Head bht Head v South Eastern Sydney Local Health District

This is an application for judicial approval of a settlement pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW) (“the Act”). The approval is necessary because the first plaintiff is not yet 18 years of age and also has significant cerebral palsy. The first plaintiff was born on or about October 2016 and is presently nine years of age. She suffers from a variety of ailments that arise from the facts the subject of the proceedings.

The first plaintiff suffered a hypoxic ischaemic insult during labour and delivery at Sutherland Hospital on 20 October 2016. It is alleged that the staff at Sutherland Hospital failed to respond appropriately to foetal heart-rate abnormalities which were evident on continuous electronic foetal monitoring during labour, especially given the risks of an adverse outcome said to be due to the first plaintiff’s mother being of an advanced maternal age of 37 years and the fact that the pregnancy was brought about through IVF.

Before me are the following exhibits. Exhibit 1 is a confidential advice of Mr Duncan Graham SC dated 2 December 2025, and an affidavit of Nicola Celeste Whiting affirmed on 2 December 2025 and an affidavit of Andrew Head affirmed on 3 December 2025, he being the plaintiff’s tutor in the matter, were read in the proceedings.

In an application for approval of settlement pursuant to s 76(3) of the Act, the Court’s function is protective. The ultimate question is whether the proposed settlement is beneficial to the interests of the plaintiff, or in her best interests: see Permanent Trustee Company Limited v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (“Mills”); Budini v Sunnyfield [2021] FCA 1540.

It is the Court’s responsibility to determine this question, but with the assistance of confidential advice provided by counsel for the plaintiff: see Mills at [21]; Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 at [27] (“Scandolera”).

In its determination, the Court is to consider the “advantages and disadvantages of the litigation continuing not only in terms of whether the plaintiff might secure a more advantageous award from the Court at trial, but also issues such as the prospects of an appeal, and the costs and pressures imposed upon the plaintiff if the litigation were to continue”: Scandolera at [29].

The tutor should also assent to the compromise, which has occurred here.

I have carefully considered the opinions and conclusions of counsel and the confidential advice. I have also taken into account the matters and opinions expressed by Ms Whiting and Mr Head in their respective affidavits, as well as the advantages and disadvantages of this litigation continuing. There is always, of course, a risk that a plaintiff may not succeed in an action or that she will receive an amount in damages that is less than the settlement amount, bearing in mind causation of damages issues.

Taking into account all the material that is placed before me, in my opinion, the proposed settlement is a settlement that is beneficial to and in the best interests of the first plaintiff.

I make the following orders: