Sebastian Fiore bht Adriana Fiore v Sydney Children's Hospitals Network t/as Westmead Children’s Hospital

Cases Cited: Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840
Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Category: Principal judgment

Parties: Sebastian Fiore bht Adriana Fiore (Plaintiff)
The Sydney Children’s Hospitals Network t/as Westmead Children’s Hospital (First Defendant)
Western Sydney Local Health District (Second Defendant)

Representation: Counsel:
M Perry (Plaintiff)
H Allison (Solicitor Advocate) (First & Second Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Crown Solicitor’s Office (First & Second Defendant)

File Number(s): 2020/00194229

Judgment- ex tempore (Revised)

1. By a statement of claim filed on 9 June 2020, the plaintiff by his tutor claims damages from the defendants arising out of injury suffered by the plaintiff as a result of the delay in diagnosis of a congenital cardiac atrioventricular septal defect.

2. When the plaintiff’s mother was at 19 weeks gestation with the plaintiff, an ultrasound examination of the foetal heart at Nepean Hospital was reported as normal. The plaintiff was born in mid 2016. Starting at approximately three months after the plaintiff was born until he was about 18 months, the plaintiff was taken to Mount Druitt Hospital and Westmead Children’s Hospital with coughing and choking episodes and other respiratory problems on about 15 occasions. On some occasions it was recorded that the plaintiff had ongoing tachypnoea and low oxygen saturations. It was not until December 2017 that an ECG revealed that the plaintiff suffered from an atrioventricular septal defect. In February 2018 the plaintiff underwent surgical repair of that defect. By 2022, the plaintiff was diagnosed as suffering a global developmental delay. It is the plaintiff’s case that this condition was caused by the failure of Nepean Hospital, Mount Druitt Hospital and Westmead Children’s Hospital to diagnose the atrioventricular septal defect earlier than December 2017 in breach of the duty of care owed by them to the plaintiff. The particulars of the breach of duty are set out in the second amended statement of claim filed on 4 November 2024.

3. The plaintiff is currently eight years of age and is accordingly a person under legal incapacity.

4. As a result of an offer made at a mediation on 22 April 2025 which was later accepted by the plaintiff’s tutor with the agreement of the plaintiff’s father, subject to court approval, the parties have agreed to settle the plaintiff’s claim upon terms set out in a form of consent judgment dated 28 May 2025 which has been signed on behalf of the parties and provided to the Court.

5. The matter has come before me because s 76(3) of the Civil Procedure Act 2005 (NSW) provides that any compromise or settlement of proceedings commenced by or on behalf of a person under legal incapacity, such as the plaintiff in the present case, may not proceed except with the approval of the Court. Moreover, s 76(4) empowers the Court either to approve or disapprove such an agreement.

6. The Civil Procedure Act itself does not provide any specific guidance as to the considerations that the Court should take into account in carrying out the task of approving or disapproving of the settlement. Nonetheless, it is well established by authorities such as Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 at [29] (Hammerschlag J) (cited with approval by the High Court in Wigmans v AMP Limited (2021) 270 CLR 623; [2021] HCA 7 at [112]) and Bacon by his tutor Sarah Rea v Western New South Wales District Health Service [2018] NSWSC 1840 at [3] (McCallum J) that:

7. the Court’s function is essentially protective;

8. the settlement should be assented to by the tutor and there should be opinions from the person’s legal advisers that they consider the settlement to be in the interests of the person under legal incapacity; and

9. the Court should scrutinise the settlement for itself and be satisfied that the settlement is beneficial to the interests of the person under legal incapacity.

10. The Court has been provided with an affidavit from the plaintiff’s mother, who is also his tutor, and an affidavit from the plaintiff’s solicitor, Ms Newman, all of which I have taken into account. These affidavits outline the bases for the plaintiff’s claim as well as the nature and extent of his injuries and disabilities.

11. Ms Newman’s affidavit has exhibited to it a large number of medico-legal reports obtained on behalf of both the plaintiff and the defendants relating to liability, causation and quantum.

12. In particular by way of example, the medicolegal material included the report of Dr Michael Harbord, paediatric neurologist, of 14 March 2024 which stated:

“In summary, [the plaintiff] had significant recurrent hypoxic insults in the first 18 months of life, before the diagnosis of the Atrioventricular Septal Defect was made, and surgical correction occurred. There is evidence of hypoxic brain damage on his MRI scan performed at six years of age, while extensive genetic testing including a Trio Whole-Exome has found no evidence of a genetic cause for his global developmental delay or cardiac abnormality. No other cause for [the plaintiff’s] global developmental delay and hypoxic brain damage has been identified, other than recurrent episodes of hypoxia occurring in the first 18 months of life.”

10. As was noted in the affidavit of Ms Newman, however, the defendants’ evidence in relation to liability and causation was to the effect that the early ultrasound studies did not reveal any atrioventricular septal defect, decreased oxygen saturation levels suffered by the plaintiff were not such as to cause hypoxia or intermittent hypoxic events, recurrent respiratory infections may have caused intermittent mild hypoxia, earlier diagnosis of the defect may not have resulted in earlier operative repair, there were diagnostic challenges in the absence of cardiac signs, and there was a common association between congenital heart disease and developmental delay. In addition, the defendants medico legal evidence provided some support for the contention that the plaintiff had not suffered an hypoxic brain injury.

