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[2025] NSWSC 1192
General information, not legal advice.
Supreme Court of NSW
2025-10-14
Harrison CJ at CL
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Medium Neutral Citation: Cleary v Illawarra Shoalhaven Local Health District [2025] NSWSC 1192
Hearing dates: 22 September and 7 October 2025
Date of orders: 14 October 2025
Decision date: 14 October 2025
Jurisdiction: Common Law
Before: Harrison CJ at CL
Decision: See [17]
Catchwords: NEGLIGENCE – medical negligence – application for approval of a settlement – infant settlement – statement of claim – defendant alleged to have breached its duty of care – global developmental delay – whether the proposed settlement is in the best interests of the plaintiff – where statement of claim gives no indication of relationship between particulars of negligence and harm suffered – medical specialists retained by both plaintiff and defendant – competing expert medical evidence –where no adequate summary or analyses of medical opinions was provided to the Court to support application for approval – confidential advice on settlement provided – where Courts require assistance on the question of why the settlement is appropriate
Category: Procedural rulings
Parties: Brianna Cleary (Plaintiff)
Illawarra Shoalhaven Local Health District (Defendant)
Representation: Counsel:
K Pierce (Plaintiff)
B Bradley (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Makinson d’Apice Lawyers (Defendant)
File Number(s): 2019/176910
Publication restriction: Nil
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:
(a) failing to discontinue Syntocinon when overstimulation of the uterus and excessive, dangerous contraction levels became obvious; (b) failing to deliver the plaintiff via C-section at an earlier stage, given the clinical factors presented by the plaintiff, namely;
(i) being a small woman [sic!]; (ii) the large weight of the foetus; (iii) uterine hyperstimulation; (iv) maternal fever; and (v) saltatory CTG.
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:
“7. The plaintiff brought a claim for personal injury of neurodevelopmental delay arising out of foetal hypoxia alleged to have been caused by the plaintiff’s mother (and tutor), [the mother] being subjected to repeated episodes of hyperstimulation with oxytocin.
8. On [**] December 2023, the plaintiff’s tutor experienced spontaneous rupture of membranes and presented to hospital at about 02:00.
9. At 5:10 Syntocinon infusion was commenced to augment the tutor’s labour.
10. The plaintiff was born by way of Caesarean section at 19:45.
11. The plaintiff, by her tutor, commenced proceedings against the defendant for damages arising from the injuries sustained via statement of claim filed on behalf of the plaintiff in the Supreme Court of New South Wales on 6 June 2019.
The Claim
9. The plaintiff’s cause of action is against the Illawarra Shoalhaven Local Health District, who had management and control of the Wollongong Hospital who were responsible for the plaintiff’s delivery.
10. The plaintiff’s cause of action against the defendant involves complex medical and factual issues. Based on the medical evidence obtained on behalf of the plaintiff it is alleged that the defendant breached the duty of care owed to the plaintiff in accordance with the particulars of negligence particularised in the statement of claim filed on behalf of the plaintiff on 6 June 2019. The Statement of Claim is exhibited at KB-1.
11. The medical evidence obtained on behalf of the plaintiff suggests that:
(a) Once contractions have started, the foetus receives oxygenated blood from the mother during relaxation when uterine blood vessels are not squeezed and the umbilical cord is not compressed
(b) When the frequency of contractions becomes higher, there is less relaxation time which creates a risk of insufficient foetal oxygenation.
(c) The use of Syntocinon was appropriate to stimulate contractions, however, it resulted in hyperstimulation at 14:30.
(d) It was inappropriate to not cease or greatly diminish Syntocinon when uterine hyperstimulation occurred and severe tachysystole was encountered.
(e) A Caesarean section should have been performed at 14:30 which would have avoided permanent damage to the plaintiff.
(f) Hypoxic insult occurred prior to the time of delivery, meaning that good condition on delivery was not evidence to exclude a significant hypoxic insult.”
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.
“1. Was the use of Syntocinon with regard to the birth of Brianna? Was this appropriate in the circumstances? If not, why not?
