Supreme Court New South Wales Medium Neutral Citation: Taylor v Central Coast Local Health District [2024] NSWSC 230 Hearing dates: 7 March 2024 Date of orders: 7 March 2024 Decision date: 07 March 2024 Jurisdiction: Common Law Before: Campbell J Decision: (1) Judgment in favour of the defendant. (2) No order as to costs with the intention that each party bear its or her own costs. Catchwords: CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – financial position of plaintiff's mother relevant to consideration of plaintiff's interests – settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW), s 76(4) Category: Principal judgment Parties: Victoria Taylor (Plaintiff) Central Coast Local Health (Defendant) Representation: Counsel: P Beale (Plaintiff) M Crollos (Solicitor) (Defendant) Solicitors: CMC Lawyers (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2022/303829 JUDGMENT 1. I am asked to consider approval of a settlement of a medical negligence case under s 76(4) Civil Procedure Act 2005 (NSW). The plaintiff, who I will refer to as Victoria meaning no disrespect, claims damages through her mother, Tamara Solly, as tutor for a birth injury which has, on the plaintiff's case, resulted in catastrophic disabilities. I need not go through all of the disabilities that Victoria is beset with, but it is sufficient to record that they involve profound cerebral and neurocognitive deficits and physical disabilities. 2. The case was originally cast as one of hypoxic brain injury due to asphyxia during the very long, and I am sure traumatic, labour of Victoria's mother and very difficult birthing for Victoria. That theory of the case, if I may put it that way, received the support of Professor Mike O'Connor and Associate Professor George Williams. 3. It has since emerged that although each of those highly qualified experts bases his opinion on what they regarded as the probabilities having regard to the circumstances of Ms Solly's labour and Victoria's birth that I have referred to in general terms, the superior view which has since emerged is that there is an absence of objective evidence in the contemporaneous material of Victoria suffering hypoxic brain injury during her birth. Although her birth was distressing and she was treated as requiring critical care during the first three days of her life, the balance of the expert evidence does not support other than that her vital signs and the results of radiological and other testing were within a normal range. It has since emerged, not only in the defendant's case but also from other highly qualified experts approached by the plaintiff, that the better view is that Victoria's injuries and disabilities are due to congenital and developmental factors. It is the case that on the evidence put before me for this approval, while it is difficult for anyone to be conclusive about those matters, the superior view and, I repeat, there is no objective contemporaneous evidence of birth injury. 4. Any parent who has had the struggle that raising a severely disabled child presents is doubtless faced with difficult choices. One such example faced by Ms Solly in this case, while perhaps at one stage there appeared to be some avenue for Victoria to obtain compensation which would help support her in life was coming to the conclusion that the prudent decision to take advantage of the defendant's offer to bear its own costs which would not be insignificant at all, in exchange for judgment in its favour. 5. Given what I have said about the absence of persuasive evidence of birth injury, it is unnecessary for me to consider in detail the case that had been built and framed in negligence. I do, however, interpolate that case was largely put forward as there should have been intervention in Ms Solly's labour at a much earlier stage when there was an extended period of distress on Victoria's part during the labour; that intervention consisting of a relatively early decision to undertake a caesarean section which in the end was not considered necessary. 6. From the Court's point of view, my obligation is to make the decision which it appears to me that will be in Victoria's best interests. It is always a difficult decision for the Court when terms are put forward on this basis. However, it seems to me that the financial position of Ms Solly as Victoria's mother is not irrelevant to Victoria's best interests. Moreover, I have had the considerable advantage of the Confidential Advice of Mr Beale of counsel, a very experienced advocate who practices extensively in this area, in relation to the issues and their likely outcome. 7. In all the circumstances, I am persuaded that what is proposed is in Victoria's best interests for the reasons I have sought to explain, and I will accordingly approve of the settlement under the provisions of s 76(4) Civil Procedure Act. I make the following orders by consent: 1. Judgment in favour of the defendant. 2. No order as to costs with the intention that each party bear its or her own costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2024