Molony v Sydney Local Health District [2020] NSWSC 1050 (17 August 2020)

Last Updated: 20 August 2020

Supreme Court New South Wales

Case Name:	Molony v Sydney Local Health District
Medium Neutral Citation:	[2020] NSWSC 1050
Hearing Date(s):	31 July 2020
Date of Orders:	17 August 2020
Decision Date:	17 August 2020
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Settlement approved
Catchwords:	MEDICAL NEGLIGENCE – infant settlement – approval – whether proposed settlement in the best interests of the infant plaintiff – settlement approved
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Isabel Molony by her tutor Timothy Molony (First Plaintiff) Timothy Molony (Second Plaintiff) Katyana Tkachenko (Third Plaintiff) Sydney Local Health District (Defendant)
Representation:	Counsel: D Graham SC (Plaintiffs) M Windsor SC (Defendant) Solicitors: Maurice Blackburn (Plaintiffs) Makinson d’Apice Lawyers (Defendant)
File Number(s):	2016/381763
Publication Restriction:	Nil

JUDGMENT

1. HIS HONOUR: Isabel Molony suffers from cerebral palsy manifesting as hypotonia, global developmental delay, profound speech and language impairment as well as intellectual impairment. These problems were sustained at the time of her birth in April 2012. Isabel has commenced the present proceedings by her tutor in which she alleges that her injuries and disabilities are the result of failures by the defendant to ensure that she was delivered in a timely way, and earlier than she was, when there were indications of neonatal distress that should have alerted the attending medical staff to hasten delivery.
2. Isabel’s case raises a series of difficult and complicated issues in relation to both breach of duty and causation. With respect to the former, there are two issues. First, whether assessment of foetal well-being by foetal scalp blood sampling should have taken place hours earlier in labour and in particular after meconium-stained liquor amnii was observed. Secondly, what reasonable responses were required from about 20.45 to 20.50 on the day of delivery when the CTG trace became pathological.
3. With respect to the question of causation, there are four issues. These are first, whether she suffered an hypoxic-ischaemic insult during labour. Secondly, whether she suffered a neonatal hypoxic-ischaemic encephalopathy as the result of an hypoxic-ischaemic insult. Thirdly, whether she suffered permanent brain damage as a result of the hypoxic-ischaemic insult. Finally, whether foetal scalp blood sampling earlier in labour or earlier delivery towards the end of labour would have made a material difference to the outcome.
4. The parties have now agreed to settle this litigation subject to approval by the Court. In support of the application, I have been provided with a comprehensive confidential memorandum of advice from Mr Graham SC. It is unnecessary to descend into the detail of that opinion. It is sufficient to note that Mr Graham is of the very strong opinion that the risks for Isabel that attend the pursuit of a contested litigated outcome are significant and that the amount of the proposed settlement in the circumstances is extremely beneficial to Isabel. That is for the reason that there are substantial differences of specialist opinion with respect to almost every liability issue that is likely to arise for determination. Isabel’s prospects of success on all or any of these issues cannot be guaranteed. In Mr Graham’s opinion, the risks of proceeding are disproportionate to the benefits of settling.
5. I agree. In forming that view I have had regard to the specialist medical opinions annexed to the affidavit of Elizabeth Brookes affirmed on 23 July 2020. I have also taken account of the matters deposed to by Isabel’s parents, Timothy Molony and Katyana Tkachenko, in their affidavits affirmed on 24 July 2020.
6. Having regard to this material I am of the view that the proposed settlement is in the best interests of Isabel and I propose to approve it. In these circumstances, I will make the following orders:

(1) I note that this matter has settled subject to approval in accordance with the terms of a Consent Judgment signed by the legal representatives of the parties.

(2) I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005.

(3) I make orders in accordance with paragraphs 1 to 10 inclusive of that Consent Judgment which for identification I will initial and place with the papers.

(4) I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the judgment sum referred to in paragraph 1 of the Consent Judgment, less any authorised deductions for which it specifically or by necessary implication provides, be paid into Court for payment out thereafter to the NSW Trustee & Guardian or as the Court may upon application made pursuant to s 77(3) of the Act otherwise direct.

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