Infant Approval Judgment: Is the personal injury settlement in the best interests of the child?

  • 23 Mar 2023
A recent Supreme Court of NSW infant approval judgment in the matter of Benjamin Fletcher by his tutor Victoria Fletcher v South Eastern Sydney Local Health District (“Fletcher”) outlines various factors that need to be considered when deciding whether a settlement is beneficial to a person under legal incapacity.
  • The decision in Fletcher provides guidance for both plaintiffs and defendant’s considering appropriate settlement sums for those under 18 years old, or those without legal capacity.
  • It is clear that life expectancy opinions play a significant role in considering the appropriateness of a settlement sum.
  • The Supreme Court of NSW has again indicated the difficulty and uncertainty for plaintiffs in proceeding to trial in “failure to warn cases”.
Background to Fletcher’s Case

The plaintiff is 8 years of age and alleges that as a result of complications during his breech delivery, where he suffered a hypoxic brain injury, he has been left with severe and profound disabilities, which will impact him for the rest of his life.

Infant Approval Judgment

In considering whether the settlement was in the best interests of the plaintiff, his Honour noted the following factors:

1. The strength of the defendant’s expert evidence creates a real possibility that the plaintiff may not have succeeded if the matter proceeded to trial

The question of whether any settlement is for the benefit of a legally incapacitated person will turn upon a consideration of whether the prospects of obtaining a more favourable judgment at trial outweighs the value of certainty, which arises from settlement . Keeping this in mind, his Honour reviewed both parties’ evidence and noted that failure to warn cases can be difficult for plaintiffs.

Justice Cavanagh says that such cases depend on findings of fact, which are made in favour of the plaintiff, followed by a consideration of the appropriate warning, which was required, and whether the warning given was competent. The defendant in Fletcher’s case disputed the facts brought by the plaintiff and his Honour considered the plaintiff’s failure to warn case as uncertain.

Further, in relation to the allegation regarding the mismanagement of the plaintiff’s delivery, his Honour noted that such cases, where there are competing expert opinions, especially from very experienced and well-regarded experts, it is not possible to safely predict the outcome.

Considering the provisions of the Civil Liability Act 2002 (NSW), which have modified the old common law “failure to warn” cases (such as Rogers v Whitaker (1992) 175), the defendant’s presentation of a strong expert opinion, if the Court considers it to be strong, creates a real risk for the plaintiff.

His honour noted that it is therefore important to assess the settlement figure on the basis that there is a real possibility that the plaintiff may not have succeeded at trial.

2. The significance of life expectancy on the issue of damages

The plaintiff’s evidence indicated that he could live for 43 years at most, and the defendant’s evidence suggested that he would live for 18 years. His honour noted that in these uncertain circumstances, any settlement which might be recovered by the plaintiff must necessarily reflect some compromise on the plaintiff’s best case.

Justice Cavanagh said that there was no possibility for the plaintiff in this case recovering the highest amount of damages by way of settlement, as there were substantial issues between the parties on the issues of damages.

The ultimate settlement sum was significant and reflected a substantial portion of the amount that the plaintiff might have recovered from any hearing before a Judge.

3. At what stage should cases brought by infants be settled?

The plaintiff’s young age did not affect the assessment of other settlement as there was no prospect for the plaintiff achieving any recovery or real improvement.


In all the above circumstances, settlement was approved as Justice Cavanagh was satisfied that the settlement:

  • Was for the benefit of the plaintiff;
  • Provided certainty for the plaintiff’s future and allowed his family to plan and provide him with the best possible care; and
  • Avoided the very real risk of a long and complex trial, which could ultimately be unsuccessful.

Fletcher’s case provides insight of the Court’s position to both plaintiff and defendant lawyers for factors to bear in mind when considering the appropriateness of settlement in matters involving those under 18 years old or without legal capacity. 

Article written by Hicksons’ Partner, Cameron Leaver, and Associate, Doris Phiri.

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