New South Wales Supreme Court CITATION : Sargent v South Western Area Health Service [2010] NSWSC 1506 HEARING DATE(S) : 17 December 2010 JUDGMENT DATE : 17 December 2010 JUDGMENT OF : Garling J EX TEMPORE JUDGMENT DATE : 17 December 2010 DECISION : Interim payment of damages ordered CATCHWORDS : PROCEDURE – Supreme Court procedure – New South Wales – Order for interim payment of damages – Plaintiff a quadriplegic with need for constant care and specialised housing – Whether the court is satisfied, on the balance of probabilities and on the material before it on the application, that the plaintiff would obtain judgment at trial – Whether the plaintiff is required to establish an identified need for interim damages LEGISLATION CITED : Civil Procedure Act 2005 Civil Liability Act 2002 CATEGORY : Procedural and other rulings CASES CITED : Forster v Hunter New England (2010) NSWCA 106 PARTIES : Stephen Roy Sargent (P) South Western Area Health Service (D) FILE NUMBER(S) : SC 2010/037854 COUNSEL : A. Black SC (P) J. Downing (D) SOLICITORS : Stacks Goudkamp Laywers (P) GILD Insurance Litigation Pty Ltd (D) EX TEMPORE Judgment 1 The applicant, Stephen Roy Sargent, seeks an order of the Court pursuant to s 82 of the Civil Procedure Act 2005 for an interim award of damages in the sum of $1,130,000. 2 In support of that motion, the plaintiff has filed extensive evidence which abundantly proves, at the level required for an order of the kind sought, that: (a) he was admitted to Liverpool Hospital, for which the South Area Western Health Service is legally responsible, in March 2009 with injuries sustained as a consequence of falling off his push bike while travelling at about 30 to 40 kilometres per hour; (b) upon admission to Liverpool Hospital, the plaintiff's injuries were initially diagnosed as being discrete fractures of the neck, of the left femur and of the left clavicle. As well, the plaintiff complained of pain and other injuries surrounding the main injuries which he sustained; (c) from time to time whilst an in-patient at Liverpool Hospital, the plaintiff complained of pain associated with his neck upon movement, a tingling feeling in his fingers and numbness in his toes. It was thought by staff at Liverpool Hospital that it was appropriate for a CT scan of the cervical spine to be undertaken. There had not been any earlier CT scan of the cervical spine. The plaintiff did not have a CT scan and continued to complain of increasing pain and symptoms which it appears were associated with a subluxation of C6 on C7 consequent upon a C7 fracture; and (d) the plaintiff is now a quadriplegic. 3 The plaintiff claims damages from the South Western Area Health Service by reason of a breach of its duty to the plaintiff, arising out of the failure to diagnose the C6 fracture and the C6/C7 subluxation. He also claims that there was a failure by the Service to properly treat him whilst he was an inpatient at Liverpool Hospital. 4 It cannot be doubted that, as claimed, the plaintiff was owed a duty of care whilst a patient at the hospital. 5 The defence filed in the proceedings puts in issue that the defendant was negligent. 6 Annexed to an affidavit of Ivan Dzajkovski, solicitor for the plaintiff, which is read on the motion are expert medical reports obtained by the plaintiff in support of the liability aspects of his case. 7 Dr John Raftos, a specialist in emergency medicine, expresses an opinion in a report of 14 April 2010 that the plain X-rays taken of the plaintiff upon admission at Liverpool Hospital clearly showed a fracture dislocation of C6/C7 with anterior displacement of the vertebral body at C7 of about one centimetre. He expresses the opinion that the Hospital's failure to correctly interpret these X-rays represents a major departure from what would have been widely accepted as competent professional practice at the time. He also expresses the opinion that this failure led directly to the plaintiff developing quadriplegia. 8 Ms Elizabeth Lewis, a neurosurgeon in practice in Melbourne, expresses the view that, since the plain X-ray view of the plaintiff's cervical spine was uncertain, a CT scan ought to have been undertaken on or shortly after 21 March 2009 which would in her opinion have "solved the problem and allowed for the appropriate treatment of the cervical structure which probably would have been operative". She puts her opinion in summary in this way: "In summary this man had an unstable fracture of the cervical spine which was not recognised at the time of his admission to hospital. There were a number of clues after the first few days including increasing pain, confinement to bed because of pain, neurological symptoms and finally a catastrophic event". 9 The defendant does not on this motion tender any expert medical opinion, nor adduce any evidence at all. Whilst my remarks are not apt to indicate any final view about liability, the clear view of the experts, upon which the plaintiff relies on this application, is that there has been well demonstrated a breach of duty of care and a breach which is causally related to the plaintiff's quadriplegia. 10 Section 82 of the Civil Procedure Act permits the order of an interim payment at any stage of the proceedings. It also permits payments to be ordered on one or more occasions. 11 Section 82(3) of the Civil Procedure Act limits the exercise of the power to award interim payments. It provides: "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". 12 Section 82(5) is also relevant. It is in this form: "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". 13 Section 82 of the Civil Procedure Act was considered most recently by the Court of Appeal in Forster v Hunter New England Area Health Service [2010] NSWCA 106. The Court of Appeal held that the test to be applied in considering applications under s 82(3) is that the words "would obtain judgment" in s 82(3)(c) simply mean that the Court must be satisfied on the balance of probabilities that that event, on the material before it on the application, would occur: see Macfarlan JA at [25], McColl JA agreeing. 