Stewart v Chee - [2018] NSWSC 263

Supreme Court

New South Wales

Medium Neutral Citation: Stewart v Chee [2018] NSWSC 263
Hearing dates: 6 March 2018
Date of orders: 06 March 2018
Decision date: 06 March 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
1. That pursuant to section 82 of the Civil Procedure Act 2005 (NSW), within 28 days of the date of this order, the Defendant to pay to the Plaintiff the sum of $100,000 as an interim payment of the damages sought to be recovered in the proceedings.

2. That this interim payment is to be deducted from the amount of damages assessed by the Court on final judgment or else credited against any prior settlement of the proceedings.
3. Defendant to pay the Plaintiff’s costs of today.
Catchwords: PROCEDURE – personal injury proceedings – application for interim payment – plaintiff’s need for dialysis as a result of negligence of defendant – cost of treatment - whether condition should be attached to the payment that money to be used for dialysis
Legislation Cited: Civil Procedure Act 2005 (NSW) s 82
Cases Cited: Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106
Munsie v Munsie [2012] NSWSC 479
Sargent v South Western Area Health Service [2010] NSWSC 1506
Category: Procedural and other rulings
Parties: Jannette Stewart (Plaintiff)
Christopher Chee (Defendant)
Representation:
Counsel:
J Sandford (Plaintiff)
M Windsor SC (Defendant)
Solicitors:
Shana Radnan & Co Solicitors (Plaintiff)
Meridian Lawyers Ltd (Defendant)

File Number(s): 2016/337927
Publication restriction: Nil

Judgment

The plaintiff underwent an operation to deal with a foreign mass which had been found on her left kidney. The operation took place at Port Macquarie Private Hospital on 19 November 2013.
During the course of the operation, ligaclips were applied to the right renal artery, it is alleged, and when the operation was concluded those ligaclips were not removed until found at a later time. As a result, the plaintiff has no effective kidney function and must now, it appears, rely on dialysis for the rest of her life. The plaintiff has brought proceedings against the renal surgeon.
Four particulars of negligence are identified in paragraph 13 of the Statement of Claim as follows:

(a)   Failure to identify the right renal artery as supplying blood flow to the Plaintiff’s healthy right kidney.
(b)   Applying ligaclips to the right renal artery by mistake.
(c)   Failing to remove the ligaclips from the right renal artery before closing the surgical wound.
(d)   Failing to conduct a proper and thorough inspection of the surgical area before closing the surgical wound.

The defence admits negligence in respect of particulars (c) and (d) in these terms:

In relation to paragraph 13 of the Statement of Claim, the defendant:
(a) admits that he was negligent as particularised in sub-paragraphs (c) and (d);
(b) does not admit the balance of the paragraph.

There are issues identified about the obtaining of dialysis for the plaintiff and whether it is necessary for that dialysis to be on a home-care basis…

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 Stewart v Chee

Details

AGLC: Stewart v Chee [2018] NSWSC 263
Case: [2018] NSWSC 263
Decision Date: 06 March 2018

CaseChat Overview and Summary

The plaintiff, Stewart, sought an interim payment from the defendant, Chee, in the context of personal injury proceedings. The plaintiff had suffered a condition requiring dialysis due to the defendant's negligence. The crux of the matter was the determination of whether the plaintiff should receive an interim payment for the cost of treatment and, if so, whether any conditions should be imposed on the use of those funds. The case was heard in the Supreme Court of Queensland. The legal issues revolved around the appropriateness of granting an interim payment to cover the plaintiff's ongoing treatment costs, particularly the expenses related to dialysis, and whether any specific conditions should be attached to ensure the funds were used solely for the intended medical purpose.

The court considered the plaintiff's demonstrated need for ongoing treatment and the significant costs associated with it. It was noted that the plaintiff's condition was directly attributable to the defendant's negligence, justifying an interim payment. However, the court also examined whether attaching a condition that the funds be used exclusively for dialysis would be appropriate. The court concluded that while the plaintiff's need for such funds was apparent, imposing a strict condition on their use might not be necessary, given the clear purpose of the payment. The court decided that an interim payment should be granted but did not see the need to impose a specific condition regarding the use of the funds.

The court ordered that an interim payment be made to the plaintiff to cover the costs of treatment, including the expenses for dialysis. The decision did not include any conditions restricting the use of the payment to dialysis specifically, acknowledging the plaintiff's need for the funds without imposing additional restrictions. The court's ruling ensured that the plaintiff could continue to receive necessary treatment while the case proceeded, without undue financial burden, while also maintaining a balance in the allocation of resources.

Orders