Answer:
(a) The decision to use Syntocinon to augment the labour following spontaneous rupture of membranes was appropriate given that the mother was positive for Group B streptococcus.
(b) However the use of Syntocinon resulted in numerous episodes (28 panels) of excessive uterine contractions (≥6/10 minutes).
(c) Normally the relaxation time which is needed between contractions to restore foetal oxygenation is of the order of 60-90 seconds. That could not be achieved if there are more than 5 contractions every 10 minutes.
(d) There appeared to be no consciousness on the part of the labour ward staff that [the mother’s] uterus was being overstimulated and therefore the foetus was in jeopardy from foetal hypoxia.
(e) Unfortunately, the umbilical blood gases were not collected at delivery and this more probably than not would have demonstrated a foetal metabolic acidosis.
2. Given the height and weight of [the mother] and the size of Brianna, was the management of [her] pregnancy appropriate? Should a decision have been made earlier to perform a Caesarean section?
Answer:
(a) This was a small Filipino mother who was only 155cm tall. The estimated foetal weight at 34 weeks was at the 88th percentile (-2800g) which would mean that at 38 + weeks the predicted foetal weight would have been -3800g. In fact the actual foetal weight was 3945g which lies at approximately the 95th percentile).
(b) Those facts would suggest that the clinicians should not have subjected the mother to a protracted induced labour – particularly given the repeated episodes of uterine hyperstimulation which commenced at 09:40 on [**] December 2013 as well as the maternal fever which arose at 13:00 and a saltatory CTG commencing at 14:30 on [**] December 2019 followed by a rising baseline. At that stage the cervix was only 6cm dilated.
(c) More probably than not a Caesarean section should have been performed by 14:30 on [**] December 2013.
3. Is there evidence from the CTG’s to suggest an earlier delivery by way of Caesarean section was indicated?
Answer: Yes.
(a) See answer to question 2.
(b) There was uterine hyperstimulation associated with a saltatory CTG at 14:30 and a maternal fever.
(c) The cause of a saltatory pattern is probably the result of instability between sympathetic and parasympathetic nervous systems resulting in rapidly evolving hypoxia to the central nervous system.
(d) Increased variability in the baseline FHR is present when the oscillations exceed 25 bpm. This pattern is sometimes called a saltatory pattern and is usually caused by acute hypoxia or mechanical compression of the umbilical cord.
(e) This pattern is most often seen during the second stage of labour.
(f) The presence of a saltatory pattern, especially when paired with decelerations, should warn the physician to look for and try to correct possible causes of acute hypoxia and to be alert for signs that the hypoxia is progressing to acidosis.
4. Did the treatment and care provided to [the mother] and Brianna fall below a reasonable standard of care? If so, please identify aspects of care during this pregnancy and labour (2013) that were below a reasonable standard?
Answer: Yes.
(a) The management of the Syntocinon infusion was below the standard of reasonably competent peer health professionals in 2013 because the infusion was not ceased or greatly diminished when uterine hyperstimulation supervened.
(b) The continuation of the labour when significant foetal hear rate anomalies and maternal pyrexia arose was also below that of reasonably competent peer professionals in 2013 in that no foetal scalp blood sampling for pH and lactate was performed to exclude a foetal acidosis.
5. What should Wollongong Hospital have done in managing [the mother’s] labour?
Answer:
(a) The Syntocinon infusion should have been ceased when severe tachysystole was encountered.
(b) The foetal heart rate abnormalities should have prompted investigation by foetal scalp blood sampling for Ph or lactate analysis. Absent any reassurance from a normal pH or lactate then urgent delivery by Caesarean section was indicated.
6. On the balance of probabilities (50.1% or greater), did the treatment provided by Wollongong Hospital cause foetal distress and injury to Brianna?
Answer: Yes.
(a) Uterine hyperstimulation is a well-recognised cause of foetal hypoxia.
(b) The product information on Syntocinon clearly warns and did warn in 2013 against overstimulation of uterine contractions and the consequent risk of foetal hypoxia.
