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[2010] NSWSC 74
procedural. Plaintiff's motion for an interim payment under s 82 Civil Procedure Act 2005 dismissed; costs of the motion are costs in the cause (Orders).
The plaintiffs, parents of a man who died after attending an emergency department, applied for a $20,000 interim payment under s 82 of the Civil Procedure Act. The judge reviewed expert reports: two for the plaintiffs finding negligent assessment and causation, and one for the defendant finding no departure from competent practice. Because the experts' written opinions were directly in conflict and the judge had no opportunity to hear oral evidence to resolve the conflict, the court could not be 'comfortably satisfied' that the plaintiffs would obtain judgment for substantial damages at trial as required by s 82(3)(c). The interim payment application was dismissed and costs were ordered as costs in the cause.
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1,796 words · generated 14/09/2026
This was an interlocutory application in a medical negligence action. The plaintiffs, the deceased's father and step-mother, sued Hunter New England Area Health Service after their 25-year-old son, Matthew Forster, attended the emergency department of Manning Base Hospital on 11 August 2007 with worsening abdominal pain and died the next day of peritonitis from a perforated duodenal ulcer (statement of claim filed 14 August 2009; factual chronology at [1], [12]-[20]). On 15 February 2010 the plaintiffs sought an interim payment of $20,000 under s 82 of the Civil Procedure Act 2005 (the Act). The application was determined on the papers and oral submissions before Hulme J, who delivered judgment on 19 February 2010 dismissing the motion and ordering costs in the cause (orders).
No linked legislation citations have been extracted yet.
The core procedural issue was statutory: s 82(3)(c) permits an interim payment only where the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages. That requires a preliminary assessment of both liability and likely damages ([4]-[5]). The plaintiffs relied on two medical experts (Dr Lindsay Murray, emergency medicine specialist; Professor David Morris, surgeon), both of whom formed opinions that the Manning Base Hospital treatment fell below the relevant standard and that the breach caused death. The defendant relied on Dr Gordian Fulde, an experienced emergency medicine professor, who expressed the contrary opinion that there was no departure from competent practice ([12], [20]-[23]). Hulme J found these expert reports to be directly opposed and irreconcilable on the written material before the court; absent oral evidence to test and resolve these conflicts, the court could not reach the required level of satisfaction under s 82(3)(c) and dismissed the application ([24]-[26]).
Statutory threshold: s 82(3)(c) sets a statutory precondition for interim payments, the court must be satisfied the plaintiff "would obtain judgment for substantial damages" if the matter proceeded to trial ([4]). Matouk v Hungry Jacks was treated as the leading local authority on approach: the court must be satisfied on both liability and likely damages and, in Matouk, that satisfaction was articulated as being "comfortably satisfied" ([5]). Hulme J accepted the parties' approach that the Matouk standard could be applied in the present case, although he noted possible alternative formulations (e.g. "toward the top of the flexible scale") and declined to decide the precise formulation definitively ([6]-[7]).
Evaluation of evidence: Hulme J's task was not to determine liability finally, but to make a preliminary assessment. That assessment requires weighing the available evidence and, where possible, resolving any conflicts sufficiently to be satisfied of the statutory prerequisites ([5], [24]). Here the plaintiffs' evidence on liability principally rested on two expert reports, and the defendant relied on a single expert report taking the opposite view. Hulme J observed that the experts were "diametrically opposed" and that, because he had only the reports (not their oral testimony) and no opportunity to hear them challenge one another, he could not resolve the conflict on the papers ([25]-[26]). Consequently he could not conclude that the plaintiffs would obtain judgment at trial to the required degree of satisfaction and was obliged to dismiss the interim payment application ([26]).
Discretionary considerations such as the plaintiffs' financial need were acknowledged (and the judge noted Schott Kem that need is not a precondition), but they could not overcome failure to satisfy the statutory threshold ([9], [28]). Costs of the motion were ordered as costs in the cause consistent with Hardwick v McSwiney (No 3) (referred to at [6] and applied at [29]).
