Hardwick v McSwiney (No 3) - [2010] NSWSC 3

CITATION: Hardwick v McSwiney (No 3) [2010] NSWSC 3

HEARING DATE(S): 25 November 2009, 7 December 2009

JUDGMENT DATE :
12 January 2010

JUDGMENT OF: Harrison J

DECISION: 1. Motion dismissed.
2. The costs of the plaintiff's application for an interim payment should be costs in the proceedings.

CATCHWORDS: PRACTICE AND PROCEDURE – Civil Procedure Act 2005 – application for interim payment – medical negligence – failure to follow up after surgery for excision of suspicious tongue lesion – competing expert medical evidence on the acceptability or otherwise of the treatment provided - whether a comparison of the plaintiff's claim and the defence permitted a conclusion (i.e. satisfaction) that if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant – where not possible to be satisfied – order refused

LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Supreme Court Act 1970
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Frellsen v Crosswood Pty Ltd (1992) 15 MVR 343
Matouk v Hungry Jacks Pty Ltd [2009] NSWSC 1176

PARTIES: Suzanne Hardwick (Plaintiff)
Patrick F McSwiney (Defendant)

FILE NUMBER(S): SC 16608/2008

COUNSEL: J O Anderson (Plaintiff)
L R Young (Defendant)

SOLICITORS: Catherine Henry Partners (Plaintiff)
Avant Law Pty Ltd (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

HARRISON J

12 January 2010

16608/2008 Suzanne Hardwick v Patrick F McSwiney
JUDGMENT

1 HIS HONOUR: The plaintiff seeks an expedited hearing. This is referred to later in these reasons. In advance of that the plaintiff seeks an order pursuant to s 82 of the Civil Procedure Act 2005 that the defendant pay her as part of her damages an amount on an interim basis pending the final determination of the proceedings. That section is relevantly 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.

(a) the defendant has admitted liability, or

(b) the plaintiff has obtained judgment against the defendant for damages to be assessed, or

(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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hardwick v McSwiney (No 3)

Details

AGLC: Hardwick v McSwiney (No 3) [2010] NSWSC 3
Case: [2010] NSWSC 3
Decision Date: 12 January 2010

CaseChat Overview and Summary

The case of Hardwick v McSwiney (No 3) involved the plaintiff, Hardwick, seeking an interim payment from the defendant, McSwiney, who was a medical practitioner accused of negligence. The dispute centred around the defendant's alleged failure to follow up after surgery for the excision of a suspicious lesion on the plaintiff's tongue. The matter was heard in the Supreme Court of New South Wales. Hardwick claimed that the defendant's negligence had caused him substantial damages and sought an interim payment under the Civil Procedure Act 2005.

The primary legal issue the court had to decide was whether Hardwick had satisfied the criteria for an interim payment as outlined in the Civil Procedure Act 2005. Specifically, the court needed to determine if there was a comparison of Hardwick's claim against the defence that permitted a conclusion that if the proceedings went to trial, Hardwick would obtain judgment for substantial damages against McSwiney. This required the court to evaluate the competing expert medical evidence presented by both parties, which offered differing opinions on the acceptability of the treatment provided by McSwiney.

The court carefully considered the evidence presented by both parties and concluded that it was not possible to be satisfied that Hardwick would obtain judgment for substantial damages against McSwiney if the proceedings went to trial. The differing opinions of the expert medical witnesses, along with the lack of a clear consensus on the standard of care, meant that the court could not make a definitive finding in Hardwick's favour. Consequently, the application for an interim payment was refused.

Orders