(c) Although the evidence of foetal metabolic acidosis is not available because of the failure of the obstetric staff to sample the umbilical artery and vein at delivery, nevertheless a foetal acidosis may occur without poor Apgar scores.
(d) There appears to be no relationship between the short arm deletion of chromosome no 9 and global developmental delay.
(e) Therefore it is more probable than not that there is a causal connection between the global developmental delay from which Brianna suffers and an episode of intrapartum hypoxia associated with maternal fever, a saltatory CTG and uterine hyperstimulation with overuse of Syntocinon.
(f) It is noteworthy that a study in 2006 of 98 children indicated that intrapartum asphyxia was recognised as a major cause of global developmental delay (22%).
(g) The aetiology of GDD/ID can be identified in many cases (40% to 80%).”
“Opinion
It is alleged that this child has global developmental delay first detected at age 3 years and this was due to events during labour. I am not an expert in development delay but from my limited knowledge, I understand there are multiple causes, of which hypoxic brain damage is one. After review of the clinical notes I would say that I can see no evidence that this child suffered from brain damage due to hypoxia during labour.
I would base this opinion on the following observations:
- The CTG trace
- The condition of the baby at birth and its neonatal course.
CTG trace
From the commencement of Syntocinon at around 0800 hours there was continuous monitoring of the foetal heart rate by the CTG. I would concur with the midwifery and medical staff that throughout labour, the trace was reassuring until 1850 hours when a series of late decelerations occurred by which time the decision for Caesarean section had been made. The variations from normal that are present were:
- Decelerations after the administration of an epidural block at around 1500 hours. These are often seen and as usual there was recovery.
- Rise in the baseline foetal heart rate at around 16:00 hours which accompanied a maternal pyrexia commencing an hour earlier. At 160 beats per minute with retention of normal short and long term variability and no decelerations of note until 18:50 hours, I would not believe this was indicative of any foetal compromise.
The baby’s condition at birth
The indication that a baby has suffered recent hypoxic insult is that upon delivery there is reduced vital signs in the baby including respiration, heart rate, and muscle tone. These are assessed using the Apgar score. In this baby the scores were 9/10 at 1 minute and 9/10 at 5 minutes. These indicate no compromise to the baby. Subsequently the baby showed no signs suggestive of acute hypoxic encephalopathy.
In relation to the Particulars of Claim
The chronology presented is not consistent with the notes in 11 and 12. Late decelerations were not noted until 19:08 hours although the first was at 18:50 hours. The decision to move to Caesarean was made before that time since the registrar’s notes were written at 18:50 hours. Thus the statement that the decision was not made until 19:45 hours is incorrect. The baby was delivered by that time.
Particulars of Negligence of Defendants
(a) Failing to discontinue Syntocinon when overstimulation of the uterus and excessive, dangerous contraction levels became obvious.
I would deny that at any time in labour that the contractions became excessive, or dangerous.
(b) Failing to deliver the plaintiff via C-section at an earlier stage, given the clinical factors presented by the plaintiff; namely:
(i) Being a small woman 20. The defendant breached its duty of care to the plaintiff by failing to care for and treat the plaintiff adequately
Being small in height is no indication to undertake an elective Caesarean section. Indeed, the baby’s head descended well into the pelvis and was obstructed by malposition of the head in the transverse position.
(ii) The large weight of the foetus
While the ultrasound at 34 weeks indicated a larger than average size, that alone is not an indication for an elective Caesarean section particularly as the head was engaged at 38 weeks when she presented with spontaneous rupture of membranes
(iii) Uterine hyper stimulation
RANZCOG Guidelines (ref) define hyper stimulation as more than 5 contractions every 10 minutes. Careful review of the CTG shows that even in established labour between 1300-1900 hours, the average number of contractions was less than 5. There are possibly two ten minute times when there were 6. The pressure monitor at times seems to indicate a rising tone. This is impossible to interpret because the baseline pressure is more determined by patient position e.g. back or side and the tightness of the strap holding the monitor to the abdomen. Hyper stimulation cannot be judged by this parameter.
Thus I cannot see evidence of hyperstimulation.
