Dwyer v Browning
[2011] NSWSC 445
•18 May 2011
Supreme Court
New South Wales
Medium Neutral Citation: Dwyer v Browning [2011] NSWSC 445 Hearing dates: 12/05/2011 Decision date: 18 May 2011 Jurisdiction: Common Law Before: Harrison J Decision: Parties to bring in short minutes of order to give effect to these reasons
Catchwords: PRACTICE AND PROCEDURE - Civil Procedure Act 2005 - application for interim payment - whether an order for interim payment could be made that does not exceed a reasonable proportion of the damages that might be recoverable - order for interim payment of $35,000 Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005Category: Procedural and other rulings Parties: Renee Carmel Dwyer (First Plaintiff)
Kurt Franklin (Second Plaintiff)
Dr David Browning (Defendant)Representation: Counsel:
A G J Foel (Plaintiffs)
J L A Lonergan (Defendant)
Solicitors:
Galland Elder Lulham (Plaintiffs)
GILD Insurance Litigation (Defendant)
File Number(s): 2007/265193
Judgment
HIS HONOUR : Renee Dwyer and Kurt Franklin seek an order for an interim payment pursuant to s 82 of the Civil Procedure Act 2005 . They have sued Dr David Browning for damages following a failed sterilisation procedure performed by him on Ms Dwyer in June 2004. Ms Dwyer became pregnant with her son Serge following that procedure and gave birth to him on 23 June 2005. Serge was born with severe disabilities which Ms Dwyer and Mr Franklin claim have resulted, and will continue to result, in them incurring additional costs associated with rearing or maintaining him. Dr Browning has made some interim payments already but opposes the application that he should do so again.
Serge's condition and disabilities
Serge was born with a complicated congenital/developmental abnormality. He had vertebral anomalies, ano-rectal abnormalities, tracheoesophageal problems, together with renal, cardiac and limb problems. The lower segment of his bowel was absent with a later diagnosed fistula to the scrotum. He was treated with a sigmoid colostomy and later underwent a posterior sagittal ano-rectoplasty. He suffered an injury to his bladder during surgery. He has bilateral thumb hypoplasia or underdevelopment for which he has undergone several operations in order to construct an opposable thumb with indifferent success.
Serge is effectively incontinent. This is distressing for him at all times but particularly at school where he requires assistance cleaning himself after accidents. His bowel continence is unreliable and unpredictable and he has episodic build ups with soiling between periods when he opens his bowels but rarely on the toilet.
There is considerable family support. Serge is the last of six children in the family. However, resources are limited and the family home has only one bathroom and toilet. Serge has had something approaching 100 hospital attendances for operations and treatment. Many of these have been extensive and correspondingly distressing for him. His academic and social development has been adversely affected by his medical problems and their consequences.
Projected requirements
Ms Dwyer and Mr Franklin contend that Serge requires a carer with him each day at school to manage his incontinence. At present his elder sister, who is a pupil at the same school, manages this. This is obviously unsatisfactory from every point of view. They seek an interim payment to provide for a commercially employed carer at the rate of $55 per hour during school days. Although the claim is made for a period of 12 months, there is some prospect that the proceedings may be mediated before then or that a hearing could even be allocated. Some further particulars of Serge's condition are outstanding and his need for further surgery has not yet been fully or finally assessed.
There is no dispute that some form of care at school is needed. Dr Browning, however, says that the Department of Education can provide the necessary care free of charge and that there has been a corresponding failure by Serge's parents to mitigate their loss by not taking steps to engage this service. Dr Browning relies upon a document headed "Funding Support" published by the New South Wales Department of Education and Training dealing with "Students with Disabilities in Regular Classes". The document suggests that there are funds available for the provision of a teacher's aide to assist with the care and management of students with disabilities and behaviour disorders. A teacher's aide (special) can be provided to assist teachers in school and community settings in toileting and personal care needs of students at all age and dependency levels, including washing, bathing, showering and changing. They are also available to assist with washing of soiled items of clothing and nappies and in the disposal of used sanitary items.
I am presently unaware of whether or not there are funds available to provide this service to all applicants on demand or whether or not the service would meet Serge's needs in full. In the course of the present application, no sufficiently detailed analysis of the comparable benefits of the departmental service and that provided by a commercial carer has yet been performed. The principal of the school attended by Serge and his sister, has written in support of the need for the provision of a full-time School Learning Support Officer. It is sufficient for present purposes to assume that each alternative would be adequate and appropriate, at least in the short term.
Ms Dwyer and Mr Franklin also seek assistance in extending their home to provide another bathroom and an extra bedroom. These are said to be necessary because of Serge's particular problems and his day to day care needs. For example, Serge often requires the use of the bathroom for extended periods or urgently and without notice. The availability of only one bathroom is wholly unsuitable and inadequate in the circumstances.
The legislative scheme
Section 71 of the Civil Liability Act 2002 provides as follows:
" 71 Limitation of the award of damages for the birth of a child
(1) In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for:
(a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or
(b) any loss of earnings by the claimant while the claimant rears or maintains the child.