Before this judgment:
This judgment:
After this judgment:
Quotation: "Accordingly the court must make a preliminary assessment in relation to both liability and likely damages when an order is sought under this provision (Matouk v Hungry Jacks at [10])." [5]
Quotation: "Where there are expert opinions that are diametrically opposed, I find myself unable to conclude at the level of comfortable satisfaction that the plaintiff would obtain judgment." [26]
Quotation: "The material relied upon by the plaintiffs as to their needs certainly is capable of evoking considerable sympathy for their plight. Regrettably, however, the application fails on the first of the issues that must be determined under s 82(3)(c)." [28]
Quotation of statutory text (s 82, selected): "(3) The court may not make such an order unless: (a) the plaintiff has admitted liability, or (b) the plaintiff has obtained judgment ... or (c) the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages." [4]
In such fact patterns the practical consequence is that plaintiffs risk failure of their interim payment application unless they can either: (a) produce expert evidence that is not directly contradicted on the papers, or (b) obtain a procedural setting in which expert evidence can be tested sufficiently to enable the court to be comfortably satisfied.
Within this judgment the court placed Matouk v Hungry Jacks in central importance and followed its approach to the statutory task under s 82 ([5]). Hulme J also referred to Hardwick v McSwiney (No 3) for the costs approach and followed the reasoning about costs ([6], [29]). The judgment cites other authorities (e.g. Schott Kem on need, Makita on possible report admissibility) and demonstrates how those authorities inform the exercise of discretion and evidentiary caution on an interlocutory application ([9], [23]). The decision itself reinforces and applies the Matouk approach: a preliminary assessment of liability and damages is required and cannot be satisfied where expert opinions are irreconcilably opposed on the papers ([5], [26]).
Because the court accepted the parties' agreement to proceed on Matouk's formulation and reserved the question of the precise standard (observing alternative formulations exist), the judgment is cautious rather than definitive about the exact degree of satisfaction required ([6]-[7]).
Precise standard of satisfaction: Hulme J noted competing formulations, 'comfortably satisfied' (Matouk) versus 'toward the top of the flexible scale', but declined to pronounce a final view ([6]-[7]). Which articulation is authoritative in every s 82 context remains open.
The weight to be given to conflicting written expert reports: Hulme J found that directly opposing reports on paper may be dispositive against an interim payment. But the circumstances in which a court may nonetheless resolve such conflicts on paper (for example where one report is significantly more thorough or is undermined by factual inaccuracies in the other) are not exhaustively addressed ([23], [25]-[26]).
Role of procedural devices: The judgment does not explore whether or how preliminary processes (such as expert conclaves, court-ordered joint reports, or directions for viva voce evidence on urgent bases) might be used to enable a court to reach the necessary satisfaction for an interim payment where expert conflict threatens to defeat an otherwise meritorious claim.
Interaction with coronial findings: Hulme J noted the coroner's inquest might clarify matters affecting the civil case ([27]). The relationship between forthcoming coroner's findings and the s 82 assessment was not explored in depth, leaving open how definitive coronial conclusions may influence future s 82 applications.
Admissibility and weight of expert reports on interlocutory applications: Hulme J noted potential admissibility issues (Makita) but regarded the defendant's report as properly considered for the interlocutory application ([23]). The limits of that approach and whether stricter admissibility screening should apply at interlocutory stages is not settled here.
Final note: This analysis summarises and explains the court's reasoning and the decision contained in Forster v Hunter New England Area Health Service [2010] NSWSC 74, grounded in the judgment. It is legal information, not legal advice. I can make mistakes. Before acting on this, relying on it, or using any draft derived from it, get a qualified Australian lawyer to check it.
CITATION : Forster v Hunter New England Area Health Service [2010] NSWSC 74
DECISION : The plaintiff's motion is dismissed. Costs of the motion are costs in the cause.
CATCHWORDS : PROCEDURE - miscellaneous procedural matters - other matters - claim for interim payment under s 82 Civil Procedure Act 2005 - conflicting opinions in reports of experts as to whether breach of duty of care - inability of Court to resolve conflict on basis of reports - inability to be satisfied that the plaintiffs would obtain judgment
LEGISLATION CITED : Civil Liability Act 2002 Civil Procedure Act 2005
Hardwick v McSwiney (No 3) [2010] NSWSC 3 CASES CITED : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Matouk v Hungry Jacks [2009] NSWSC 1176 Schott Kem Limited v Bentley [1991] 1QB 61
TEXTS CITED : Ritchie's Uniform Civil Procedure NSW, LexisNexis Butterworths 2005
Paul Forster (First plaintiff) PARTIES : Mandy Forster (Second plaintiff) Hunter New England Area Health Service (Defendant)
COUNSEL : Mr J Anderson (Plaintiff) Mr M Fordham (Defendant)
SOLICITORS : TLlawyers Gild Insurance Litigation Pty Ltd
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
20394/2009 Forster & anor v Hunter New England Area Health Service
1 HIS HONOUR: The plaintiffs are the father and step-mother of the late Matthew Paul Forster. They filed a statement of claim on 14 August 2009 in which they seek damages for medical negligence. It is pleaded that their son was taken to hospital by ambulance just after 9:00am on 11 August 2007 complaining of abdominal pain which had been present for a week but getting worse. After an initial examination and collection of blood samples it is claimed that the defendant either discharged the deceased or permitted him to discharge himself. He died the following morining as a result of peritonitis secondary to a perforated duodenal ulcer.
