Maltby v Sydney Children’s Hospitals Network [2023] NSWSC 542

Supreme Court New South Wales

Medium Neutral Citation: Maltby v Sydney Children's Hospitals Network [2023] NSWSC 542 Hearing dates: 22 May 2023 Date of orders: 22 May 2023 Decision date: 22 May 2023 Jurisdiction: Common Law Before: Garling J Decision: See [21] Catchwords: CIVIL PROCEDURE — approval of settlement pursuant to s 76 of the Civil Procedure Act 2005 — where plaintiff has not yet reached the age of majority — where claim arises out of spinal surgery performed negligently — whether to approve settlement — settlement approved Legislation Cited: Civil Procedure Act 2005 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Principal judgment Parties: Livia Maltby (P) Sydney Children's Hospitals Network (D) Representation: Counsel: I McGillicuddy (P) K Kumar (D)

Solicitors: Beilby Pouldon Costello (P) Makinson d'Apice (D) File Number(s): 2020/275485 Publication restriction: Not Applicable

EX TEMPORE JUDGMENT 1. This is an application for approval of a settlement which has been reached between the parties to this proceeding. Approval is required by s 76 of the Civil Procedure Act 2005 because the plaintiff has not yet reached her majority. The proceedings to date have been properly conducted by her father, who is her Tutor.

Background 1. The claim arises out of spinal surgery performed on the plaintiff at the Sydney Children's Hospital Randwick on 4 January 2019. There is no criticism of the fact that the surgery itself was necessary. The plaintiff suffered from a degree of spinal scoliosis. 2. Two and a half years after the surgery was conducted the defendant, the Sydney Children's Hospitals Network, which is the entity liable for the conduct of its employees, servants and agents of the Sydney Children's Hospital at Randwick, actually admitted that it owed the plaintiff a duty of care and that it had breached that duty of care . It also admitted that its breach of duty had caused or contributed to the plaintiff suffering, and continuing to suffer, injury, loss and damage. 3. The plaintiff, prior to the surgery, was suffering from a number of conditions which affected her life. Those conditions necessitated assistance with her activities of daily living and required the availability of constant care and supervision. It is unnecessary for me to describe in detail those conditions. They are well known to the parties. 4. The surgery of 4 January 2019 was thought appropriate because of some of those pre-existing disabilities. However, the surgery led to a spinal cord injury at T5 which had the effect of significantly exacerbating the pre-existing conditions and requiring, in my assessment, further spinal surgery. 5. The complications arising from the spinal surgery are permanent. As a consequence of the spinal surgery and the remedial surgery, which was performed quite promptly, the plaintiff remained in hospital for almost 100 days after her surgery. She has been diagnosed, as I said, with a spinal cord injury at T5 which is associated with incomplete paraplegia and neuropathic pain particularly in the right lower limb. Her injury arising from the surgery has been referred to as an AISD spinal cord injury. She has also been diagnosed with a Brown-Sequard injury to her spinal cord. The plaintiff now requires ankle/foot orthoses in order to mobilise independently. Notwithstanding her use of those, her interrupted gait has led to her being at risk of, and having, falls on numerous occasions. 6. Further surgery was performed in October 2020 which necessitated an extension of the spinal fusion previously undertaken, from the T3 level down to the L3/L4 level.