Savic v State of NSW

[2006] NSWSC 209

CITATION:	Savic v State of NSW [2006] NSWSC 209
HEARING DATE(S):	27 March 2006
JUDGMENT DATE :	30 March 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Harrison
EX TEMPORE JUDGMENT DATE:	03/28/2006
DECISION:	(1) I make an order that purusant to s 82 of the Civil Procedure Act 2005 the defendant is to pay to the Registrar of the Supreme Court, as part of the plaintiff's damages, the sum of $1,325,000; (2) I make an order that expedition be granted; (3) A status conference is to be allocated in November 2006. The Court is to notify the parties of the date; (4) By consent order 3(iv)(a) of the order dated 3 June 2004 is deleted; (5) The defendant is to pay the plaintiff's costs of this application.
CATCHWORDS:	Further interim payment - s 82 CPA
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) - s 82
CASES CITED:	Frellsen v Crossword Pty Ltd (1992) 15 MVR 343 Schott Kem Limited v Bentley & Ors [1991] 1 QB 61
PARTIES:	Dejan Savic bhnf Ljiljana Savis (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	SC 20356/2003
COUNSEL:	Mr D T Kennedy SC with Ms L Csillag (Plaintiff) Mr A C Bridge SC (Defendant)
SOLICITORS:	Keddies Litigation Lawyers (Plaintiff) Hicksons (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 30 MARCH 2006

20356/2003 - DEJAN SAVIC by his next friend
LJILJANA SAVIC v STATE OF NEW SOUTH WALES
JUDGMENT (Further interim payment – s 82 CPA)

1 HER HONOUR: This is a tragic case. By amended notice of motion filed 23 August 2005 the plaintiff seeks an interim payment pursuant to s 82 of the Civil Procedure Act 2005 (NSW) (CPA) in the sum of $1,500,000 to be paid to the Public Trustee to the account of Dejan Savic (123873-1).

2 On 3 June 2004 by consent, an order was made for the defendant to pay into court for payment out to the Public Trustee, as part of the plaintiff’s damages, the sum of $375,000. On 22 December 2005 Simpson J made a further order that the defendant pay to the Registrar of the Supreme Court for payment out to the Public Trustees, as part of the plaintiff’s damages, the sum of $175,000. So far the Public Trustee has received advances totalling $550,000. These amounts have now been exhausted. Those advances were used for the medical and rehabilitation treatment of the plaintiff. The plaintiff now seeks a further sum of $1,325,000 (not $1,500,000) by way of interim payment.

3 The plaintiff Dejan Savic was born on 20 February 1988. On 7 April 1988, the plaintiff together with his parents and younger brother migrated from Yugoslavia to Australia.

4 On 21 May 2001 the plaintiff was attending James Busby High School as a year 8 student. He and a number of other students were participating in soccer coaching. A teacher was marking the lines on the soccer field. It is alleged that the teacher had drilled a hole in the bottom of a tin of paint thinner allowing the liquid to be poured onto the playing field. The plaintiff along with the other boys were involved by the teacher in this activity and they were also involved in stamping out the flames on the lines that had been lit by the teacher. The tin of paint thinner had been left close to the burning portion of the grass and the plaintiff thought there maybe some danger. The plaintiff went towards it with the view to removing it away from the flames. The tin exploded causing the plaintiff to suffer very severe burns to 75 percent of his body. As a consequence of the burns, the plaintiff has required very extensive treatment and has undergone at least 15 surgical procedures. The injuries suffered by the plaintiff will be permanent and long term. The defendant is the State of New South Wales and has admitted breach of duty of care. Contributory negligence is in issue.

5 On 21 May 2002 plaintiff was admitted to Liverpool Hospital Burns Unit and discharged seven months later on 25 December 2002 but was readmitted on 27 December 20002. On 5 March 2003 and between 29 April 2003 and 13 May 2003 he was again hospitalised. The only area of the plaintiff’s body that was not directly burnt as a result of the explosion was the area from his nipples up however 20% of that area has had to be used for skin grafting procedures. He has undergone 15 surgical procedures involving debridements and skin grafts during the course of his admissions to the Liverpool Hospital.

