In this video, John McCarthy answers the frequently asked question, “In what sort of scenarios can I claim compensation for my child?”
Getting back to basics, this is a fault-based system and you have to show that firstly, there was a duty of care owed to the baby and that’s kind of a given, but it’s the bedrock of the working on whether or not there is a case. Secondly, you must show that there was a breach in that duty. There’s a test that was done by the Supreme Court in association with the National Maternity Hospital, which sets out the bar that has to be reached to show that there was a failure in the ordinary standard of care that’s owed to the mother and the baby. If you can satisfy a court, based on expert evidence that there has been a breach of that duty and that harm has flowed from that breach, then you’re entitled to be compensated – if you’ve ticked all those boxes. It can be difficult to do, because showing liability for breach of duty in and of itself may be contentious. You might have one expert saying one thing and another having a completely different view, but even if you can show that there has been a fault or some shortcoming, it is then up to you to show that that shortcoming has actually caused direct harm to either the mother or the baby. There may be instances where there has been a clear breach of duty of some kind, but there is a difficulty in showing that the breach of duty, in and of itself, gave rise to the harm.
Obviously, babies are born with complications every day, where there’s nobody to blame and even if there has been some form of substandard treatment given to them, you still have to show that the harm that the baby is suffering directly as a result of that breach, as opposed to just a misfortunate event with nobody to blame.