What happened
After a prolonged and difficult home birth attended by an independent midwife, the child had hypoxic brain injury and lasting physical and cognitive disabilities. Expert evidence described substantial assistance needs and little prospect of paid employment or independent management of a large fund. The midwife ceased defending the case, her defence was struck out and judgment was entered for the child before this damages assessment.
The issues
The Court had to assess non-economic loss, future earnings and superannuation, age-related care needs and fund management costs under Part 2 of the Civil Liability Act 2002. Medical life-expectancy evidence and the decision not to pursue some losses against an uninsured defendant affected the assessment. Although the evidence was unopposed, the judge considered whether it was coherent and supported by sound assumptions.
The court's decision
The Court placed the child's disabilities within the statutory category of a most extreme case and allowed the then maximum non-economic loss amount. It accepted the need for future attendant care and professional fund management, entering judgment for AUD 6,606,583.00 plus costs. Past gratuitous care and past and future expenses were not awarded because those claims were not pressed.
Understanding the figures
The historical AUD 6,606,583.00 total comprised AUD 535,000.00 non-economic loss, AUD 365,000.00 future earnings, AUD 40,105.00 future superannuation, AUD 4,247,311.00 future domestic and attendant care and AUD 1,419,177.00 fund management. No interest was allowed on non-economic loss, and costs were separate. The judgment does not establish payment, recovery or a net receipt. The individual figures in the table at [76] sum to AUD 10 more than its stated total. This account discloses that arithmetic difference and retains the actual ordered amount of AUD 6,606,583.00.
What this case shows
The assessment separates the consequences of a serious childhood injury: additional care as the child grows, lost earning capacity and the ability to manage compensation all required evidence. The Court recognised the potential value of past family care but did not add a claim the plaintiff had chosen not to pursue. The judgment therefore was not a calculation of every possible lifetime expense.
Why another case may differ
This was an assessment after the defence had been struck out, rather than a contested trial of the clinical negligence evidence. The statutory maximum and life-expectancy and care assumptions were specific to this 2013 assessment. A later 2014 decision dealt with enforcement of freezing and examination orders; it did not establish that the damages had been paid.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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