6 The plaintiff has experienced numerous infections including staph oreos and has developed osteomyelitis of his sacrum, which continues to be a source of skin breakdown. While in hospital the plaintiff was diagnosed with anaemia and required multiple blood transfusions. He had constant low blood pressure, impaired renal function and respiratory distress. He developed a deep vein thrombosis and was treated with Heparin. In September 2002 an MRI scan indicated that there has been changes within the brain. The plaintiff has lost 96% of his normal vision in both eyes, which is permanent. During the time that he was in hospital and since his discharge members of his family, more particularly his mother, have been involved in providing full time care for him including attending the hospital for extensive periods of time. This care has continued since his discharge and will be required in the future. The burns to the plaintiff’s arms and hands have resulted in severe disability in the use of his hands. He has disabilities in his hips, knees and ankles and has a right foot drop. He has also developed spasticity in his gait.

7 The plaintiff has required and will continue to require, for some time into the future, a case manager. The plaintiff’s parents are not fluent in English. It is necessary for translation and interpreting services to be provided to allow the family to assist in the plaintiff’s medical treatment. The plaintiff has been left with hearing loss in the left ear, problems with his olfactory system and he is hyposensitive to certain smells and to dust. He is also hyposensitive to heat and to sun. During the warmer months the plaintiff requires showering on many occasions during the course of the day.

8 The plaintiff has severe permanent disfigurement to most portions of his body (see photographs Ex A). He experiences pain and contractions. This affects his mobility and capacity to use the different limbs of his body. He experiences stiffness in his body particularly if there has been no physiotherapy.

9 Dr Peter Maitz, the medical director of the burns unit at Concorde Repatriation General Hospital, has been treating the plaintiff since October 2003. He indicates that the area in the plaintiff’s sacrum is unstable and keeps breaking down posing an infection risk. Dr Maitz anticipates that in order to endeavour to improve the scarring and breakdown the plaintiff will require a considerable number of operative procedures. Dr Maitz is of the view that the plaintiff’s living circumstances will need to be substantially improved before any additional surgery could be undertaken.

10 Dr Maitz reported (20/10/2004):

“I believe a formal home assessment needs to be done and his living circumstances will need to be substantially improved before any additional surgery is undertaken!”

11 The plaintiff’s living accommodation consists of a two storey Housing Commission unit at Green Valley. The plaintiff’s bedroom is on the top floor and there is a narrow steep stairway to the ground floor. As the upstairs bathroom is too small for the plaintiff to use it has become necessary for him to shower on a commode in the laundry over the laundry drain.

12 The plaintiff’s mother, in her affidavit sworn 22 January 2004, at [28] – [29] and [40], describes it this way:

“In order to get up to his bedroom Dejan needs to negotiate 15 very steep stairs of a very narrow stairway. It is of a curved nature. There is no support or aid on the stairway but just bare walls. Dejan cannot ascend or descend the stairs on his own and must have the help of both my husband and I. It is extremely difficult for both of us to help carry Dejan who weighs about 70 kgs in weight. It is additionally difficult for my husband given that he has lost his leg.
I am very concerned for Dejan’s safety. If Dejan fell I am very concerned that he may re-injure himself.
…
“Our two storey unit is impracticable to care for Dejan. It is difficult for both my husband and I to assist Dejan to get him to his upstairs bedroom. It is also difficulty [sic] for Dejan to bathe and shower. Dejan takes his showers in the laundry by the use of a chair. During showering I become wet and the laundry takes a considerable time to dry. Showering Dejan is quite lengthy. I need to carefully and gently dry him, apply cream and dressings. Sometimes this can take up to 2-3 hours.”

