I have previously talked about accessing the result of court cases – see Accessing a judge or magistrate’s reasons for decision (November 18, 2016). That post discusses finding a result when a judge rules on a matter. Usually when a case settles out of court (and most do) there is nothing to find and we cannot know that the case existed let alone what the outcome is. This is different when the injured party is a child or otherwise under a legal disability. In those cases a judge must approve the settlement in order to make sure the child’s interests are protected. This is what has happened in McElhinney v Ambulance Service of New South Wales  NSWSC 1471.
Wright J described the case (at -) as follows:
The plaintiff by her tutor claims damages from the defendant arising out of the circumstances of her birth on 7 May 2013 and the treatment received by her and her mother from paramedic ambulance officers who attended the mother while she was in labour and who transported the plaintiff and her mother to hospital, where the plaintiff was born.
The plaintiff’s case, in substance, is that the defendant is liable for the negligence of the ambulance officers in: failing to recognise the obstetric emergency in the form of shoulder dystocia; failing to provide appropriate treatment and timely transport to hospital; and/or failing to seek appropriate expert assistance or advice in the circumstances. In addition and alternatively, it is contended in effect that the defendant was negligent in failing to provide appropriate training for its officers in relation to this type of obstetric emergency.
Litigation is a win/lose gamble. If you chose to run a case, you may win in which case if you’re the plaintiff you get damages; if you’re the defendant you do not have to pay anything. There can be a mid-case where the plaintiff wins some but not all of their claims or they establish liability, but their claimed damages are reduced. But, at the end of the day, litigation is never a certainty. Every case has its strengths and weaknesses but running a case before a judge is always a gamble. Equally litigation is not cost free. A defendant may be confident that they’ll win but the cost of defending the action can be considerable and a costs order is of little value if the other side doesn’t have the resources to pay. There is always a temptation to settle no matter how strong you think your case. In this case the judge said (at -):
Various aspects of the plaintiff’s case on liability are subject to significant contest by the defendant. There appears to be substantial dispute as to what actually occurred between the arrival of the ambulance officers and the plaintiff’s birth and as to what should and could have been done. In addition, the defendant relies on ss 5O and 42 of the Civil Liability Act 2002 (NSW).
Thus there is a significant risk that, if the matter went to trial, the plaintiff would not be successful in establishing liability.
… Further, it appears to me that the evidence is likely to establish that the plaintiff presently suffers from essentially three relevant conditions:
(1) cerebral palsy, which is spastic diplegic;
(2) moderate intellectual disability or developmental delay or disability; and
(3) autism spectrum disorder.
There is, however, a dispute of substance as to whether the plaintiff’s cerebral palsy or her autism spectrum disorder are causally related to the relevant circumstances of her birth. As a result, there is a not insubstantial risk for the plaintiff that, if the matter goes to trial, she would not recover damages in respect of her autism spectrum disorder or possibly her cerebral palsy.
The parties all agreed to settle the case. We do not know how much was being claimed, or what the terms of settlement are but we do know that the judge, taking into account the risks in the plaintiff’s case, said (at ) ‘I am satisfied that what is proposed is prudent and that it would be in the best interests of the plaintiff if the settlement is approved.’
Where a case settles there is no finding of negligence or liability, no facts are established, no precedent is set; so why report it?
I report it here as evidence that the case existed! I have reported just today on ‘training by myth and fear’ (October 27, 2020). Part of those myths and fears often imply that agencies are being sued all the time. I have previously reported on six known cases where Australian ambulance services have been sued over clinical (as opposed to driving or employment) issues –
- St. John Ambulance Australia (NT) v Stuart  NTSC 19;
- Keller v Metropolitan Ambulance Service  VSC 222;
- Ambulance Service of NSW v Worley  NSWCA 102;
- Neal v Ambulance Service of NSW  NSWCA 346;
- Roane-Spray v State of Queensland  QDC 348;
- Masson v State of Queensland  HCA 28.
This case adds number seven to that list. But the context is that this is seven cases since 1992 to 2020. In the days of the internet we can identify many more cases that we could when I started law school back in 1983. In those days only important judicial decisions were reported in printed, bound law reports. Today nearly every judicial decision is published online. It means that we can be reasonably confident that seven will represent the majority if not all the relevant claims. If there were others where a judge had to make a ruling, even on procedural or evidentiary matters but the case settled (which is the case with St. John Ambulance Australia (NT) v Stuart) or a case like McElhinney where the judge has to approve the settlement, we are likely to know about it.
And that is the important context. Think about how many cases ambulance services respond to in each year. And seven have led to claims of negligence and the ambulance service was successful in at least half of them (cases 3, 4 and 6 above and I don’t know what the final outcome in case 1 was). Reporting this case, even though it is not a precedent and says nothing about the conduct of the paramedics, is important to try and give a more complete picture of the risk of being sued.
Second reporting this case should confirm (if it needed confirming) what I have said many times. The risk of being sued is not a real risk for the paramedics. Here the ambulance service was sued either because it was vicariously liable for its allegedly negligent employees or it itself was negligent in the way it trained its staff. In either case the defendant was the Ambulance Service of NSW, not the individual paramedics.
Finally reporting this outcome is important as the case may be the subject of discussion within the sector. Cases like this can transformed into ‘we were liable’ or ‘the paramedics were negligent’ when that is not the case. There was no finding; this was a pragmatic settlement because the case you settle is the case you win. I would hope to convey this important principle so that anyone who is familiar with the case knows that this case settled; issues of negligence and liability were never determined.
We don’t know from this judgement anything about what happened to baby McElhinney or her mother, nor do we know anything about the conduct of the paramedics. What we do know is that it is one more, but still rare, case of an ambulance service being sued over alleged negligent clinical care. The case settled but knowing the case existed helps give a more complete picture of the legal environment in which ambulance services operate.
Prior to 2018 NSW did not have a skillset that addressed shoulder dystocia or breech birth. Our protocols and skillset surrounding maternity was poor. It is far better now. Only recently – assuming due to the circumstances of this case we were all trained. Shame that we had to have this occur for us to get trained.
You hit the nail on the head Antonio.
It is a very sad indictment on NSWA. It now seems it only added that training to avoid future litigation. When I joined NSWA 40 years ago I was proud to be an NSW ambo. I started losing that pride 20 years ago. When I compare us to Queensland – to whom we once sold our second hand ambulances with 500ks on the clock to now – frankly – I am now embarrassed to be a NSWA ambo.
Hi Prof Eburn, thanks for this post. Very interesting to us, and to me as a formal med neg solicitor.
I will do an informal GIPA to NSWA asking how many negligence claims have been filed against it in the last few years. Iâll let you know what I find out. In my experience, many med neg claims for adults are settled without any interlocutory decisions being made by the court. But I would guess that the majority of viable claims against NSWA would be for children, given that the difficulties in relation to liability would require the quantum to be quite high.
I have a question in relation to the discussion of the estimate of total fees at  â do you interpret the estimate of $1.1-$1.6m to be based on the settlement amount, or the total judgment sum sought by the plaintiffs? I would be surprised if it were the former, as that would make it quite simple to make a rough estimate of the settlement.
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The fees mentioned in  were the estimated fees to manage the trust funds over 80 years. The trust fund would be the ‘Judgment Sum’ less deductions on the
The fees mentioned in  were the estimated fees to manage the trust funds over 80 years. The trust fund would be the ‘Judgment Sum’ less deductions, that is the settlement not the initial claim. I don’t see how that would allow anyone to calculate that judgment sum unless you know how the trustee organisations calculate their fees?