14 The plaintiff has provided written submissions which support the application. The defendant, for whom Mr Downing of counsel appears, does not consent to the orders but does not put any submission in opposition to the orders sought in the notice of motion. In the absence of the defendant tendering any evidence this stance on the part of Mr Downing is unsurprising and in fact reflects a responsible attitude of counsel to the application. 15 I am satisfied on the evidence before me, which I emphasise may be entirely different to the evidence at a trial, that the plaintiff would obtain judgment for substantial damages against the defendant if this matter went to trial. I am satisfied of that because the expert evidence which is tendered is clear and all points in one direction, namely, there has been a clear breach of the hospital's duty and it is a breach which has resulted in the plaintiff's quadriplegia. 16 The Court retains a residual discretion as to whether to make an order. There is no reason in this case not to make an order and no suggested prejudice, or other reason, has been advanced by and on behalf of the defendant. 17 The question remains whether the sum sought in the motion is a sum which does not exceed a reasonable proportion of damages that in the Court's opinion are likely to be recovered by the plaintiff. On that question, the evidence presently before the Court is that the plaintiff is a quadriplegic who is living in rented accommodation and being cared for by the provision of 37 hours per week of commercial care, and for the balance of the week, 7 days a week 24 hours a day, by his wife, from whom he has been separated for some time prior to this accident, and occasionally by his daughters. At the moment, the plaintiff is unable to work. He is 59 years of age and whether he will ever be able to return to work is to be doubted. 18 The house in which the plaintiff presently lives is, as I indicated, rented. It is not entirely suitable for a quadriplegic to live in although the plaintiff has made some minor modifications to it. The plaintiff's own home is unsuitable for the plaintiff to live in, in his current condition. That house is presently on the market and it can be reasonably anticipated that over the next six months it will be sold. 19 The plaintiff has provided a comprehensive report as to his current care requirements. However one describes the components of that care it is quite clear that the plaintiff requires the presence of some assistance for every hour of every day, and every day of the year. I do not mean by making that statement that he requires constant nursing or other specialised care. But his condition is such that he cannot be left alone. 20 The quotations for provision of 24 hour care range between a little under $5,500 per week to a little under $7,000 per week. A median figure of that is somewhere in the order of $6,250 a week. Shortly put, that is about $325,000 a year. 21 Whilst I have not looked at the plaintiff's life expectancy nor attempted to make any calculations on the relevant tables required under the Civil Liability Act 2002, the experience of this Court in determining these cases suggests that the cost of provision of future care will be the major component of the plaintiff's claim for damages. His care component, if his life expectancy approaches what is commonly seen in quadriplegic cases, namely an ordinary life less 10 percent, which in this case is a further 20 years, is likely to be in order of at least $4M to $5M. 22 Together with that, the Court's experience in cases of this kind suggests that the costs of purchasing or altering appropriate accommodation together with transport and like expenses mean that it would not be unreasonable to assess the plaintiff's claim as being one in which, if he were entirely successful, and without deduction on account of contributory negligence or any other like issue, he would recover something in the order of $6M to $8M. 23 In those circumstances, I am satisfied that the order which is sought does not exceed a reasonable proportion of the damages that the plaintiff might recover. 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. 26 However, I wish to make it plain that in making this order for an interim payment the sole purpose which I envisage is that the sum of money ordered will be used for the benefit of the plaintiff himself, that the money will be used on such essential expenditure as relates to his injuries and disabilities, that the money will not be used for the payment of any third party or other debts, and that it not be used as a payment of legal fees to proceed with this case. 27 It seems to me, although I express no concluded view, that if evidence was obtained that the monies were being used for purposes other than which I have indicated it may be open to a defendant to move the Court to rescind the order for interim payment of damages. However, there is no need to make any final determination upon that issue. 28 In all of those circumstances I order that: Orders (1) Pursuant to s 82 of the Civil Procedure Act the defendant is to pay to the plaintiff the sum of $1,130,000 by way of an interim payment of the damages sought to be recovered in the proceedings. (2) That this interim payment is to be credited against any settlement or verdict obtained by the plaintiff or else it is to be repaid by the plaintiff to the defendant if the plaintiff's proceedings are unsuccessful. (3) The monies subject to order of interim payment of damages are to be paid in this manner: (a) The sum of $50,000 is to be paid by the defendant to the plaintiff on or before 4pm on Thursday 23 December 2010; (b) The sum of $1,080,000 is to be paid by the defendant to the plaintiff on or before 4pm on Thursday, 24 February 2011. (4) Costs of the motion are costs of the cause. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.