2 The defendant has filed a defence in which liability is denied and a defence pursuant to Section 5O Civil Liability Act 2002 is raised.
3 By notice of motion filed by leave in court on Monday of this week the plaintiff seeks an order pursuant to s 82 of the Civil Procedure Act 2005 that the defendant make an interim payment in the sum of the $20,000 in favour of Mr Forster.
4 Subsections (1) - (3) of section 82 are relevant: (1) In any proceedings for the recovery of damages, the court may order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings.
(2) The court may make such an order against a defendant on the application of the plaintiff at any stage of the proceedings.
(3) The court may not make such an order unless: (a) the plaintiff has admitted liability, or
(b) the plaintiff has obtained judgment against the defendant for damages to be assessed, or
(c) the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.
5 I was taken to the decision of Mathews AJ in Matouk v Hungry Jacks [2009] NSWSC 1176 where her Honour indicated an approach to the application of the section which I was invited to follow. It was pointed out by Mathews AJ that pursuant to s 82(3)(c) an order can be made only if the court is satisfied of two matters: first, that if the proceedings went to trial the plaintiff would obtain judgment against the defendant or defendants; secondly, that the judgment would be for "substantial damages". Accordingly the court must make a preliminary assessment in relation to both liability and likely damages when an order is sought under this provision (Matouk v Hungry Jacks at [10]).
6 Mathews AJ also raised a question as to the level of satisfaction which the court should reach in relation to those two matters in s 82(3)(c). She concluded that she should determine such matters upon the basis of whether she was "comfortably satisfied". What was said in this respect by Mathews AJ was followed by Harrison J in Hardwick v McSwiney (No 3) [2010] NSWSC 3 at [8]-[9]. However, later in his judgment, Harrison J referred to commentary upon the section in Ritchie's Uniform Civil Procedure NSW, LexisNexis Butterworths, and quoted in part the following: "Obtaining satisfaction that the plaintiff would obtain judgment does not involve determining the issue of liability. The court is required to satisfy itself that the plaintiff is likely to succeed according to the ordinary standard of the balance of probabilities. What that standard will require in any particular case must obviously depend upon the individual circumstances, but in determining whether the plaintiff has discharged its onus it will be proper for the court to have regard to the uncertainties of litigation and to require satisfaction 'toward the top of the flexible scale' of the civil burden of proof: Ricci Burns Ltd v Toole [1989] 1 WLR 993; Schott Kem Ltd v Bentley [1991] 1QB 61; [1990] 3 All ER 850; Frellsen v Crosswood Pty Ltd (1992) 15 MVR 343.
7 "Satisfaction toward the top of the flexible scale of the civil burden of proof" may well be different to being "comfortably satisfied". However, my reasons for determining the present application do not turn upon a precise identification of the level of satisfaction required so I do not express a concluded view about it. It was the agreed position of the parties before me that I could proceed upon the basis identified by Mathews AJ and that is what I propose to do.
8 As to the meaning of "substantial damages", it appeared to Mathews AJ that it could be interpreted to mean either damages which are not merely nominal, or alternatively, damages in a large (although unspecified) sum. She concluded that it was inappropriate to ascribe any universal or definitive meaning to the phrase, preferring to regard the matter as dependant upon the circumstances of the individual case. Those circumstances might include the nature and identity of the parties, the amount sought in the proceedings, and, to a lesser extent, the reason why the plaintiff is seeking an interim payment under the section (Matouk v Hungry Jacks at [40]).
