Jackson by his next friend Laurellen Davies v Nepean Blue Mountains Local Health District trading as Blue Mountains Hospital [2023] NSWSC 1474

Supreme Court New South Wales

Medium Neutral Citation: Jackson by his next friend Laurellen Davies v Nepean Blue Mountains Local Health District trading as Blue Mountains Hospital [2023] NSWSC 1474 Hearing dates: 28 November 2023 Date of orders: 29 November 2023 Decision date: 29 November 2023 Jurisdiction: Common Law Before: Lonergan J Decision: Settlement approved. Catchwords: CIVIL PROCEDURE – medical negligence – infant plaintiff – claim statute barred – risks of litigation – whether proposed settlement in best interests of plaintiff Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Elliot v Diener (1978) 21 ACTR 21 Category: Principal judgment Parties: Matthew Jackson by his next friend Laurellen Davies (Plaintiff) Nepean Blue Mountains Local Health District trading as Blue Mountains Hospital (Defendant) Representation: Counsel: A Campbell (Plaintiff) S Kettle (Defendant)

Solicitors: Gerard Malouf & Partners (Plaintiff) Makinson d'Apice Lawyers (Defendant) File Number(s): 2020/00126289 Publication restriction: Nil

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JUDGMENT 1. Matthew Jackson was born at Blue Mountains Hospital on 12 February 2008. In a Statement of Claim filed on his behalf on 28 April 2020 it is alleged that the hospital mismanaged his mother's antenatal care and labour, and Matthew's delivery, causing him to suffer a hypoxic brain injury which in turn led to developmental delay and intellectual disabilities. 2. The hospital denied it was negligent, denied it was responsible for Matthew's disabilities and pleaded that the claim was commenced outside the 12 year long-stop limitation period and so the claim was not maintainable. 3. Although the solicitors for Matthew in June 2020 filed a notice of motion seeking the limitation period be extended, this motion was not pressed. 4. The proceedings were the subject of a mediation in 2023 after which a compromise settlement was agreed in the sum of $500,000.00 plus party/party costs and disbursements. 5. Dr Schmidt, an expert obstetrician, asserted that the risk factors associated with Matthew's mother's pregnancy meant that she should have been induced earlier and this would have avoided the placental infection and the hypoxaemia Matthew suffered being delivered two weeks post term. 6. There is a factual dispute about what Matthew's mother was advised about induction when the pregnancy continued after 40 weeks. There is evidence that an intra-hospital review concluded that there were faults in the management of her labour and delivery, the dating of the pregnancy, and the advice she was given. The hospital's case is that the mother was properly advised but refused to be induced, as is her right. 7. The hospital's obstetric expert Dr Challis explained in his reports that there was no negligence and that the assertions by the plaintiff's expert regarding placental infection were not suggestive of anything causative arising during labour. Matthew was born with normal Apgar scores and was in a good condition, suggesting that his problems were not caused by an event during labour. Dr Challis explained that the funisitis and chorioamnionitis (infections of the umbilical cord and placenta that can effect blood gas exchange between the mother and baby) was likely going on for some time, and there is no way that staff would have known about it in the absence of clinical signs in the mother or foetus. 8. Dr Evans, neonatologist, agrees with Dr Challis that the clinical evidence is consistent with a prolonged evolving sub-acute hypoxaemia from post-term placental insufficiency. 9. Matthew had seizures at two hours of age and was transferred to Liverpool Hospital. Later investigation by way of EEG and ultrasound showed no abnormality. His speech was delayed. He was diagnosed with autism spectrum disorder at four years old. He had speech therapy assessment and assistance up to age nine. 10. Dr Harbord, paediatric neurologist who assessed Matthew in October 2022 noted he was in good health, in Year 9 at Springwood High School and had some ongoing support with a learning support teacher. He preferred more hands-on subjects like P.E. and cooking rather than subjects like English and Maths. Matthew was thinking about being an electrician when he finished secondary school. Matthew could complete all activities of daily living and sports including running, swimming and bike riding. 11. There is a conflict between the expert opinions about whether Matthew has intellectual impairment or is just in the low range of average IQ, and conflict as to the cause of this. 12. I have read a confidential joint advice by Mr Cranitch SC and Mr Campbell. The advice highlights the difficulties with the case and in particular the issues of liability and the problems created by the expired limitation period. 13. The plaintiff's argument for extension of the limitation period past the long-stop bar in my opinion has very limited prospects of success and has the potential effect of an absolute bar to the case for Matthew succeeding at all. The supplementary confidential advice of Mr Campbell further expands on these problems. 14. There are significant areas of dispute on both liability and causation. It is clear why the compromise proposed is recommended by counsel and accepted by Matthew's mother. There is a real risk that the case sought to be made will fail altogether and so a significant compromise is appropriate. 15. I agree with and adopt what Blackburn CJ said in Elliot v Diener (1978) 21 ACTR 21 as to the way in which a compromise of this kind should be examined: "The test of benefit to the infant plaintiff is not whether the sum is adequate or reasonable. The matter is not to be decided by the plaintiff's own solicitor as if he were a judge awarding damages after a contested hearing. The question which counsel or solicitor for the plaintiff has to decide, when considering a compromise of the infant's claim, is whether the prospect of a greater sum by rejecting the present offer is good enough to outweigh, significantly, the risk of not getting any more. There may be various factors in such a decision, sometimes present and sometimes not; for example, the importance of termination of proceedings may be greater for some plaintiffs and insignificant for others. The question of costs, also, would usually be significant. The decision is peculiarly one for experienced counsel and solicitors. The opinion of the next friend will seldom be of any importance; never, indeed, unless he is carefully advised as to the real question to be decided, and in particular that his own interests are totally irrelevant." 1. Having carefully considered the countervailing expert evidence on liability, causation and damages, the problematic situation with the limitation period, and the clear and present risk of losing the case outright, I consider the proposed settlement is a satisfactory outcome for Matthew and I approve the settlement.