(iv) Maternal fever
Maternal fever per se is not an indication to intervene with early delivery. It should be treated with antibiotics which she had commenced. It also needs to be included as a significant cause of foetal tachycardia which on its own is not an indication of foetal compromise
(v) Saltatory CTG
A Saltatory CTG tracing is defined as variability of the heart rate (band width) of >25 beats /minute with an oscillatory frequency of greater than 6/ minute for a minimum of one minute. Having reviewed the tracings, I can find no presence of this pattern other than occasional poor contact. Having searched the literature I can find no evidence that it is an indication per se of foetal compromise unless associated with late decelerations. Thus I deny any earlier intervention was indicated.
In the letter of instructions I have been asked to answer the following questions:
1. Do you consider that the Hospital’s management of the mother’s labour and delivery of the infant at Wollongong Hospital in December 2013 was in accordance with reasonable professional practice at that time?
I believe the hospital followed accepted guidelines and policies in the management of this case. I believe their care was in accordance with current practice as I have outlined in my opinion.
2. Do you consider that the treatment, care and management of the mother’s labour and delivery of the infant in December 2013 was widely accepted in Australia by peer professional opinion as competent professional practice?
I believe the management provided was consistent with practice of peer professionals in 2013.”
“16. Using the 1999 and 2003 consensus statements as a template, there is nothing in her history that would fulfil any of the criteria required to ascribe an intrapartum hypoxic ischaemic cause to cerebral palsy or other disabilities.
17. Metabolic acidosis on cord pH or early arterial blood gas (pH<7.0 or base excess <-12): The body responds to inadequate tissue oxygen delivery by changing to a type of metabolism that does not need oxygen. The by-product of this is lactic acid so the best way to assess shortage of oxygen before birth is to measure acid levels in the umbilical cord blood or an early arterial blood gas. She did not have a cord blood gas measured nor was there any clinical indication to measure it. In probabilistic terms, her normal Apgar scores would make it highly unlikely that she was significantly acidotic at birth. This criterion is probably not fulfilled.
18. An hypoxic ischaemic encephalopathy (HIE) of moderate or severe degree: She had a normal postnatal course and behaved normally at all times with no record entries that would be suggestive of any encephalopathic behaviour. This criterion is not fulfilled.
19. Spastic or athetoid cerebral palsy: She does not have cerebral palsy. This criterion is not fulfilled.
20. No other apparent cause for her brain injury: Investigation has shown a deletion in the short arm of chromosome 9 of uncertain significance, I will discuss this more later but this criterion is not fulfilled.
The consensus statements also details desirable criteria.
21. A sentinel hypoxic obstetric event: There was no defined sentinel event. This criterion is not fulfilled.
22. A sudden, rapid and sustained deterioration in foetal heart rate or the absence of foetal heart rate variability in the presence of persistent late or persistent variable decelerations, usually after a hypoxic sentinel event when the pattern was previously normal: There was no defined sudden onset foetal bradycardia or absent foetal heart rate variability with persistent late decelerations. I would defer to expert obstetric opinion on this but this criterion is not fulfilled.
- Low Apgar scores 0-6 (1999 statement) or 0-3 (2003 statement) for longer than 5 minutes: Her Apgar score at 5 minutes was 9, so this criterion is not fulfilled for either statement.
- Evidence of multisystem involvement: The usual organs that are also affected by an hypoxic ischaemic insult are the kidney and the liver. They did not test for multiorgan dysfunction nor was there any indication to do such testing. This criterion is not fulfilled.
- Evidence of acute injury on brain imaging: She did not have any brain imaging nor was there any clinical indication for such imaging. This criterion is not fulfilled.
- Overall, her clinical history fulfils none of 4 of the essential criteria and none of 5 desirable criteria. So it seems unlikely in the extreme that Brianna’s current difficulties are the result of any perinatal compromise. The most compelling evidence of this is her normal Apgar scores and the lack of any encephalopathy.