9 Finally Mathews AJ referred to authority for the proposition that evidence of the plaintiff's need is not a precondition to the exercise of the discretion to order an interim payment: Schott Kem Limited v Bentley [1991] 1QB 61. Nevertheless, because the court has the discretion as to whether to make an order, she regarded evidence of a plaintiff's need as always a relevant matter. 10 Another aspect of s 82(3) to consider is the meaning of "would obtain judgment". In Eldridge v Royal Alexandria Hospital for Children & Anor [2008] NSWSC 886, Grove J referred to (at [14]) and applied (at [28]) what was said by Brereton J in Spencer v Australian Capital Territory [2007] NSWSC 303 that the requirement in s 82(3)(c) is for the claimant to show that he/she will succeed as distinct from showing that he will probably succeed.
11 This is not the first application of its kind to have been made to the Court. On 14 December 2009 a similar application was made and it resulted in consent orders being made by McCallum J on 15 December 2009 which included that the defendant make an interim payment in favour of the first and second plaintiff in the sum of $20,000.
12 On the question of liability I was referred to the reports of three experts. One is by Dr Lindsay Murray who describes himself as an emergency medicine specialist. The qualifications and experience set out in his report would certainly indicate that that description is appropriate. Dr Murray reviewed all of the available medical records. They indicate that Matthew Forster was 25 years 2 months old at the time of his death. He had a past medical history that included some sort of central nervous system infection that had left him with cognitive deficits necessitating the employment of carers to assist his father in looking after him.
13 At 0803 hours on Saturday 11 August 2007 an ambulance was called to Matthew's home because he was complaining of abdominal pain. He would not allow the officers to examine or touch him in any way and would not answer questions. He was conveyed to the Manning Base Hospital at 0908 hours and was triaged at 0913 hours.
14 At triage Matthew was noted to be thin and pale, bent over and complaining loudly of abdominal pain. His carer was present and a history of codeine addiction was noted. He was seen by Dr Abdalla at 0913 hours. The doctor took a history from the carer that Matthew had complained of abdominal pain for one week but getting worse over the past three days. He was made aware of a past history of leukaemia, previous meningitis or encephalitis with persistent cognitive defects, a previous admission to the mental health unit, and codeine addiction. He was also aware that Matthew had not been eating recently.
15 Dr Abdalla found Matthew to be bent over, loud and requesting analgesia. He noted his pulse and oxygen saturation but did not record the blood pressure or temperature at that time. He thought his distress was intermittent and that his abdominal signs were "inconsistent" but that there was voluntary guarding. He did not record whether or not bowel sounds were present.
16 Dr Murray noted that Dr Abdalla's clinical impression, provisional diagnosis or differential diagnosis were not recorded but that he ordered the administration of a liquid mixture containing antacid and lignocaine viscous and some blood investigation. Blood samples were collected at 1040 hours.
17 Dr Abdalla noted that the patient did not wait for the results of the blood tests and that in discussions with Matthew's father and the carer he advised that he could be reviewed at the hospital as required and could see his local medical officer to get the results of the blood tests.
18 The nursing notes include one at 1000 hours that Matthew was very anxious and complaining of severe abdominal pain and one at 1015 hours noting that he was demanding and begging for pain relief.
19 Matthew was dead on arrival at the Manning Base Hospital at 1103 hours the following day, 12 August 2007. A post-mortem examination was carried out on 15 August 2007.
20 Dr Murray's report concludes with the following summary and opinion: "Matthew Forster died as a result of a perforated duodenal ulcer. The perforation probably occurred in the days prior to his presentation to the Manning Base Hospital on 11 August 2007. The ulcer itself would have been present at least some weeks prior to that. The ulcer developed as a complication of excessive doses of ibuprofen that were ingested because of his excessive ingestion of "Nurofen Plus" in order to obtain codeine for which he had developed an addiction.
On presentation to Manning Base Hospital, he was in severe pain and had a low blood pressure. This indicated the serious problem of an "acute abdomen" which mandates further urgent investigation in hospital under the care of a general surgeon to establish a diagnosis. In the interim, adequate analgesia should have been provided. Assessment of Matthew's condition by history and physical examination was rendered difficult by his cognitive deficits. This renders investigations more important. Blood tests were ordered but the results, which indicated serious intraabdominal pathology, were not acted on. Matthew was allowed to leave the hospital. The circumstances surrounding his discharge are unclear. It is likely that Matthew did not have the cognitive capacity to ensure competence to make a decision to leave against medical advice. It is likely that provision of adequate analgesia would have made Matthew more likely to agree to stay. There is no evidence that further investigation of his pain with X-rays or CT scans was considered. There were no arrangements made for the results of blood tests to be checked and acted on.
