The plaintiff underwent an operation to deal with a foreign mass which had been found on her left kidney. The operation took place at Port Macquarie Private Hospital on 19 November 2013.
During the course of the operation, ligaclips were applied to the right renal artery, it is alleged, and when the operation was concluded those ligaclips were not removed until found at a later time. As a result, the plaintiff has no effective kidney function and must now, it appears, rely on dialysis for the rest of her life. The plaintiff has brought proceedings against the renal surgeon.
Four particulars of negligence are identified in paragraph 13 of the Statement of Claim as follows:
(a) Failure to identify the right renal artery as supplying blood flow to the Plaintiff's healthy right kidney.
(b) Applying ligaclips to the right renal artery by mistake.
(c) Failing to remove the ligaclips from the right renal artery before closing the surgical wound.
(d) Failing to conduct a proper and thorough inspection of the surgical area before closing the surgical wound.
The defence admits negligence in respect of particulars (c) and (d) in these terms:
In relation to paragraph 13 of the Statement of Claim, the defendant:
(a) admits that he was negligent as particularised in sub-paragraphs (c) and (d);
(b) does not admit the balance of the paragraph.
There are issues identified about the obtaining of dialysis for the plaintiff and whether it is necessary for that dialysis to be on a home-care basis or within a hospital setting. Those issues have been complicated by the age and capacity of her husband to assist in that regard.
It seems fairly clear from the affidavit of Shoshana Jean Radnan sworn 28 February 2018 and from the correspondence annexed to that affidavit that the considerable cost involved in dialysis prompted an application being made by the plaintiff to the defendant for an interim payment under section 82 of the Civil Procedure Act 2005 (NSW).
Stewart v Chee [2018] NSWSC 263 | Case summary | Zoe
The defendant moved commendably expeditiously to agree to such an interim payment of $100,000.
It is not in issue now between the parties whether the conditions in s 82 that need to be established have been established. The only issue between the parties concerns the form of the order in relation to the payment of the interim amount.
The plaintiff has proposed the following order:
That pursuant to s 82 of the Civil Procedure Act 2005 (NSW) within 28 days of the date of this order, the defendant to pay the plaintiff the sum of $100,000 as an interim payment of the damages sought to be recovered in the proceedings.
The defendant has proposed an order in the same terms but with the addition of the words at the end, "for the purpose of dialysis care and treatment".
There has been an exchange of correspondence between the parties since the contention in the form of those orders arose. It is that issue which has come before me now for determination.
The plaintiff points to a number of decisions suggesting that it is not necessary for a plaintiff to show a need for an interim payment and that any orders made do not contain any condition as to the use of the money. Reference has been made in particular to two judgments of Garling J in Sargent v South Western Area Health Service [2010] NSWSC 1506 and Munsie v Munsie [2012] NSWSC 479.
The defendant relies also on those decisions because of remarks that were made about the use of the money. The defendant also relies on other cases which point to the purpose or intention of the plaintiff in the use of the interim payment having been taken into account as a discretionary consideration. The defendant submits that it is a consideration that should be taken into account in determining whether it is just for the payment to be made.
The plaintiff in the recent correspondence has indicated that she does not propose to apply the moneys towards her litigation costs. The defendant submits, however, that the plaintiff does not clearly indicate that the interim payment will in fact be used for the purposes of dialysis care and treatment.
In Sargent, Garling J said:
[24] There is one further issue which has caused me to reflect on whether the order sought should be made. On one view, making an order for the interim payment of damages does not in any way constrain the plaintiff as to how that money might be spent. By that I mean it would be open to the plaintiff to spend the money in any way he sees fit. He may even pay his lawyers in advance of the case being determined. He may choose in the particular circumstances of this case if his wife brings Family Court proceedings to use it to pay out such interest as his wife may have in the matrimonial property. It therefore occurred to me that in the exercise of my discretion I should be satisfied that there was a need established for the plaintiff to the particular sum of money involved before I made the order.
[25] However, it is clear from the decision of the Court of Appeal in Forster that it is not an essential element for the making an order under s 82 for the plaintiff to demonstrate evidence of need. In particular, the remarks of Sackville AJA in [41] make it plain that it would be wrong to require the plaintiff to establish an identified need. Accordingly, I do not require the plaintiff so to do.
When considering a similar application his Honour said in Munsie v Munsie at [26] that the authorities on s 82, broadly put, do not limit orders for part payment only to those in which a need has been established. His Honour made reference to his earlier decision in Sargent and to the decision of the Court of appeal in Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106 particularly at [41] in the judgment of Sackville AJA. His Honour then said:
[30] Further, whilst I am not required to be satisfied about the use to which the money which is being sought would be put, it does strike me that in considering what is "just" in the particular circumstances of this case, I am entitled to rely upon evidence as to what purpose the plaintiff desires to use the money. It is not essential that need be established. Nor is it essential that I be persuaded that the use to which the moneys are to be put is a guaranteed usage. However, in looking at the respective rights of the parties and what is "just" in the circumstances, it seems to me that I am entitled to look at the likely use of the monies and the timeframe in which the monies will be used and for what purpose.
[31] However, it is not open to me to, and I do not make it a condition of any, order that the monies which I intend to order to be paid to the plaintiff should be used in a particular way. Such an approach is consistent with the general principle where a court does not mandate any expenditure from an award of damages unless there is a specific statutory requirement for it so to do.
In the present case the plaintiff has in fact demonstrated the need for the interim payment, which is for the carrying out of dialysis, probably likely to be conducted on an out-of-hospital basis. It is apparent that that is an expensive exercise.
I am not satisfied that it is a requirement of s 82 that any condition should be imposed and I am comfortably satisfied on the basis of the authorities that it would not be appropriate to impose any such condition in the circumstances.
There is the further matter of the difficulty of enforcing such an order. It cannot be accepted that a defendant would be entitled constantly to inquire of a plaintiff whether in correspondence, interrogatories or otherwise what use was being made of the money and to require proof in that regard. That appears to me to be another indication that it would be inappropriate to impose the condition. In saying that, I accept entirely that, were a condition to be imposed and the defendant became aware that the funds were being otherwise used, the defendant may have a right to come back to the Court to have some variation of the order.
For the reasons I have given, I do not consider that the defendant's order should be the order that is made. Accordingly, the orders that I make are orders 1 and 2 set out in the consent orders provided by the plaintiff.
The plaintiff seeks costs of the application. The defendant resists an order being made that he pay the costs of the application, and submits that the costs should be costs in the cause. The defendant points to the expeditious way that the application for an interim payment was dealt with. The defendant submits that no motion was filed to bring the matter before me, rather, that there was simply a referral from the Registrar.
However, it seems to me that those matters do not really touch on whether costs should be paid by the defendant in relation to this application. The authorities on the point are tolerably clear that conditions such as the defendant sought are not to be imposed and I consider in the circumstances the defendant should pay the plaintiff's costs of today.
[2]
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Decision last updated: 07 March 2018