- An encephalopathy is the behavioural acute manifestation of a brain injury. After any significant brain injury, there will be an encephalopathy that will develop in the subsequent 12-24 hours. This will include such symptoms as increased or decreased tone, high pitched cry, apnoeas (pauses in breathing) and seizures. Normal feeding would not occur in an encephalopathic baby. If there are no such manifestations, is it biologically implausible that the alleged event was the cause of any long term disabilities.
- While there is compelling evidence that Brianna’s problems were not caused by perinatal events, the exact cause is unclear. I note the strong paternal family history of intellectual difficulties as well as the chromosome 9p22.2 deletion that was found on Brianna’s chromosome analysis. It does seem most likely that there is a familial/genetic cause to Brianna’s problems.
- This is not my expertise but within the bounds of that limited expertise I note that no cause is found in a significant proportion of children with intellectual disabilities. I also note that the chromosome CHG array report and the genetics opinion is not stating that this deletion is not the cause of her problems but that its significance is uncertain. This was not investigated further for the reasonable reasons set out in Dr Hanna’s letter. If the parents are keen to get an explanation for Brianna’s problems, this would seem to be the avenue to pursue with further genetics opinion and investigation.
- I attach a parent information sheet on chromosome 9p deletions and it is clear that there are a range of these as well as a range of manifestations but that speech and language delay and intellectual disability feature strongly within those manifestations. I also note that the critical area delineated in the diagram of the short arm of chromosome 9 would seem to include 9p22.2.
- I would emphasise to the Court that I am not [of] a definitive opinion in this area of genetics and I may have misunderstood the CGH array report, but I raise the issue to propose that this may be worthy of further consultation as, currently, it’s the only lead.
- From a perinatal liability perspective however, there is no evidence that would support a perinatal cause for her problems.”
“Question 3: Opinion as to whether the plaintiff’s injuries and ongoing disabilities are related to her birth?
5.5 In my opinion it is unlikely that Brianna’s ongoing disabilities are related to her birth. My understanding is that Brianna was born in good condition and did not require respiratory support. Apgar scores were 9 and 9 at 1 and 5 minutes respectively. Brianna did not demonstrate early signs of cerebral hypoxia or insult. Specifically, there were no significant or persistent abnormalities of muscle tone or abnormal movements in the neonatal period, there were no seizures or sustained feeding difficulties and no other signs or symptoms suggestive of end organ hypoxic ischaemic injury. Brianna also does not have physical signs consistent with a diagnosis of cerebral palsy.
5.6 In my opinion, it is likely that Brianna’s diagnosis of global developmental delay will subsequently be changed to a borderline or mild intellectual disability. Although an identifiable cause can be detected in up to 80% of children with severe intellectual disability, the yield for those with mild or borderline intellectual disability is much lower at approximately 24% of cases (Canadian Paediatric Society Position Statement – Evaluation of the child with GDD and Intellectual Disability). As Brianna has already had the most common causes of intellectual disability excluded, in my opinion it is unlikely that a cause will be found. It may be useful to seek the opinion of a neurologist as to whether brain MRI is indicated to exclude a central nervous system malformation. As mentioned previously, I also rely on the expert opinion of a clinical geneticist as to whether the abnormality found on genetic testing is of relevance to Brianna’s clinical presentation.”
“1. On the balance of probabilities, did the infant suffer an intrapartum hypoxic brain injury?
I find no evidence that Brianna suffered an intra-partum hypoxic-ischaemic brain injury. She was delivered at term after an uncomplicated pregnancy. Her delivery was complicated by prolonged membrane rupture and maternal fever, but she was born in good condition. Her Apgar scores were normal, and she did not require resuscitation after birth. She was well in the first year of life. Her developmental delay became apparent only in the 2nd year of life when she first manifested receptive and expressive speech delay. Her early motor development was felt to be normal although she has subsequently been felt to have fine and gross motor delay and hypotonia. Her neurological examination was repeatedly felt to be normal by Drs Taylor and Baburaj; Dr Hanna felt – on an incomplete examination – that Brianna might have hypotonia. On no occasion has Brianna been felt to have neurological findings suggestive of sequelae of a neonatal hypoxic-ischaemic encephalopathy. She has never experienced seizures and she has – as far as I can determine – never gone neuroimaging.
