Puletua bht Puletua v Sydney Children's Hospital Network

[2022] NSWSC 1795

Supreme Court

New South Wales

Medium Neutral Citation:

Puletua bht Puletua v Sydney Children’s Hospital Network [2022] NSWSC 1795

Hearing dates:

21 December 2022

Date of orders:

21 December 2022

Decision date:

21 December 2022

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) Pursuant to section 82 of the Civil Procedure Act 2005 (NSW), the Defendant make an interim payment to the First Plaintiff of $200,000.00.

(2) Pursuant to section 76 of the Civil Procedure Act 2005 (NSW), the interim payment of $200,000.00 is approved.

(3) The interim payment of $200,000.00 is to be paid into Court within 28 days pursuant to section 77(2) of the Civil Procedure Act 2005 (NSW), and thereafter is to be paid out pursuant to section 77(4) of the Civil Procedure Act 2005 (NSW) as the Court directs.

(4)   The Defendant is to have credit for the interim payment on any final settlement or verdict in favour of the First Plaintiff.

(5)   The First Plaintiff’s entitlement (if any) to interest on damages shall be reduced to take into account receipt of the interim payment.

(6)   Costs to be costs in the proceedings.

The Court notes:

(1)   The interim payment is made with no admission by the Defendant as to whether the First Plaintiff has any entitlement to the various items forming the interim payment and the Defendant reserves its right to argue that entitlement at the trial.

(2)   The Court is satisfied that if the proceedings went to trial the First Plaintiff would obtain judgment for substantial damages from the Defendant in an amount in excess of the interim payment.

Catchwords:

CIVIL PROCEDURE – medical negligence – application for interim payment – where first plaintiff is a person under a legal incapacity – where no defence yet filed – whether the proposed interim payment is for the benefit of the first plaintiff

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 76, 82

Category:

Procedural rulings

Parties:

Meki Junior Puletua by his Tutor Sosefina Puletua (First Plaintiff)
Sosefina Puletua (Second Plaintiff)
Meki Puletua (Third Plaintiff)
Sydney Children’s Hospital Network (Defendant)

Representation:

Solicitors:
Ms E Brookes (First, Second and Third Plaintiffs)
Ms T Moxham (Defendant)

File Number(s):

2022/309937

Publication restriction:

None

REVISED EX TEMPORE Judgment

1. By application made on 21 December 2022, the first plaintiff seeks orders under ss 82 and 76 of the Civil Procedure Act2005 (NSW) (“CPA”) for the payment by the defendant of an interim payment of $200,000. On the application today, Ms Brookes appears for the plaintiffs (really, the first plaintiff, by whom the application is made) and Ms Moxham appears for the defendant.

2. In support of the application, the first plaintiff relies on three affidavits, being an affidavit of Elizabeth Brookes sworn on 6 December 2022, an affidavit of Sosefina Puletua affirmed on 12 December 2022 and an affidavit of Meki Puletua affirmed on 12 December 2022.

3. The proceedings were commenced by way of a statement of claim filed on 17 October 2022. The first plaintiff is currently two years of age, the second plaintiff is his mother and the third plaintiff is his father.

4. The plaintiffs allege that the first plaintiff suffered a hypoxic brain injury together with catastrophic organ failure consequent upon negligent medical treatment at the defendant hospital. As set out in the statement of claim, the first plaintiff says that he attended at the hospital on 28 April 2021 with a history of high fever, cough, cold and a runny nose. A provisional diagnosis of viral upper respiratory tract infection was made and he was discharged the same day. Two days later, he again presented at the hospital with ongoing symptoms including fever, intermittent grunting and increased difficulty in breathing.

5. Approximately an hour later, the first plaintiff was observed to have an elevated heart rate and the hospital initiated acute care. By 5am the next morning, he was transferred to the Children's Short Stay Unit with ongoing symptoms. He was reviewed by a registrar and underwent further treatment and investigation. At 11:35am the next morning, he was reviewed by the respiratory team at the hospital, which recommended the insertion of a chest drain, to drain fluids. By 12:46pm, he was reviewed by the surgical registrar, who noted a deterioration in the symptoms. In any event, treatment continued until he was transferred to the operating theatre for surgical insertion of a chest drain on 1 May 2021. According to the first plaintiff, as a result of failures during that operation, he suffered internal bleeding, leading to hypoxia and hypotension, which led to hypovolaemic cardiac arrest. This led to severe haemorrhaging and multiple organ failure.

6. At the age of two, the first plaintiff has been left with a hypoxic brain injury and spastic dystonic quadriplegia as well as other serious conditions. The first plaintiff alleges that the development of the serious conditions was caused by the negligence of the defendant. The second and third plaintiffs, being the first plaintiff’s parents, also seek damages consequent upon the development of psychiatric illnesses arising out of the catastrophic injuries sustained by their son.

7. The defendant has not yet filed a defence. I invited Ms Moxham to make any submission that she so wished on the issues of liability but, consistent with her instructions, she said that at this stage she did not wish to make any submissions.

8. The parties have agreed that the defendant will make an interim payment to the first plaintiff, who sues by his tutor, his mother. That payment would be in the sum of $200,000. I have been provided with a consent judgment/order signed by the parties. The basis on which the interim payment is sought is, in general terms, that the first plaintiff and his parents and other siblings are currently residing in rental accommodation which is wholly unsuitable for the needs of the first plaintiff. The first plaintiff requires 24-hour care and assistance. Assistance is provided through an ongoing home care service provider.

