Butler by her tutor Biffin v Mid North Coast Local Health District

Representation: Counsel:
R O’Keefe SC (Plaintiff)
K Young (Plaintiff)
R Sergi (Defendant)
D Munro (Cross-Defendant)
Solicitors:
Carroll & O'Dea Lawyers (Plaintiff)
Hicksons Lawyers (Defendant)
HWL Ebsworth Lawyers (Cross-Claimant)

File Number(s): 2022/172943

Publication restriction: No

ex-tempore JUDGMENT - Revised

1. The plaintiff was born in 2016. In December 2017, and January 2018, the plaintiff was brought to the defendant hospital by her mother for treatment. In these proceedings the plaintiff, who sues by her mother and tutor, alleges that the treatment she received was negligent. The negligence includes the alleged misinterpretation of Magnetic Resonance Imaging (MRI) which had been performed upon the plaintiff.

2. The plaintiff had presented to the hospital displaying a change in her ability to walk after an episode of high fever.

3. There are cross-claims filed by the defendant against the radiology company which performed the MRI on behalf of the defendant and by the radiology company back against the defendant.

4. The parties made a number of efforts to resolve the case which were ultimately successful on 1 May 2025. This led to the matter coming before me today for approval of the settlement pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW). Approval depends on whether or not the settlement is in the best interests of the plaintiff.

5. The proposed consent orders are silent on the cross claims. However, I am satisfied that there is good reason for that position to have been taken.

6. The application for approval is supported by an affidavit of Mr William Madden dated 20 June 2025, and an affidavit of Ms Kate Biffin dated 23 June 2025. Mr Madden is the plaintiff’s solicitor. Ms Biffin is the plaintiff’s litigation tutor and also her mother.

7. I have been provided with a confidential memorandum of advice prepared by senior counsel (Mr Richard O’Keefe SC) and junior counsel (Ms Katharine Young).

8. All of Mr Madden, Mr O’Keefe SC and Ms Young recommend approval of the settlement.

9. The defendant has admitted that it owed a duty of care to the plaintiff but has denied negligence. The essential issue on negligence seems to depend on what was the correct diagnosis of the plaintiff when she presented to the hospital; was she suffering from acute flaccid myelitis (AFM) or transverse myelitis (TM) or myelin oligodendrocyte glycoprotein antibody disease (MOGAD).

10. The plaintiff’s position is that the correct diagnosis was TM.

11. The primary issue on causation seems to be whether, if a correct diagnosis had been made (assuming the diagnosis was incorrect), the commencement of treatment earlier than it occurred would have made a difference to the plaintiff’s ongoing condition. The ‘earlier’ is a matter of days and the expert opinion is far from one way.

12. The defendant’s position is that the most likely diagnosis is AFM, in which case, opine the defendant’s experts, earlier treatment would have made no difference. The primary expert for the defendant is Associate Prof Kornberg who is acknowledged to be a well-respected expert in the field.

13. The plaintiff therefore faces two obstacles before success: what was the diagnosis, and would the commencement of treatment five days earlier have made any difference. The second obstacle also contains the element of measuring the extent of the difference that earlier treatment would have made.

14. The result of the above is that a significant compromise on liability is called for. There is no very recent description of the plaintiff’s condition. However, the following description was given in January 2023 by Dr Sandra Johnson, a consultant developmental paediatrician, who stated:

“Grace's current condition is that as a 6 year old girl she has mobility impairments that relate to the significant shortening of her left leg following neurological incident outlined in the history, namely that of transverse myelitis of her spinal cord in 2017. Her left leg impairments include the following:

• Significant shortening of her leg resulting in the need to wear a full AFO to support her lower leg

• Awkwardness in her gait

• Sensory and motor deficits of her left leg

• Inability to run

• Inability to cover long distances due to the leg weakness and length discrepancy and thus the need to use a wheelchair to cover long distances

• She has had open reduction of her left hip and osteotomy surgery to her femur and pelvis

• She will require leg length surgery in the future, and surgery may be required on more than one occasion as she grows taller

Grace also has psychological consequences of her physical impairments as described above. She recognises that she is different in ability to her peers and she has started questioning this with her mother. She is vulnerable to being bullied or to insensitive comments by children that may not be empathic or have an understanding of disability. She needs psychological counselling and guidance to deal with issues related to her impairments.

As Grace moves into her teenage years, she will require ongoing support for emotional vulnerability related to her physical impairments.”

15. The parties have agreed on a settlement sum and a specific amount for party–party costs. Mr Madden’s affidavit sets out the deductions that will be made from the settlement sum. They include payments to Medicare, to a private health insurer and to the National Disability Insurance Agency. Mr Madden has requested the insurer and the agency to reduce the amounts they have claimed. He says he is confident that the insurer will agree, but less confident in respect of the agency. If agreement on the proposed deductions is reached the total amount that will come out of the settlement is $49,157.78. If there is no agreement at all, the amount will be $106,534.55. If only the insurer agrees to the reduction, the total amount will be $100,532.59.

16. In addition to the above deductions a further amount of $70,500 will be deducted from the net judgment sum on account of costs not included in the party-party assessment.

17. In her affidavit Ms Biffin says that she has read the affidavit of Mr Madden including those parts which set out the deductions. She also says that she understands there may be a period of time during which the plaintiff is not entitled to Centrelink benefits. Nevertheless, she asks the court to approve the settlement of the claim.

18. I would have preferred more certainty on the amount of the deductions. However, because of the compromise dictated by proving liability, and in particular causation, I am of the view that the settlement, even if the deductions are at their highest, is in the best interests of the plaintiff. Even after the deductions the plaintiff will receive a relatively significant sum of money which would be put at risk if she was unsuccessful in a hearing. I do not think, taking into account her best interests, I could justify refusing approval.

19. I understand the settlement sum is a little under 50% of the agreed quantum of damages. The damages would include non-economic loss, past and future care (including home modifications), medical expenses and significant economic loss because the plaintiff will be confined to sedentary work. In my view the compromise is an accurate reflection of the risks facing the plaintiff in pursuing the litigation.

20. Accordingly, I will make the relevant orders in the proposed Consent Judgment.

Orders

1. Orders 2, 3, 4, 5, 8, 9, 10, 11 and 12 in the Consent Judgment dated today and initialled by me.
2. I note the litigation tutor’s acknowledgements as set out in paragraphs 6 and 7 of the Consent Judgment.
3. I note the undertaking given by the litigation tutor set out in paragraph 11 of the Consent Judgment.

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