(2) Subsection (1)(a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability."
Dr Browning contends that any damages recoverable in respect of Serge's condition are limited to the additional costs associated with rearing or maintaining him. He has foreshadowed an argument that will be run at trial that the price of a commercially retained in-school carer is not a "cost" because the equivalent service is available for free from the department and that any decision to employ such a carer does not carry with it the incurring of an additional cost strictly so called. This argument would appear necessarily to accept that at least to the extent that there were advantages in the services provided by a commercially employed carer over and above those provided by a teacher's aide, there would be an additional cost involved. As I have already indicated, having regard to the present state of the evidence, I am unable to resolve that issue in any satisfactory way.
Dr Browning raises a similar argument with respect to the costs of home modifications. He argues that renovation costs involved in the provision of another bathroom and bedroom are not additional costs associated with rearing or maintaining Serge. He contends that the need for extra rooms of this order is a function of the increased size of the family rather than a function of Serge's particular disability. In that sense Dr Browning argues that the cost is not an additional cost associated with rearing or maintaining Serge by reason of his disability.
Consideration
Ms Lonergan of counsel, who appears for Dr Browning, has indicated that Ms Dwyer and Mr Franklin might reasonably expect to recover damages in the order of $400,000 to $500,000 if the matter proceeds to a hearing. That indication was not made as a concession that damages of that order would be established in the present case, but was quite properly made in response to my specific inquiry about the likely range of damages. That issue is important having regard to the terms of s 82 of the Civil Procedure Act 2005 . That section relevantly provides as follows:
" 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) ... 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) ...
(b) ...
(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)..."
Dr Browning has already made two payments totalling $120,000. The first in the sum of $90,000 was made in July 2009 and the second in the sum of $30,000 was made in August 2010. Mr Foel of counsel, who appears for Ms Dwyer and Mr Franklin, suggests that damages in the order of $2M are likely. In either case, there remains considerable scope for an order for further interim payments without exceeding a reasonable proportion of the damages that are likely to be recovered by the plaintiffs. It is not suggested that if the proceedings went to trial Ms Dwyer and Mr Franklin would not obtain judgment for substantial damages against Dr Browning.
Even restricted to the assessment of damages in an amount suggested by Dr Browning, I am satisfied that an order for an interim payment can be made that does not exceed a reasonable proportion of the damages that might be recovered. That is so notwithstanding the interim payments that have already been made. Rather than embarking upon an analysis of the question of whether or not Dr Browning's arguments concerning the restricted nature of the "additional costs" are correct, it seems to me that Serge's current position is so unsatisfactory that an immediate payment to alleviate the difficulties that he encounters at school ought to be made, limited to a period within which it might be anticipated that the proceedings will be concluded one way or another. Dr Browning has squarely put Ms Dwyer and Mr Franklin on notice that he will contest their entitlement to carer funding on a commercial basis, so that expenditure on such a resource will not automatically be included in damages that might in due course be recovered. Dr Browning has foreshadowed that he will argue that the damages that can be awarded in accordance with the section are constrained by principles relevant to actions for pure economic loss.
It is probable that the parties will be in a position to take a hearing date this year. It is even more likely that a mediation could be arranged much sooner than that. The prospect that a mediation would be successful also appears to be high.
I do not consider that an interim payment for the commencement of building works should be made at this stage. As unsatisfactory as the conditions under which the family is required to operate obviously are, the preferred course would appear to me to limit any further payment to the in-school care needs, and to order a mediation as soon as possible. There are currently no decisions of this Court dealing with the construction of s 71. It would in my view be inadvisable to make an order for a further interim payment that was somehow calculated or assessed upon the foundation that Dr Browning's contentions concerning the section were incorrect. In so saying I am not intending without the benefit of detailed argument from both sides on the topic the express a final view of the matter.
Conclusion
Dr Browning's breach of his duty of care with respect to the failed sterilisation procedure has been admitted. I am satisfied that, if the proceedings went to trial, Ms Dwyer and Mr Franklin would obtain judgment for substantial damages against Dr Browning. No question arises that, having regard to Dr Browning's means and resources, he would suffer undue hardship if such a payment were to be made. The amount of the further interim payment that I propose would not in my opinion exceed a reasonable proportion of the damages that are likely to be recovered by Ms Dwyer and Mr Franklin.
The claim was formulated as one for the sum of $67,750, representing the amount required to pay for the provision of commercial ongoing assistance by a carer at kindergarten for 41 weeks at 30 hours per week at the rate of $55 per hour or $1650 per week. Because I consider that a hearing or a mediation could and should dispose of this matter within six months, or in general terms by the end of the current school year, I am of the opinion that it is just to make an order for an interim payment of $35,000, amounting to a little over one half of the amount suggested. Unless the parties wished to make submissions on the topic, I also consider that the costs of this application should be the costs in the proceedings.
In the circumstances I will require the parties within seven days to bring in short minutes of order to give effect to these reasons, including directions for the further conduct of the matter on a case-managed basis.
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Decision last updated: 23 May 2011
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