement pursuant to s 76(3) of the Act, the Court’s function is protective. The ultimate question is whether the proposed settlement is beneficial to the interests of the person under a disability (i.e., the deceased’s children), or in their best interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (“Mills”) at [29]; Budini v Sunnyfield [2021] FCA 1540 at [10].

2. [7]

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

3. [8]

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

4. [9]

   The first plaintiff, who brings the CRA action also on behalf of his sons, should also assent to the compromise, which has occurred here.

Consideration

1. [10]

   The defendant has not admitted that it breached its duty of care to the deceased or that any breach caused her death. Indeed, the expert evidence on both breach of duty and causation is highly contentious. Furthermore, there are significant disputes between the first plaintiff and the defendant as to the quantum of damages he ought to receive pursuant to the CRA. It is fair to say that the law is uncertain in respect of what damages might be available, and there must be a significant prospect of an appeal in the event of the first plaintiff’s success at first instance.

2. [11]

   With respect to the claim for financial dependency pursuant to the CRA, the first plaintiff’s evidence demonstrates that the deceased worked as a town planner at Albury City Council. At the time of her death, the deceased apparently intended to take maternity leave and return first to work part-time, and then to full time work when the baby turned 1 year of age. The deceased had an excellent work history and I do not doubt that she would have excelled in her chosen profession. There was a contemporary division of labour between the first plaintiff and the deceased in their household, in the sense that both took an active interest in their children and jointly contributed their wages to the welfare of the family. The first plaintiff and the deceased had a loving partnership which dated from 2017, which had every prospect of being long-lasting.

3. [12]

   I have carefully considered the opinions and conclusions of senior and junior counsel in the confidential advice. I have also taken into account the matters and opinions expressed by Mr Madden and Mr Duncan in their respective affidavits, as well as the advantages and disadvantages of this litigation continuing.

4. [13]

   In my view, there are risks of success on both breach of duty and causation and a risk that the first plaintiff may receive an amount in damages that is less than the settlement amount.

5. [14]

   Taking into account all the material that has been placed before me, in my opinion the proposed settlement and the allocations to be made to the first plaintiff’s sons is a compromise that is beneficial to, and in the best interests of, the children of the first plaintiff.

6. [15]

   The first plaintiff will soon move to Adelaide from Albury with his sons. He wishes for his sons’ allocations from the CRA action to be invested with a private trustee, TPT Wealth Pty Limited, who are situate in Adelaide. I am satisfied on the evidence before me that it would be appropriate and beneficial for an order to be made to that effect.

Orders

1. [16]

   I make the following orders:-

   1. (1)

      Judgment for the first plaintiff in the proceedings for damages for mental harm in accordance with paragraph 1 of the Consent Judgment dated 18 November 2025.

   2. (2)

      The settlement recorded in paragraph 2 of the Consent Judgment dated 18 November 2025, signed by the legal representatives for the parties, is approved pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).

   3. (3)

      Judgment for the first plaintiff in the proceedings under the Compensation to Relatives Act 1987 (NSW) in accordance with paragraph 2 of the Consent Judgment dated 18 November 2025.

   4. (4)

      Orders in accordance with paragraphs 9 and 10 of the Consent Judgment dated 18 November 2025.

   5. (5)

      Orders in accordance with paragraphs 5, 6, 7, 8 and 11 of the Consent Judgment are noted.

   6. (6)

      Pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW), the Court approves that there be paid the sum of $262,500 from the judgment in the proceedings under the Compensation to Relatives Act 1987 (NSW) to Master Henry Duncan.

   7. (7)

      Pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW), the Court approves that there be paid the sum of $287,500 from the judgment in the proceedings under the Compensation to Relatives Act 1987 (NSW) to Master Louis Duncan.

   8. (8)

      Pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW), the Court directs that the sum referred to in paragraph 6, above, namely $262,500 be paid to TPT Wealth Pty Ltd (TPT) as trustee for Master Henry Duncan to be held, invested and applied for the maintenance or advancement or benefit of Master Henry Duncan until 9 March 2039.

   9. (9)

      Pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW), the Court directs that the sum referred to in paragraph 7, above, namely $287,500 be paid to TPT Wealth Pty Ltd (TPT) as trustee for Master Louis Duncan to be held, invested and applied for the maintenance or advancement or benefit of Master Louis Duncan until 20 March 2041.

   10. (10)

       The confidential material placed before the Court on behalf of the first plaintiff will be retained by the Court in an envelope marked "only to be opened by order of a Judge".

   11. (11)

       With respect to the Second Plaintiff (William van Meurs), note the consent judgment signed by the parties and make the orders and notations in paragraphs 1 to 7 of the consent judgment.

   12. (12)

       With respect to the Third Plaintiff (Maria Berdina van Meurs), note the consent judgment signed by the parties and make the orders and notations paragraphs 1 to 7 of the consent judgment.

   13. (13)

       With respect to the Fifth Plaintiff (Benjamin Peter van Meurs), note the consent judgment signed by the parties and make the orders and notations in paragraphs 1 to 7 of the consent judgment.