If Matthew's perforated viscus (in his case duodenum) had been correctly diagnosed on X-ray or CT scan, the appropriate management would have been admission to hospital for an urgent laparotomy and repair. Ongoing fluid resuscitation and analgesia would also have been provided. A general surgeon would be more qualified than myself to comment on his prognosis had he been operated on that day but I expect that it is more than likely that he would have survived."
21 There is a report of Dr David Morris, Professor of Surgery at the University of New South Wales of 29 December 2009. Professor Morris appears to have reviewed the same material that was reviewed by Dr Murray and he also had the benefit of Dr Murray's report. Professor Morris' opinion is as follows: "I believe that Matthew Forster was extremely badly treated. I believe that the assessment of his abdomen was entirely inadequate. I believe that the doctor who did the examination was incompetent and I believe that the failure to ask for surgical review was negligent and the failure to chase the blood results was negligent and the failure to do appropriate abdominal imaging was negligent.
Matthew Forster died of a perforated duodenal ulcer. This is a benign disease which is easily treatable. Death from perforated duodenal ulcer is very unusual with appropriate treatment. At the time of his presentation I expect he already had generalised peritonitis and subphrenic collections. He was at this time already very ill. Had however he had been appropriately treated I believe it is almost certain that he would have made a full recovery from this and should have had a normal expectation of life following this.
I do not believe that Matthew's cognitive defect was an adequate reason for his mismanagement. In patients with none (sic) cognitive impairment the use of investigations such as blood tests and imaging are even more important than in a normal compliant patient."
22 The reports of Dr Murray and Professor Morris were served by the plaintiffs. The defendant has served a report of Dr Gordian Fulde, Professor in Emergency Medicine and Director of the Emergency Department at St Vincent's Hospital. Like the other experts, Dr Fulde is extremely experienced and well qualified to offer an opinion. Dr Fulde was provided with a copy of the statement of claim, a statement of assumptions, the hospital clinical record and the autopsy report. Dr Fulde provided a report which is ten pages in length but his expression of opinion is somewhat terse: "In my opinion, given the instructions of the brief and based on the clinical notes, there was no departure by the Hunter and New England Area Health Service from peer practiced, competent professional management relating to the attendance of the late Matthew Paul Forster to the Emergency Department of Manning Base Hospital on 11 August 2007 at 0913hrs."
23 Mr Fordham, counsel for the defendant, submitted that there were deficiencies in the report of Dr Fulde and that evidence in that form would not be admissible at a trial. Reference was made to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705. That might well be so but it was not submitted that I should not have regard to the opinion of Dr Fulde for the purpose of the present application.
24 The shortcomings in the report of Dr Fulde may be noted but the first issue I am dealing with on this application is a consideration of whether I am satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment.
25 There are two expert opinions that support the proposition that the defendant was in breach of its duty of care. The opinions are also favourable to the plaintiffs on the issue of causation although there are a number of matters in relation to that issue that no doubt will be explored in more detail at trial. On the other hand there is an opposing opinion by an expert who appears to be equally qualified and experienced which is to the opposite effect. I have not had the benefit of hearing the experts give evidence, which would obviously be in more detail than that which appears in the reports. Moreover, I have not had the opportunity to hear their views about the opinions expressed by the others. In these circumstances I am unable to arrive at any resolution of the conflict between the experts.
26 It is not necessary for a successful applicant for an order under s 82 to establish that the evidence is all in the applicant's favour. It may well be that a court determining such an application will be able to make a judgment upon the relative strengths of competing evidence. However, in this case where there are expert opinions that are diametrically opposed, I find myself unable to conclude at the level of comfortable satisfaction that the plaintiff would obtain judgment.
27 An inquest into the manner and cause of Matthew Forster's death is scheduled to be held at Wauchope next month. It is possible that the position will be clearer following the coroner's determination.
28 The material relied upon by the plaintiffs as to their needs certainly is capable of evoking considerable sympathy for their plight. Regrettably, however, the application fails on the first of the issues that must be determined under s 82(3)(c).
29 For the same reasons discussed by Harrison J in Hardwick v McSwiney (No 3) (supra) at [20] I am of the view that the costs of the motion should be costs in the cause.
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Forster
Hunter New England Area Health Service
Plaintiff's motion for an interim payment under s 82 Civil Procedure Act 2005 dismissed; costs of the motion are costs in the cause (Orders).