Cleary v Illawarra Shoalhaven Local Health District

HIS HONOUR: Although the statement of claim commencing these proceedings, filed on 6 June 2019, somewhat remarkably does not say so in terms, I will assume from other available material that the plaintiff, Brianna Cleary, was born in December 2013 at Wollongong Hospital and suffers from global developmental delay. The plaintiff alleges that her condition is the result of the negligence of the “defendants”, even though only one defendant, the Illawarra Shoalhaven Local Health District, is sued.

The statement of claim alleges that the defendant breached its duty of care to the plaintiff “by failing to care for and treat [her] adequately”. Two particulars of that allegation are given:

The statement of claim, as opposed to some medical reports to which reference will shortly be made, gives no indication of what is said to be the relationship between the plaintiff’s global developmental delay and the two specified particulars of negligence.

Be that as it may, the matter eventually made its way to me as an application for approval of a settlement in a case where the plaintiff is an infant. By the time that occurred, some better explanation of what the plaintiff alleges had been provided in an affidavit affirmed by Keegan Behrens on 12 June 2024. The following (curiously numbered) paragraphs should be noted:

The proposed settlement amount is $200,000. The particulars filed in support of the claim itemise heads of damage amounting in total to sums far in excess of that figure. On one view, expressed by counsel whose confidential written opinion on settlement has been provided to me, the undiscounted value of the plaintiff’s claim may be far greater. Regrettably, the “complex medical and factual issues” to which Mr Behrens refers in his affidavit are nowhere described in either his affidavit or in any vaguely comprehensible analysis from counsel. On the contrary, Mr Behrens’ affidavit annexes more than 300 pages of material that does not explain in a principled manner why the plaintiff’s claim should be discounted in the way proposed.

Those documents, which include irrelevant and unnecessary copies of CVs and resumes, also include medical opinions from a number of medical specialists retained by the parties. No adequate summary of these opinions has been provided in support of the application for approval at all. It therefore fell to me to extract the relevant portions of the reports in order to start to understand the so-called complex medical and factual issues that they discuss. A basic but essential starting point seems to me to be a summary of that material, as follows.

Professor O’Connor is an eminent specialist and academician in the field of obstetrics and gynaecology. His qualification to offers opinions in this case is undoubted. He was asked by the plaintiff’s lawyers to provide answers to a series of questions. These questions and his answers are as follows:

Professor Chapman is a specialist obstetrician and gynaecologist with significant and well-regarded professional and academic qualifications. He was retained by the defendant to provide an opinion in these proceedings. It is as follows:

Associate Professor Evans provided a report at the request of the defendant’s lawyers. He is a Senior Staff Specialist in Neonatal Medicine at Royal Prince Alfred Hospital and a Clinical Associate Professor at the University of Sydney. He was asked for his opinion on the likely cause of the plaintiff’s current condition. He responded as follows:

Associate Professor Scheinberg is a paediatric rehabilitation specialist. He was asked for his views concerning the plaintiff’s condition by the defendant’s lawyers. He gave the following opinion:

Professor Delatycki is a consultant clinical geneticist. He was retained by the defendant’s lawyers to advise on the question of whether the plaintiff’s condition had a genetic cause. Testing finally to determine that possibility has so far not been conducted.

Dr Ryan is a consultant paediatric neurologist. She was asked by the defendant’s lawyers for her opinion with respect to whether the plaintiff had suffered a brain injury as follows:

Dr Harbord is an eminent paediatric neurologist. He provided two reports at the request of the plaintiff’s lawyers. His second report dealt with the relationship between birth asphyxia and acute cerebral abnormality and the relevance or otherwise of a series of essential and non-essential criteria for use in assessing the existence of a causal connection between foetal distress and neonatal encephalopathy. It is unnecessary for present purposes to analyse Dr Harbord’s consideration of these criteria.

However, Dr Harbord’s first report contains a series of questions and answers relating to the assessment of possible causes of the plaintiff’s current condition. These are as follows:

In my experience over many years dealing with applications such as this, I have become accustomed to being provided with detailed and closely reasoned analyses of the competing expert medical evidence and a confidential advice on settlement explaining why the proposed sum is recommended or why it is not. I have certainly been given a document described as “Plaintiff’s Counsel’s Confidential Opinion” which unremarkably contains an assertion that “there is a real contest as to liability and causation”. I have not been given any assistance on the question of why the settlement is appropriate. For example, arriving at a recommendation concerning the reasonableness and appropriateness of a proposed settlement is a function of the estimated full value of the claim multiplied by the percentage risk of success or failure. I have been provided with neither.

Nor is it the case that I failed to make plain to counsel what my expectations were in this regard, as I trust the following excerpts from the transcript of proceedings before me on 22 September 2025 make plain:

It will by now be apparent that my expectation that I would be in a position finally to deal with the matter on 7 October 2025 was a triumph of hope over experience. I am not satisfied that I have sufficient information or that I have received adequate assistance to decide whether the proposed settlement is in the best interests of the plaintiff. In the circumstances I decline to approve it. In doing so I should not be taken to have decided that the proposed settlement sum may not turn out to be appropriate. I am simply not able to form a view on the question as presently advised. It would accordingly be open to the parties to make a further application for approval if so advised.

In reaching my decision, I have also had regard to the further “Confidential Opinion” from counsel for the plaintiff delivered by email to my chambers yesterday morning.