Baglin-Hussien v Northern NSW Local Health District

File Number(s): 2023/75852

Publication restriction: No

EX-TEMPORE JUDGMENT - REVISED

1. This matter has been listed before me for approval of a settlement reached between the parties. Approval is required because the plaintiff is under a legal incapacity. Section 76 of the Civil Procedure Act 2005 (NSW) applies.

2. The application is supported by an affidavit of Mr Jonathan Tannous dated 22 August 2025, and an affidavit of Ms Robyn Baglin dated 21 August 2025. Mr Tannous is a solicitor acting for the plaintiff. Ms Baglin is the plaintiff’s mother.

3. Mr Tannous’s affidavit contains a comprehensive history of the matter and an explanation of the liability and damages issues which face the plaintiff. In addition to the denial of negligence, the plaintiff also has to deal with a limitation point, the proceedings having been started out of time.

4. Schmidt AJ recently summarised the applicable principles in Sieradzki v Sydney Local Area Health District [2025] NSWSC 958, at [5]:

“There is no issue about the applicable principles. They include that:

(1) The Court’s function is protective and requires consideration to be given to what is in the incapacitated person’s best interests: Permanent Trustee v Mills [2007] NSWSC 336 at [29]; and

(2) Consideration must thus be given to the prospect of a more favourable judgment being obtained at trial: Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 and authorities discussed at [30]-[40].”

5. On 25 January 2007, Ms Baglin had an obstetric ultrasound which showed that she was pregnant with diamniotic dichorionic twins. This means that each twin had its own chorionic and amniotic sac. A CTG (cardiotocography) at Lismore Base Hospital on 30 January 2007, indicated difficulty detecting the plaintiff. On 1 February 2007, Ms Baglin came back to the hospital. Labour had commenced. The plaintiff was delivered after a long period of foetal bradycardia, which is a very slow heart rate.

6. The plaintiff required lengthy bag and mask ventilation before spontaneous respiration took over. He was transferred by helicopter to the Royal Brisbane & Women’s Hospital. On arrival at the hospital the plaintiff was ventilated in order to manage his seizures. On 7 February 2007, an MRI scan of the plaintiff’s head showed extensive ischaemia involving both cerebral hemispheres. This was consistent with severe hypoxic ischaemic injury.

7. Mr Tannous described the plaintiff as follows:

“The Plaintiff suffers developmental delay and has been diagnosed with spastic quadriplegic form of cerebral palsy at GMFCS Level IV. The Plaintiff is currently unable to walk unaided and has severe speech delay. The Plaintiff has also been diagnosed with intellectual disability.”

8. GMFCS is a classification system for gross motor function. Level IV indicates a severe disability usually associated with being confined to a wheelchair.

9. Obviously, the plaintiff has had, and will have, significant care needs. His life expectancy is the subject of dispute, with the range being from about 32 years to a normal life expectancy, which for an 18-year-old male is currently about 69 years.

10. The plaintiff’s case, on liability, is that the hospital staff should have detected foetal distress so that a decision would have been made to perform a caesarean section to facilitate the birth of the plaintiff.

11. The CTG performed on 30 January 2007, is now said to be unreadable because of the passage of time. This is a classic example of the importance of a limitation period and what might occur if it is exceeded.

12. The defendant, besides putting the plaintiff to proof of negligence, also relies on a defence under s 5O of the Civil Liability Act 2002 (NSW). Section 5O(1) states:

A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

13. Expert opinion relied upon by the defendant is to the effect that:

14. “… It is common for the CTG recording of the second twin to show decelerations and periods of bradycardia after delivery of the first twin …”

15. “Furthermore, the period of foetal bradycardia was recognised, and lead to immediate intervention to expedite delivery.”

16. “The management of Robyn’s labour was in keeping with the approach that would be widely used for intrapartum management of a dichorionic diamniotic twin pregnancy.”

17. “This approach remains the same in 2025 as it was in 2007.”

18. I have read the confidential advice of counsel concerning prospects of success on liability, and pointing out in respect of quantum, not only the differences in opinions but also the important effect that a finding of a reduced life expectancy will have on future expenses.

19. The terms of the consent judgment include an amount allowed for costs. I have no doubt that preparation of this matter would have required substantial work including disbursements relating to the collection of evidence. Although not stated in the terms of the consent order Mr Tannous’s affidavit informs me that $35,578.49 will be deducted from the judgment sum in respect of costs.

20. I will specifically note this amount because of its absence from the terms.

21. There will also need to be monies deducted to repay Medicare, and also in respect of the NDIS. The consent orders require the balance of monies, after allowed deductions, to be paid into court.

22. I am satisfied that the settlement properly reflects the necessary compromise and is in the best interests of the plaintiff.

23. Accordingly:

24. The settlement is approved.

25. Orders are made in accordance with the Consent Orders dated 11 July 2025.

26. Noted that the amount to be deducted from the judgment sum in respect of solicitor client costs will not exceed $35,578.49.

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