PQ (A Child) v Royal Free London NHS Foundation Trust

When approving settlement of a child’s claim, the court must assess whether the proposed compromise is reasonable in light of the litigation risks and whether approval serves the child’s best interests. The assessment must reflect unresolved risks on liability, causation and valuation. A claim may fail under the Bolam test where a responsible body of medical practitioners would have acted in the manner alleged to be negligent. Where the evidence leaves materially different outcomes in play, a settlement substantially below a possible full award may nevertheless be reasonable if it fairly reflects the risk of complete failure.

The claimant, a child, suffered profound hypoxic-ischaemic brain injury following haemorrhage after artificial rupture of membranes during her delivery. The claim alleged that the defendant NHS trust should have performed a Caesarean section earlier and without artificial rupture of membranes.

After two days of liability evidence, the parties proposed settlement for a lump sum of £2 million. The court had not heard the defendant’s obstetric expert or final submissions. The central issues included whether the defendant’s proposed management was negligent, whether the injury would have been avoided, and the extent to which the claimant’s condition was attributable to birth injury rather than a congenital or genetic condition.

1. The court approved the settlement for £2 million. The proposed compromise was reasonable and in the claimant child’s best interests.

2. In deciding whether to approve a child’s settlement, the court must consider whether the sum properly reflects the risks of the case at the stage of settlement. Those risks may include complete failure of the claim, as well as uncertainty concerning causation and quantification.

3. Liability remained genuinely unresolved. The claimant’s expert considered that Caesarean section should have proceeded without artificial rupture of membranes. The defendant’s expert considered artificial rupture reasonable even if Caesarean delivery had been chosen. If the court accepted that a reasonable body of obstetricians would have proceeded in that way, the claim would have failed under the Bolam test.

4. The court had not heard all the evidence or submissions, so both complete success for the claimant and complete success for the defendant remained realistic possibilities. The settlement therefore properly reflected the litigation risk, notwithstanding that £2 million might appear low compared with awards for similar severe injury.

5. There was also substantial uncertainty in valuation because the medical evidence identified difficulty in distinguishing consequences of the acute birth injury from consequences of a congenital or genetic condition. The settlement was accordingly approved.