Finlay bhnf Finlay v HUNTER NEW ENGLAND LOCAL HEALTH DISTRICT

Catchwords: PRACTICE AND PROCEDURE – Settlement – Approval – Personal Injury claim – Where plaintiff under legal incapacity due to age – Settlement approved

Legislation Cited: Civil Procedure Act 2005 (NSW)

Cases Cited: Nil

Texts Cited: Nil

Category: Procedural rulings

Parties: Ilah Finlay (Plaintiff)
Hunter New England Local Health District (Defendant)

Representation: Counsel:
A. Campbell (Plaintiff)
O. Stephens (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Minter Ellison (Defendant)

File Number(s): 2023/190198

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. These proceedings concern an application by Ms Ilah Finlay, through her tutor, her mother, Ms Shania Finlay, for approval of a proposed settlement pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

2. The application was supported by an affidavit of Ms Finlay of 28 October 2025, and an affidavit of Dominic Dagher dated 31 October 2025, which had a very substantial volume of annexures accompanying the affidavit.

3. The Court was also assisted in reaching a conclusion in this matter, by a confidential advice of Mr Campbell, who acts on behalf of the plaintiff.

4. The Court had before it, consent orders, duly executed by the solicitors for the respective parties. By that consent order, it was stated that the plaintiff would cause the present action to be mentioned in Court and apply for approval of the consent orders, and for each other order as may be deemed expedient in accordance with the provisions of Division 4 of Part 6 of the Civil Procedure Act.

5. The terms of the parties' settlement appear in the consent judgment, but given that they derive from mediation, and given the subject matter of the proceedings, I consider that it was reasonable and wise for the parties to suggest that the terms not form part of this judgment. It is sufficient to note, for present purposes, that the sum proposed in the settlement is substantial.

6. The plaintiff was born on 2 September 2019 and is currently 9 years of age. The plaintiff was born at Tamworth Hospital. Ms Finlay was 19 years of age at the time of the plaintiff's birth, and it was her first pregnancy. Ms Finlay deposed of a traumatic birth process, shoulder dystocia, and in her view, inadequate neo-natal resuscitation, resulting in the substantial medical impairment which her daughter suffers, and which is the subject of much medical evidence and legal opinion presently before the Court.

7. Mr Dagher deposed that based on the medical evidence obtained, it is alleged that the defendant breached its duty of care to the plaintiff. In particular, it was alleged that the defendant breached its duty of care owed to the plaintiff by:

8. failing to recognise the plaintiff's mother's pregnancy was high risk;

9. failing to induce the plaintiff's mother at 38 to 39 weeks;

10. failing to deliver the head to body delivery interval in a timely manner; and

11. failing to adequately resuscitate the plaintiff.

12. All of those allegations, and in particular causation considerations, are disputed by the defendant. The ultimate settlement in the matter is a settlement reached without admission as to liability.

13. The plaintiff was represented by Mr Campbell, who referred, understandably in oblique terms, to the advice that he had given and the particular issues of fact and law that gave rise to the settlement in question. I have taken into account those views in reaching the conclusion that I have in relation to the present matter.

14. Because of the confidential nature of the advice, and the opinions contained therein, I do not propose to comment upon the particular bases upon which a settlement may have been reached in the circumstances. However, balancing them as best as I may in light of all of the material and those opinions, in my view, the settlement is, in all the circumstances, reasonable.

15. In that light, I consider that a proper basis has been established for approval of the settlement as reflected in the consent judgment under s 76 of the Civil Procedure Act and related orders under s 77 of that Act.

16. I find, first, that the plaintiff has the requisite legal incapacity. She is a child and is incapable of managing her own affairs. Secondly, I find that approval of the settlement should be given in the circumstances which I have outlined in my judgment.

17. It was specifically sought in the Short Minutes of Order, that the Court enter verdict and judgment for the plaintiff in accordance with those orders as they have been filed.

ORDERS

14. In the circumstances thereby the Court makes the orders contained within the consent judgment in the proceedings, in the terms there proposed.

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