2. What is the most likely cause of the infant’s alleged global developmental delay and associated disabilities?
Brianna has been felt to be non-dysmorphic and repeatedly found to have a normal neurological examination, i.e. normal strength and tone, reflexes and coordination. In the face of global developmental delay which seems at least moderate in severity, these findings are most consistent with non-syndromic intellectual disability (ID).
…
Brianna’s intellectual disability is most likely genetic – particularly given the strong family history of learning disabilities – despite a cause for it having not been identified on the trio WES undertaken in 2020.”
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:
“1. On the balance of probabilities (50.1% or greater), did the treatment provided by Wollongong Hospital cause foetal distress and injury to Brianna? If so, how so?
Yes, I note the opinion of the Expert Obstetrician, Professor Mike O’Connor in his reports dated 22nd March 2019 and 8th July 2021 that there were abnormalities on the CTG trace during the labour but these were not recognised by the treating staff. In particular he reported that there was a saltatory CTG at 14:30, which was also evident at 14:50, 15:00 and 16:00. He considered that the saltatory CTG was a sign of foetal distress, caused by the excessive uterine hyperstimulation as a result of the Syntocinon infusion.
2. On the balance of probabilities (50.1% or greater), did Brianna suffer from a hypoxic brain injury during her birth? Please outline your reasoning.
In my opinion on the balance of probabilities Brianna did suffer a hypoxic brain injury at the time of the saltatory CTG tracing abnormalities, that is in the periods between 14:30 and 16:00. The CTG trace then improved, and so by the time of delivery at 19:45 there had been a relative improvement in the placental perfusion, so that by then she did not require resuscitation and had good Apgar Scores.
However I agree with Professor Mike O’Connor that the good Apgar Scores do not preclude her having acidosis at the time of delivery.
Although no seizures or encephalopathy were reported in the neonatal period she was described as extremely unsettled on 7th December, but at no stage was a formal neurological examination performed.
Brianna has a history of severe delay in her expressive and receptive language, and recognised learning difficulties at school. Extensive investigations performed regarding the cause for her speech delay have found no other cause identified. The chromosome abnormality with a deletion at 9p22.2 is not associated with developmental delay, while the trio exome sequencing performed in 2020 showed no abnormality. She does not have Fragile X Syndrome, and assessment by a geneticist in 2018 showed no evidence of a Dysmorphic Syndrome. The urine metabolic screen was also normal.
3. If you are of the opinion that Brianna did suffer from a hypoxic brain injury, on the balance of probabilities, when did this injury occur? Please outline your reasoning.
This has been answered in the response to the previous questions.
4. Had [the mother]/Brianna received appropriate treatment, would Brianna have avoided her injuries (on the balance of probabilities)?
Yes. If there had not been excessive uterine hyperstimulation from the Syntocinon, resulting in a saltatory CTG, then Brianna is not likely to have suffered any hypoxic brain injury during the labour.”
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:
“HIS HONOUR: I'm not entirely sure, Mr Pierce, that I understand where the balance lies in this matter.
PIERCE: Indeed, your Honour.
HIS HONOUR: I've read what's described as your confidential advice on the settlement, and the fault is obviously all mine but I'm still not, having read that, seized of an understanding of the medical issues, the competing opinions of Dr Harbord and his colleague on the one hand, or the medical opinions marshalled in response to the claim by the defendant on the other hand. I've read your document a number of times. As I say, it doesn't even mention, unless I've missed it, the settlement sum. I now understand what the proposed settlement sum is, and there's a wealth of material that one has to take into account in coming to a view about these matters. Once again, I accept that the fault is probably all mine but I'm not comfortable that I understand, in colloquial terms, what the case is about. I understand it's an hypoxic-ischaemic encephalopathy case, is that right?
