Lawyers have welcomed a “landmark” confidential settlement in Australia’s federal court for a child refugee who became seriously ill on Nauru.
It is the first resolution among more than 50 claims filed against the commonwealth in the federal court seeking compensation for alleged negligence in the healthcare provided to refugees detained on Nauru.
In a judgment last Friday approving the settlement, the court found there was a “novel and contestable” argument that Australia had breached its duty of care towards a sick infant who was being held in offshore detention.
The commonwealth was sued for damages over its alleged negligence in the case, to compensate for the injury, loss and damage suffered by the child and her family resulting from the commonwealth’s failure to provide a “reasonable standard” of medical care.
The child, referred to as DIZ18, was two years old in 2018 when she fell ill with a potentially fatal suspected encephalitis infection.
The child was first treated on Nauru, before her symptoms became significantly worse, with Dr John Field, an emergency physician and intensive care specialist consulted by the International Health and Medical Services (IHMS) clinic on Nauru, saying “urgent evacuation to a first world tertiary hospital” was necessary.
The child was transferred to a hospital in PNG soon after, despite the senior medical director of IHMS, Dr Kalesh Seevnarain, telling Border Force officials that he recommended a transfer “to Australia or third country of comparable healthcare as its first option”.
Soon after, the child and her family engaged lawyers at Maurice Blackburn to organise an urgent medical evacuation to Australia to ensure a suitable brain scan, as brain injury as a result of herpes encephalitis is relatively common.
Justice Murphy of the federal court in 2018 ordered that the child and their family should be flown to Australia within 48 hours, to be treated at an Australian hospital.
But DIZ18’s lawyers said earlier and better treatment “would have avoided her suffering neurological impairment, or would have substantially reduced the neurological injury she has suffered”.
They said the girl had suffered both acute and short-term injuries and long-term neurological damage because of the delay.
The parties agreed to settle in June. The settlement does not include an admission of liability from the commonwealth.
The money from the settlement will be preserved “for the applicant’s benefit”, the court said. The court agreed to keep the terms and the sum of the settlement confidential for three years, partly in order not to prejudice a “large cohort of similar proceedings”.
It comes after a protracted legal battle in which the commonwealth vehemently fought the case.
Bridie Murphy, part of DIZ18’s legal team at Maurice Blackburn, welcomed the finding and added that the treatment of children in immigration detention was a “national shame”.
“Today’s judgment signifies the end of a long and hard-fought case. This case has been running through the courts for most our client’s life.”
“We are pleased that a measure of justice has been obtained for her and her family. We are proud to have represented them in this important matter.
“The condition and treatment of children in immigration detention is a national shame. That the commonwealth had to be taken to court to ensure this child received medical care is astounding.
“This case, and those that remain before the Court, are an important reminder of why no child should be held in immigration detention,” Murphy said.
“We urge the commonwealth to ensure that all people who seek safety in Australia are treated fairly and have access to proper and timely medical care.”
