There are additional complexities that apply to medical negligence cases involving children. If your child has been injured as a result of medical negligence, please reach out to our expert team to discuss your options.
Medical negligence claims involving children: Royce (a pseudonym v Australian Capital Territory [2023] ACTS 69) (‘Royce’)
In March this year, the ACT Supreme Court was asked to approve a 7-million-dollar settlement for a 17-year-old who suffered as the result of medical negligence. The facts of the case related to the diagnosis and treatment of the plaintiff’s pneumococcal meningitis and septicaemia when the plaintiff was just 3 months old.
There are additional complexities that apply to medical negligence cases involving minors. These are largely designed to protect the minor’s interests when it comes to decisions about settling the case and management of settlement monies.
Need for tutor/litigation guardian
The NSW Civil Procedure Act and Uniform Civil Procedure Rules govern how a claim for a person under legal incapacity must be managed.
A child is a “person under legal incapacity” and is therefore not able to commence proceedings in their own right. They must have a Tutor.
Typically, a parent will take on the role of Tutor in a personal injury claim. Those who cannot be a Tutor include a person who is under legal incapacity, any person involved in the administration of a Court or a person who has an interest in the proceedings adverse to the interests of the claimant.
A person considering an appointment as a Tutor needs to be provided with independent legal advice. They are responsible for making decisions in proceedings but also have very important functions and obligations. A Tutor may be personally liable for cost orders.
Difficulties in Assessing Damages
The Royce proceedings were commenced some 15 years before they were finally resolved in 2023. There are often several reasons for the protracted proceedings involving minors, but the main reason is the difficulty in quantifying damages.
The full extent of the child’s injuries and the impact that they are going to have on the course of a child’s life may be largely unknown and not assessable until late adolescence or adulthood. It is also very difficult to predict the impact in the early years of a child’s life of injuries and disabilities on their education and employment opportunities. It is possible to resolve a matter for a young child, but in some cases, it may be necessary to wait until the child is older to fully understand, assess and quantify their loss.
Protective Jurisdiction
In cases where a settlement is agreed upon between the Tutor and the wrongdoer, the settlement must be approved at what is known as a “settlement approval hearing”. In deciding whether to approve a settlement for a child, the Court exercises what is known as the “parens patriae” jurisdiction. The Court has the special and protective oversight to ensure the interests of the child are protected and their best interests are served.
The Court must consider, first and foremost, whether the settlement sum is in the interests of the child. However, the Court must also consider the risk of a worse outcome if the matter were to proceed to a trial.
In Royce, the Judge found that the settlement was in the best interests of the child, commenting that:
“…The plaintiff and his parents have been dealing with the consequences of the events in 2006 for 17 years. They will continue to do so for the rest of the plaintiff’s life and the quantum of the settlement reflects that reality. This litigation was initially commenced in 2008 and absent the compromise, the hearing would have taken multiple weeks. The plaintiff and his parents have had this litigation in their lives since that time. The proposed settlement provides certainty and finality and in doing so, relieves one of the burdens faced by the plaintiff and his family. I am satisfied that the settlement of the case for the amount proposed is overwhelmingly in the plaintiff’s interest…”
What happens to the money?
The Court is also concerned to ensure that compensation awarded to a minor is protected and used to their benefit. This can include special oversight by a state trustee to ensure the proper financial management and investment of funds in the interests of the child.
For large amounts of compensation, consideration can be given to an application to the Court for the appointment of a private trustee such as a financial planner to manage the funds. In some circumstances, the additional expense of private funds management can be claimed as part of a settlement or awarded by a court at a hearing.
The management of settlement monies is usually considered at the settlement approval hearing.
If your child has been injured as a result of medical negligence, you need a personal injury expert. Please reach out to our expert team to discuss your options.
