Sripathi v Central Coast Local Health District [2022] NSWSC 378

Supreme Court New South Wales

Medium Neutral Citation: Sripathi v Central Coast Local Health District [2022] NSWSC 378 Hearing dates: 23 March 2022 Date of orders: 07 April 2022 Decision date: 07 April 2022 Jurisdiction: Common Law Before: Harrison J Decision: Order that the defendant make an interim payment in the sum of $60,000 to the plaintiff within 28 days. Catchwords: CIVIL PROCEDURE – negligence – medical negligence – application for interim payment under s 82 of Civil Procedure Act 2005 – whether if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant – where competing expert medical opinions concerning liability Legislation Cited: Civil Liability Act 2002 (NSW), s 5O Civil Procedure Act 2005 (NSW), s 82 Cases Cited: Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106 Category: Procedural rulings Parties: Jedidiah Sripathi by his next friend Rishita Sripathi (Plaintiff) Central Coast Local Health District (Defendant) Representation: Counsel: M Cleary (Plaintiff) J Downing SC (Defendant)

Solicitors: Law Partners Personal Injury Lawyers (Plaintiff) McCabe Curwood (Defendant) File Number(s): 2020/208164 Publication restriction: Nil

Judgment 1. HIS HONOUR: By notice of motion filed on 12 October 2021, the plaintiff seeks an order pursuant to s 82 of the Civil Procedure Act 2005 for an interim payment in the amount of $60,000. The application is opposed. 2. The proceedings were commenced by statement of claim filed on 15 July 2020. The plaintiff alleges that he sustained catastrophic injuries as the result of the mismanagement of his birth at the defendant's hospital in August 2015. He is now left with diplegic and ataxic type cerebral palsy with severe developmental cognitive impairment. It is alleged that the plaintiff's injuries would have been averted if gestational diabetes had been diagnosed and appropriately treated during his mother's pregnancy and if an early decision had been made to move to a Caesarean delivery. The plaintiff's head was delivered using vacuum extraction and then shoulder dystocia was encountered which was difficult to overcome. The plaintiff was eventually delivered vaginally. 3. On behalf of the plaintiff it is submitted that very substantial damages will be awarded in the event that the plaintiff succeeds. The plaintiff's parents are in no financial position to provide adequate care at the required levels of support. Based upon expert rehabilitation opinion, the provision of assistance to the plaintiff will have a material effect upon his development. Conversely, any delay in the provision of adequate support at his age will inevitably have a substantial adverse impact upon his likely progress. 4. For example, the plaintiff's solicitor, Ms Gillian Potts, deposes to the following matters in her affidavit dated 11 October 2021: "7 The plaintiff has numerous disabilities and requires significant care…. 8 As a result of the family's immigration status, the plaintiff's family no longer have access to Medicare which expired in March 2020. This has resulted in the plaintiff not having access to medical and allied health therapy services as the family do not have the financial means to pay for the required treatment and therapies. 9 The plaintiff requires urgent ongoing treatment, however the most pressing is physiotherapy treatment and a review by a specialist orthopaedic clinic in order to ascertain whether the plaintiff requires surgery. Without this intervention there is a real concern that the plaintiff will lose his ability to walk. If this medical intervention is not undertaken, the plaintiff is also at risk of losing the ability to complete transfers and will be required to be lifted by his carers or will require the use of a hoist to undertake tasks such as sitting on the lounge, sitting on a toilet and getting in and out of the shower. 10 The family home requires immediate modifications, particularly to the bathroom, to assist with the bathing and care for the plaintiff. At this stage the bathroom access is deemed dangerous by the occupational therapist." 1. Ms Potts was not challenged on this evidence. 2. Section 82 of the Act is in these relevant terms: 82 Court may order interim payments (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 defendant 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. (4) The court may not make such an order if the defendant satisfies the court that-- (a) the defendant is not insured in respect of the risk giving rise to the plaintiff's claim for the recovery of damages, and (b) the defendant is not a public authority, and (c) the defendant would, having regard to the defendant's means and resources, suffer undue hardship if such a payment were to be made. (5) The court may order a defendant to make one or more payments of such amounts as it thinks just, but not exceeding a reasonable proportion of the damages that, in the court's opinion, are likely to be recovered by the plaintiff. (6) In estimating those damages, the court is to take into account any relevant contributory negligence, and any cross-claims, on which the defendant may be entitled to rely. (7) … 1. The parties both drew attention to Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106 concerning the interpretation and application of s 82(3)(c) of the Act: "[23] … it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order… [25] Returning to the words 'would obtain judgment' in s 82(3)(c), I express my respectful disagreement with the observation of Brereton J in Spencer (see [15] above). These words do not introduce a requirement of certainty, or near certainty, of success at trial into the test to be applied. The word 'satisfied' attracts the balance of probabilities test. The words that follow identify the future occurrence that the Court must be 'satisfied' will occur. Taken together, the words do not require a plaintiff to do more than show that it is more probable than not that he or she will succeed at the trial in obtaining judgment for substantial damages. The primary judge's emphasis on the word 'would' before the words 'obtain judgment' (Judgment [24], quoted at [18] above) and Brereton J's emphasis of the word 'will' before the word 'succeed' ([10] of the primary judge's Judgment, quoted at [15] above) suggest that their Honours were requiring that a plaintiff establish more than that success at the final hearing is probable. … [32] The application for interim payment required the primary judge to undertake a preliminary assessment, upon the basis of the evidence before him and on the balance of probabilities, of whether, if the proceedings went to trial, the applicants would obtain substantial damages. Such an assessment is in my view to be made upon the basis of the evidence put before the court as to the substantive issues and not on the basis of mere speculation as to what might or might not be the evidentiary position at the final hearing. Thus, it was for the judge here to consider on the negligence issue such of the evidence that was before him as was entitled to weight. The report of Associate Professor Murray was entitled to be given weight but, for the reasons I have given, the report of Professor Fulde was not. The report of Professor Morris in support of the applicants' case was, because of its paucity of reasoning, entitled to little weight. … [42] Despite the approach taken in the English cases, it is not clear, in my respectful opinion, why the burden of proof should be set high simply because 'litigation of its nature involves no certainties'. Any determination by a court as to whether something will happen in the future involves uncertainty to a greater or lesser degree. That does not mean, however, that in a civil case the determination must be made by reference to anything other than the usual standard of proof on the balance of probabilities." 1. These principles are not controversial.