13 Not surprisingly the plaintiff’s mother feels despair and anguish over Dejan’s condition.

14 It is common ground that the plaintiff should be provided with more suitable living arrangements. Occupational therapists and case managers Lesley Radbron and Kareena Henry in their joint report (12/09/2004) indicated that the plaintiff’s present housing is unsuitable for the his needs. Dr Hampshire, psychiatrist (report 16/12/2003), diagnosed the plaintiff with chronic severe post traumatic stress disorder, depression, panic attacks and chronic organic brain syndrome. He is in agreement with the advice that the plaintiff’s living arrangements are unacceptable. Dr Hampshire is of the view that the plaintiff should be provided with an air conditioned home on a single level with a swimming pool, as this would alleviate the painful navigation of stairs and the fear of infection from public swimming places.

15 Dr Flood plastic surgeon, reported (19/3/2004), that the plaintiff will require between 10 and 15 further operative procedures. In addition to the operative procedure extensive ongoing medical treatment will also be required. It appears that the plaintiff’s case will not be ready for hearing for at least two years.

16 Dr Maitz (19/8/2005) reported:

“He will still need several surgical procedures which have been explained in my last letter and I wish to emphasise that the recovery time frames are accurate … [t]he time necessary between each operation would be in the vicinity of 2 to 3 month [sic].”

17 This is the “Catch 22” situation. In order to carry out these surgical procedures, the plaintiff needs improved living quarters so as to minimise the risk of infection. Without a monetary advance, he cannot improve his living conditions and therefore cannot undergo the operations.

18 Hedley, Carr, Allen & Watts, architects (report 4/4/2005), states that the costs of a home to satisfy the plaintiff’s requirements, which included demolition costs, swimming pool provision and a fourth bedroom, would be $595,040, plus ongoing running costs of $187 per week totalling $191,805.90. The defendant submitted that the plaintiff is only entitled to the costs of the alterations, which is in the vicinity of less than $100,000.

19 The plaintiff has required and will continue to require ongoing care. The primary carer until the early part of this year was the plaintiff’s mother. She suffers from a severe and chronic post traumatic stress disorder, depression and with a development of phobia. It has got to the point where she cannot continue in such a demanding role. Paid assistance needs to be provided.

20 In March 2004 Dr Arthur Shores carried out a neuropsychological assessment. That assessment resulted in Dr Shores expressing the view that the plaintiff has suffered, amongst other complications, some degree of brain injury. Further that the plaintiff appears to have significant cogitative impairment, despite showing evidence of full effort during assessment. In addition, Thomas O’Neill, clinical psychologist reported (3/5/2005) that he carried out a number of tests to assess the plaintiff’s abilities in terms of his school activities. The plaintiff scored the equivalent age of 7 years and 4 months in respect of a reading test. Reading accuracy was at the equivalent of a pupil of 7 years and 6 months. In spelling the plaintiff was at the equivalent age of a pupil of 8 years and 4 months. In numerical and mathematical reasoning he scored the equivalent of an 8 year and 8 months. This was considered lower than functional numeracy. On the good side, the plaintiff has returned to school on a full time basis from 9.00am to 3.00am with the full time assistance of a teacher’s aid.

21 This application becomes necessary because there are ongoing expenses, which will need to be met in the future. These include medical and other expenses, operation expenses (at $108,000), the necessity for paid care, the necessity for ongoing case management, translation and interpreting services and the urgent necessity for the plaintiff to get into proper accommodation before the operative procedures should be undertaken.

22 Section 82 of the CPA (which is in effect identical to its predecessor s 76E of the Supreme Court Act 1970) provides:

“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.”

23 In Frellsen v Crossword Pty Ltd (1992) 15 MVR 343 Sully J at 346 identified three issues that should be considered when making an order for interim payments. They are:

“(3.4.1) What is meant by the requirement contained in the equivalent of S76E(3)(c) that the court must be “satisfied” of the matters there enumerated?
(3.4.2) To what extent must a claimant for an interim payment order demonstrate actual need as a precondition of the exercise in his favour of the discretionary power to make such an order?
(3.4.3) What is the consequence, so far as concerns the court’s being “satisfied”, of the claimant/plaintiff’s having brought his principal action against more than one defendant?”

