Boy sues mom for $3.5m b/c he has CP

[MDM4AU 336]

Boy sues mum in $3.5m bid

August 22, 2004

AN Adelaide teenager suffering from cerebral palsy is suing his mother after she crashed into a tree when he was a foetus.

Supreme Court documents claim Sylvia Neave, of Ferryden Park, was negligent and breached her duty of care as a mother to her unborn child.

Under law, Graham Neave, 16, has to sue his mother and SA's compulsory third party insurer, the Motor Accident Commission, in his bid to gain an estimated $3.5 million compensation.

The Queen Elizabeth Hospital also is part of his claim for allegedly failing to treat him "sufficiently early or at all" before his emergency delivery.

The accident happened on Orsmond St, Hindmarsh, in 1988 when Ms Neave crashed her van while she was 8 1/2 months' pregnant.

Graham was delivered by emergency caesarean section at the QEH about three hours after she arrived by ambulance.

According to the statement of claim, he required "vigorous resuscitation" and began having fits after being born. By 10 months, Graham had developed seizures and was later diagnosed with cerebral palsy.

The documents also allege he was deprived of "oxygen-enriched blood" after his mother had a "placental abruption" after the crash which ultimately contributed to his existing condition.

The statement of claim says Graham has speech problems, communicates by sign language, needs crutches to walk and will require domestic help or supervision for the rest of his life.

In her statement of defence, Ms Neave denies her son's injuries were due to her negligence. She claims to have "fainted and lost consciousness prior to the vehicle leaving the roadway".

Graham's claim says his mother "was negligent . . . in that she breached the duty of care owed by a mother to her unborn child".

Ms Neave told the Sunday Mail that while it was difficult being sued by her son, her listing as a defendant was part of the legal process.

The Motor Accident Commission would pay compensation on her behalf if she were found to be negligent. She said Graham, who attends Regency Park Centre for Young Disabled and lives with her, is "semi-independent".

"Most things he does for himself, but he leans on me a bit," Ms Neave said.

"He's amiable and he's got a great sense of humour. He likes to listen to his music at all hours, but he hates thunderstorms."

His father, also Graham, and Ms Neave separated amicably in 1999. He said they had found it difficult for Graham to sue his mother to get compensation for medical costs, past and future economic loss, disfigurement, support services, pain and suffering and loss of enjoyment.

"She is reconciled to the technical state of being the accused but, essentially, it's a fight between insurance companies," Mr Neave said.

As part of the teenager's action against the QEH, Graham's statement of claim says the hospital did not pay enough attention to alleged foetal injuries. He claims the delay in monitoring foetal problems caused "increasing distress and injury".

"The hospital owed duty to (the unborn child) and his mother to exercise reasonable care and skill in diagnosis, treatment and management of (the unborn child) and his mother," the claim says.

"(The QEH) failed to make available . . . appropriate skilled and competent medical and specialist advice, treatment and assistance after the mother was first admitted . . ."

The QEH, in its defence lodged with the court, says the claim should be struck out. It "denies that it is guilty of negligence or in breach of a duty of care". But, the statement adds, the hospital "admits the foetal condition was not monitored by means of a CTG (fetal heart rate monitor) machine".

However, the hospital claims "such monitoring was not required as no abnormality in the heart rate had been noted and the mother had not exhibited any symptoms that called for such monitoring".

Ms Neave's lawyer, Amanda Harley, said the case was "a very interesting legal issue and it's not something that happens very often".

"We are still ploughing through it."

The matter is listed for a final directions hearing on Thursday, when details of the claim will be outlined further.

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