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Judge approves settlements for injured children
by Resolve Editor Kate Tilley
A NSW judge has approved “substantial” settlements against local health districts for two injured children.
Supreme Court Justice Richard Button did not disclose the settlement amounts to maintain the confidentiality of children who each were “coming into a significant sum of money”.
In both cases, he weighed the advantages and disadvantages of proceeding to trial instead of accepting the proposed settlements and agreed the settlements were in the best interests of each child.
In the Cooper case, a boy, now six, sustained cerebral palsy during his birth.
Central Coast Local Health District (CCLHD) accepted liability for professional negligence and the settlement achieved during mediation related to damages.
The boy has a permanent brain injury that manifests through muscular difficulties, a problem moving his mouth, a speech disorder that renders his pronunciation unclear, an inability to make skilled movements accurately, and attention deficit hyperactivity disorder. His difficulties will be ongoing.
Superficial arithmetical certainty
Justice Button was told most areas of dispute on damages had been resolved and the amounts were “towards the end of the spectrum” of those sought.
Counsel had emphasised that, “although calculations underpinning damages claims of this kind have a superficial arithmetical certainty, in truth that can never be the case”.
For example, Justice Button said the degree of free care provided by the boy’s parents was uncertain, as was life expectancy.
“Trying to estimate the needs for care of a young person stretching many decades into the future is certainly a matter of contestable opinion and impression.”
Because CCLHD had accepted liability, there was no “discount” within the settlement to allow for the possibility of complete failure of the claim.
Justice Button said litigation was uncertain and evidence may differ after cross-examination, so a “cautious approach” was required before electing to go to trial.
The boy’s father, who pursued the claim on his behalf, acknowledged the advantages of settling to avoid long-running litigation and make funds available for his son’s care.
Justice Button said the father was “motivated solely by a desire to do the best he can for his son in the circumstances” and he therefore unreservedly accepted the settlement.
Meningitis misdiagnosed
In the Cavanough case, an eight-year-old child’s father alleged professional negligence in misdiagnosing his daughter’s severe pneumococcal meningitis.
In 2016, when she was 16 months old, the girl became unwell at day care. Her mother took her to a GP, who started treating her for an ear infection. Two days later, the child was taken to hospital and treated initially for viral gastroenteritis.
However, she was suffering from the bacterial infection meningitis, an infection to the lining of the brain. Consequently, she sustained “significant cognitive impairments” and a kidney injury significant enough to require dialysis, and potentially a future kidney transplant.
Justice Button said the eight-year-old girl and her family now live in the United Kingdom, where some of the care she requires is provided free.
He said the negligence claim was founded on the proposition the treating doctors breached their duty of care by failing to consider meningitis earlier. However, counsel for the Sydney Local Health District argued that many qualified medical experts agreed the treatment was “perfectly reasonable” and no breach of the duty of care occurred.
Even if breach of duty were established, the infection developed very quickly, so treatment, even with an earlier diagnosis, may have been ineffectual, with the injuries still occurring.
Cognitive impairments
The particular bacterium was resistant to broad spectrum antibiotics, which would likely have been the first treatment. “Even if putative optimal care had been adopted, the [child] may well have suffered the injuries in any event,” Justice Button said.
It was also arguable that the kidney condition developed independently of the meningitis and could have caused the cognitive impairments.
“There is not only a very real issue about breach of duty of care, but also very real issues about causation.”
While the settlement sum was substantially less than that originally claimed, Justice Button said a “multitude of issues” made a cautious approach appropriate.
There were statutory “hurdles” in the NSW Civil Liability Act 2005 and failure at only one could mean failure of the entire claim.
If a significant claim failed completely, the unsuccessful party could be left with nothing but a substantial adverse costs order.
Resolve is the official publication of the Australian Insurance Law Association and
the New Zealand Insurance Law Association.