24 Sully J analysed the apparent conflicts which arise on the fact of various English authorities before (at 347) ultimately adopting the approach in Schott Kem Limited v Bentley & Ors [1991] 1 QB 61 where Neill LJ stated (at 73F to 74B):

“…it is customary in personal injury actions for interim payments to be limited to sums for which the plaintiff can show a need. This is a sensible course because large interim payments in such cases may lead to difficulties if an order for repayment is subsequently made under Ord 29, r 17.

I am not satisfied, however, that there is any restriction implicit in the rules which prevents an interim payment order being made in the absence of evidence of need or prejudice. By the use of the words 'if it thinks fit', both rr 11 and 12 confer a discretion on the court whether to order an interim payment at all. Moreover the amount of the payment is expressed to be 'of such amount as [the court] thinks just', with the additional limitation in the case of damages that the amount is not to exceed 'a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff' after taking into account the matters specified. For my part I can see no basis for any further limitation on the jurisdiction of the court to order interim payments than those set out in Ord 29 itself.”

25 From the history I have recounted earlier in this judgment, there is no doubt that the plaintiff and his family are suffering undue hardship.

26 The plaintiff’s solicitor’s (Aff 23/8/2005) referred to what was not included in the initial interim advances. These items are past general damages ($400,000); past out of pocket expenses ($212,955.19); accommodation ($506,650); past Griffith v Kerkmeyer ($123,824); special equipment, namely a total care bed by Mediscus ($140,000); and additional out of pocket expenses ($25,000). As at 22 August 2005 there were anticipatory expenses for the period 1 September 2005 to 1 December 2005 in accordance with Rehabilitation Plan No 6 ($116,607.70). These items total the sum of $1,525,102.39. The defendant submitted that there is significant debate about the nature and extent of care, the cost of housing, occupational therapy and case management (to which I earlier referred).

27 Whether an order should be made for a further interim payment is discretionary. The plaintiff’s mother and father have exhausted their savings. They are living on Centrelink payments and borrowings from family members. The plaintiff’s mother has paid for bandages, clothing and the like which has resulted in the sum of $212,955.19 being incurred. The plaintiff’s Counsel provided a detailed schedule of damages, which totals just over $11,000,000. While the amount allowed for future care will be hotly contested at trial and there will be debate over house costing, it is my view that if and when these proceedings go to trial, the plaintiff will obtain judgment for substantial damages. I do not think that it is necessary for the court, hearing this application, to quantify the amount that the plaintiff is likely to receive at trial under each head of damage. It would be in the defendant’s commercial interests to have the plaintiff undergo these operations as soon as possible, with the risk of infection being minimised, as this ultimately will result in a lesser verdict being obtained against it.

28 The defendant will not suffer undue hardship if the order is made. The sum of $1,325,000 (which means that there will have been advances of $1,875,000 made so far) is far less than the amount of damages the plaintiff will recover. It is my view that this sum represents less than 25% of the damages that the plaintiff is likely to recover and can be considered a reasonable proportion of damages at this stage. This advance will allow the plaintiff to make changes to his accommodation and undergo the further operations he needs.

29 I make an order that pursuant to s 82 of the CPA the defendant is to pay to the Registrar of the Supreme Court, as part of the plaintiff’s damages, the sum of $1,325,000. I make an order that expedition be granted. A status conference is to be allocated in November 2006. The Court is to notify the parties of the date. By consent order 3(iv)(a) of the order dated 3 June 2004 is deleted.

30 Costs are discretionary. The defendant is to pay the plaintiff’s costs of this application.

The court orders:

(1) I make an order that pursuant to s 82 of the Civil Procedure Act 2005 the defendant is to pay to the Registrar of the Supreme Court, as part of the plaintiff’s damages, the sum of $1,325,000.

(2) I make an order that expedition be granted.

(3) A status conference is be allocated in November 2006. The Court is to notify the parties of the date.

(4) By consent order 3(iv)(a) of the order dated 3 June 2004 is deleted.

(5) The defendant is to pay the plaintiff’s costs of this application.

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