Birth injury claims carry real financial and emotional risk. Expert evidence may not support the claim, out-of-pocket expenses can be substantial, and a losing party may be ordered to pay some of the other side's costs. Funding agreements determine who bears those risks.
Why the evidence may be uncertain
A poor outcome after birth does not by itself show that care was negligent. Some conditions, including cerebral palsy, can have several possible causes, and some arise before labour begins. A claim generally needs expert support on two distinct points: that the care fell below the standard expected at the time, and that this shortfall caused or materially contributed to the injury. Experts may agree on one point but not the other.
Early investigation may reveal missing records, unclear monitoring traces or conflicting opinions. A solicitor may advise that a claim is not viable after reviewing this material, even after the family has invested time and hope.
Disbursements
Disbursements are expenses paid to others while running the case, separate from legal fees. In birth injury matters they can be significant because several specialist reports are often required.
- Fees for obtaining hospital and clinic records
- Expert reports on standard of care, causation and loss
- Court filing and hearing fees
- Barristers' fees
- Travel or assessment costs for medical examinations
Adverse costs: what if we lose?
In Australian civil litigation, a party that loses can commonly be ordered to pay part of the winning party's legal costs. This is separate from your own lawyer's fees and can be a substantial amount. The rules, and any special arrangements for particular courts or claimants, vary and need individual advice.
Some funding arrangements or insurance products may address this risk, but the terms differ widely. Families should understand exactly what happens to their own liability if the claim fails.
Settlement offers
Formal offers can carry cost consequences. If a party rejects an offer and later does no better at trial, the court may take that into account when deciding who pays costs. This means accepting or rejecting an offer is both a financial and a personal decision, and it deserves careful explanation.
Understanding funding terms
Some lawyers act on a conditional basis, where fees are payable only if the claim succeeds. Even then, families may remain responsible for disbursements or adverse costs, and an uplift or other charges may apply. Read the costs agreement closely and ask questions before signing.
For your next conversation
- Obtain the written costs agreement and disclosure before work begins
- Ask who pays disbursements if the claim is unsuccessful
- Ask specifically about exposure to adverse costs and any protection available
- Request an estimate of disbursements for each stage
- Ask how the solicitor will update you if the merits assessment changes
Common questions
If an expert decides the injury was not caused by the delivery, do we still owe money?
That depends on your costs agreement. Some arrangements require payment for investigation work or disbursements regardless of outcome, while others cover those costs in some situations. Ask before signing what happens if an expert does not support causation and the claim stops at an early stage.
Is 'no win, no fee' the same as no risk?
Not necessarily. Such arrangements usually relate to professional fees only. Families may still face disbursements and possibly an order to pay the other side's costs. The exact position depends on the agreement and the court rules, so request a written explanation of every cost you could owe.