9. The second and third plaintiffs provide extensive and no doubt full-time care to the first plaintiff. The family currently resides in a rental property in Canley Heights, paying $460 per week. The second and third plaintiff wish to move their family to more suitable accommodation, and they have ascertained that there is a suitable five-bedroom property in the local area which could be rented for $900 per week. Although the first plaintiff was seeking an interim payment of $400,000, the defendant did not agree to pay that amount, but has agreed to pay the sum of $200,000.

10. The parties asked me to make the orders set out in the consent judgment/order. The effect of those orders is that the defendant will make the interim payment, which will be paid into Court and then paid out pursuant to s 77(4) of the CPA. I am informed by Ms Brookes that a summons has been filed in the Equity Division of this Court seeking to have Australian Executor Trustees (“AET”) appointed, and that there will be a further application made to have monies paid out of the Court to AET. I do not need to decide that issue at this stage.

11. The orders sought are to the effect that the defendant pay the interim payment and the interim payment is approved under s 76 of the CPA.

12. An application such as this involves a consideration of both ss 82 and 76 of the CPA. As set out in s 82, in any proceedings for the recovery of damages, the Court may order a defendant to make one or more payments to the plaintiff as part of the damages sought to be recovered in the proceedings. The Court may make such an order at any stage of the proceedings. However, as set out in s 82(3), the Court may not make such an order unless either: (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.

13. At this stage, the defendant has not admitted liability and the plaintiffs have not obtained judgment. As I am precluded from making an order for an interim payment unless either ss 82(3)(a), (b) or (c) of the CPA are satisfied, the only basis upon which I could make an order is if I am satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.

14. In this regard, the first plaintiff relies on an expert report dated 5 September 2022, which has been obtained from Dr Warwick Butt. It is not necessary that I recite all of the contents of Dr Butt’s report. Suffice to say that I understand Dr Butt to be a specialist in paediatrics. He has extensive experience, including as a Professor at the Department of Critical Care at the University of Melbourne, in addition to holding a number of other positions. In Dr Butt’s opinion, there were multiple instances of error and delay in the initial care provided to the first plaintiff. He says that ultimately the correct diagnosis was reached and a plan was established. Surgery was delayed and a fellow was appointed to perform the procedures.

15. However, Dr Butt says that the major inexcusable failure was the placement of a chest drain into the left lower lobe of the lung. This complication was not recognised and two manipulations occurred which extended and magnified the lung injury and caused substantial bleeding. This rapidly led to a combination of hypoxia and hypotension, culminating in a cardiac arrest.

16. Dr Butt concludes that an experienced surgeon performing the procedure would have either avoided the placement of the drain in the lung or identified it and not performed the two manipulations which led to further injury, bleeding and cardiac arrest and the long-term neurological problems for the first plaintiff.

17. At this stage of the proceedings, there is no other evidence available as to the first plaintiff’s prospects of success and as I said, the defendant does not at this time wish to make any submission contrary to Dr Butt’s opinion.

18. In the circumstances, I am satisfied that, if the proceedings went to trial, the first plaintiff would obtain judgment for substantial damages against the defendant.

19. Of course, in circumstances in which the first plaintiff originally presented to the hospital with symptoms of fever but was otherwise suffering from no disablement and is now left with permanent spastic quadriplegia and a hypoxic brain injury, the damages that the first plaintiff will recover will be very substantial.

20. I am also required to consider s 76 of the CPA, because these proceedings are being pursued by the first plaintiff who is under a legal incapacity. I must be satisfied that any order I make for an interim payment is for the benefit of the first plaintiff. As is well known, the Court’s role in considering either settlements or interim payments to be made on behalf of a person under a legal incapacity is essentially protective. I must be satisfied that the payment would be for the benefit of the first plaintiff. The reason for that is obvious, in the sense that I would not approve even an interim payment to be made for the benefit of the family as a whole unless I am satisfied that the payment is really for the benefit of the first plaintiff.

21. It is apparent that the first plaintiff’s family are living in difficult and cramped quarters, which do not provide proper space for the adequate and proper treatment of the first plaintiff. He needs extensive, if not full-time, care. To say the least, it would be extremely difficult for the care that he requires to be provided in the sort of accommodation where he is residing. Further, the family does not have access to a vehicle which is suitable to transport the first plaintiff to and from hospital, or wherever he might need to go for care. The family’s situation is extremely difficult. The first plaintiff’s father, being the third plaintiff, has ceased work due to his ongoing care requirements and commitments. In addition, because of the risk of the other children coming home with a virus and infecting the first plaintiff, they have been taken out of school.

22. It is only necessary to say that, for all the reasons I have set out above, I am satisfied that the interim payment is for the benefit of the first plaintiff. It will allow for a better standard of care, some better accommodation, and proper transportation of the first plaintiff at this most difficult stage.

23. In the circumstances, I am satisfied that the interim payment should be made, and I make the orders set out in the consent judgment/order, being orders 1, 2, 3, 4, 5 and 6. I note paragraphs 1 and 2 as set out in the orders provided to me and signed by the parties, and I will sign the consent orders.

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Decision last updated: 28 August 2023