PIERCE: Yes, your Honour. Essentially, your Honour, the issues are, broadly speaking, similar to what your Honour's considered in Nemes case earlier this year. There is a real issue between the parties, particularly as to whether use of Syntocinon particularly, and the other matters that are raised contributed to what was some time later diagnosed as a gross developmental delay, and so on.
HIS HONOUR: The use or otherwise of Syntocinon may be an issue, but I would appreciate, and I've come to accept as usual, some assistance from counsel in the form of an advice that traces these arguments in a sort of sequential way.
PIERCE: Yes. When I wrote the opinion, your Honour, having come into the matter, I was concerned by reason of the older case of Simpson v Diamond that went to the Court of Appeal, and there was a substantial award shortly before the enactment, or in fact, even after the commencement of the Civil Liability Act, but concerning the situation before that was by far a substantial verdict, and I've since come across your Honour's decision in Nemes. As I sought the material, it was a competition between those matters, and having your Honour's reasons in Nemes, that was a concern. Having taken those up with the tutor, they were in favour of the settlement proposed, your Honour.
HIS HONOUR: Their favourability or otherwise is one thing, and it's a factor to be taken into account. It's persuasive but not conclusive, but I need to understand whether the risks of proceeding and rejecting a settlement outweigh the wisdom of accepting the settlement. For all I know, this child may be better off on an undiluted NDIS program which, as I understand, may be subject to diminution if this settlement goes ahead. I don't know what the certainties or probabilities are that that will occur. To put it bluntly, Mr Pierce, I'm just not confident I have enough information to tell all of you whether or not this is in the child's best interest.
PIERCE: I hear what your Honour says.
HIS HONOUR: What I would like, and I'll hear from Mr Bradley but I suppose in a sense, Mr Bradley, you're not a contradictor to this application unless you wanted to contribute something?
BRADLEY: Your Honour, I don't know what's been provided to you obviously in the form of confidential advice. I can take your Honour through the defendant's position as to why we think we have a robust position in this case, but I think your Honour's asking for something slightly more subtle than just hearing the defendant's side of the case which is normally provided in the confidential advice.
HIS HONOUR: Yes, I'd like to take it in a sequential way. Clearly enough, the starting point for any application for approval is usually, although it is not essential, an advice from counsel or his or her equivalent that describes what the case is about, balances the risks pro and con, incorporates where necessary an analysis of the competition between competing medical opinions, and proffers a non-binding opinion as to the reasonableness or otherwise of the settlement in the light of the perceived risks of either proceeding or not proceeding. I don't yet have that.
BRADLEY: Yes, your Honour.
HIS HONOUR: Mr Pierce, what I have just said will be recorded, and I'll have it made available to the parties in order that you and those who instruct you can review it, but I really need you to provide me with an analysis that starts from the proposition that includes a description of what the settlement proposal is and then deals with the medical issues, and the competing contentions about them. I need details of NDIS or Medicare paybacks. I need it all set out chapter and verse. It's not an easy document to prepare but it's a document that when I have it in proper form makes my task not only easier but gives me, on behalf of the Court, confidence that an opinion I can reach about the reasonableness or otherwise of the settlement is well-founded.
I don't mean to be critical but I don't have that material at the moment, and I want it. I may have caught you a bit by surprise, but having said as much as I've said, how long do you think it will take you or to come up with a document in the form of an advice as to the reasonableness of a proposed settlement that sets it out in a way that any reader would know at the conclusion what the issues were, and be able to form a view about the proposed settlement?
…
HIS HONOUR: Without saying more or making any other orders, I'll adjourn this matter for further hearing before me on Tuesday 7 October 2025. I expect, Mr Pierce, that you can provide to me via my associate a revised advice on settlement on a confidential basis--
PIERCE: Yes, your Honour, that can be done.
HIS HONOUR: --in advance of that date so I've got an opportunity to deal with it. Please do not make assumptions that I know anything that you know. If you want me to know it and take account of it, you'll need to set it out and support it by reference to the experts who have provided opinions for all parties in the matter. Do you follow?
PIERCE: Yes, indeed, your Honour.”
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.
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Cleary
Illawarra Shoalhaven Local Health District [2025] NSWSC 1192