11. The medicolegal issues have been explained to the plaintiff’s tutor.

12. A number of reports have been obtained on behalf the plaintiff in relation to the issue of damages from a psychiatrist, an occupational therapist, two neuropsychologists, a speech pathologist and a geneticist. These were included in the exhibit to Ms Newman’s affidavit. In addition to the defendants’ report from an occupational therapist, the parties have jointly obtained a report from Dr Scheinberg, paediatric rehabilitation physician. In his 1 March 2022 report, Dr Scheinberg stated:

“As discussed previously, [the plaintiff] should have investigations for GDD [global developmental delay] to exclude genetic, metabolic and endocrine causes. On the assumption that these investigations have been completed and found to be normal, in my opinion it is likely that [the plaintiff’s] prolonged periods of hypoxia over his first 12 to 18 months of life have affected brain development and are the cause of his impairments in function. The full effect of such injury may not be fully appreciated until adolescence when [the plaintiff’s] academic and social challenges increase significantly, and I therefore recommend reassessment occur at that time.”

13. By the time of Dr Scheinberg’s report of 6 April 2023 he recommended that the plaintiff undergo a cerebral MRI to help determine the cause of his GDD and noted that it was beyond his area of expertise to comment on whether the specific timing of any hypoxic brain injury seen on cerebral imaging could be determined.

14. Furthermore there was a divergence of opinion as to the ongoing level of care that would be required by the plaintiff, in particular whether that care was due to infancy or injury. Professor Lah, clinical neuropsychologist noted in his report of 21 January 2025 that the plaintiff suffers ongoing cognitive issues though these do not amount to an intellectual disability.

15. Ms Newman’s affidavit also gave details of the statutory deductions from the settlement amount in respect of NDIS funding including the anticipated annual Compensation Reduction Amount for a further 57 years and information in respect of Medicare deductions. In addition Ms Newman expressly stated that her firm would not charge any costs and disbursements beyond what was recoverable from the defendants under the settlement agreement.

16. Ms Newman was of the opinion, taking into account the issues in the case relating to liability, causation and quantum, that the proposed settlement figure is reasonable noting the concerns of the plaintiff’s tutor and father. Ms Newman also noted that the plaintiff’s tutor has been advised that should the settlement be approved by the court the settlement will be final and the plaintiff will not be entitled to bring any further claim against the defendants in the future in relation to this matter. Finally, Ms Newman gave evidence of advising the plaintiff’s tutor that the settlement monies, after allowing for the deductions for the NDIS and Medicare, would be held in trust by the New South Wales Trustee and Guardian unless the plaintiff’s tutor sought to make a separate application for appointment of a private trustee. Ms Newman also said that the plaintiff’s tutor appeared to understand the matters that had been explained to her and instructed her to seek approval of the proposed settlement.

17. I have also had the considerable advantage of reading the confidential advice of Mr Michael Perry of counsel and have taken into account his opinion. I have noted his comment on the degree of compromise involved in the proposed settlement amount and why he came to the conclusion expressed in the last sentence of his advice.

18. I have also taken the evidence of the plaintiff’s tutor into account. The plaintiff’s mother and tutor’s evidence was that she understood the that there were risks and uncertainty involved if the matter proceeded to a hearing in court and that the plaintiff would have no further entitlement to bring any further claims against the defendants in the future in relation to this matter, even if there were a deterioration in his injuries, if the Court approved the settlement. I also received an express statement on the tutor’s behalf that she considered the proposed settlement was in the best interests of the plaintiff.

19. The plaintiff’s tutor also explained her understanding of amounts that might be deducted from the settlement sum for matters relating to the NDIS and Medicare and the effect of the settlement on future Centrelink payments. She understands that the settlement funds will be held in trust for the plaintiff by the New South Wales Trustee and Guardian or she might subsequently seek the appointment of a private trustee. The tutor also gave evidence as to her understanding of the position in relation to legal costs, namely that the solicitors and barrister would not seek to recover any fees and disbursements in addition to what was recovered from the defendants as a result of the settlement. Finally, the tutor explained why she requested the Court to approve the settlement.

20. Taking all of the above considerations into account and having regard to the amount of the agreed settlement I am satisfied that what is proposed is prudent and that it would be beneficial to the interests of the plaintiff if the settlement is approved.

21. Accordingly, the Court orders that:

22. the settlement of these proceedings be and hereby is approved;

and by consent and without admission of liability, the Court:

2. makes orders in accordance with pars 2, 2A, 7, and 8 of the form of consent orders signed on behalf of the parties and dated 28 May 2025 as amended to include par 2A;

and, the Court notes:

3. the agreement between the parties in pars 3 and 9 of the form of consent orders;
4. the undertaking of the plaintiff and the agreement between the parties in par 4 of the form of consent orders; and
5. the acknowledgements, consents and authorisations in pars 5 and 6 of the form of consent orders.

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