Tripovich v South Eastern Sydney Local Health District

[2019] NSWSC 1793

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Tripovich v South Eastern Sydney Local Health District [2019] NSWSC 1793

Hearing dates:

11 December 2019

Date of orders:

11 December 2019

Decision date:

11 December 2019

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

1. Pursuant to section 82 of the Civil Procedure Act 2005 (NSW) the defendant, makes an interim payment to the plaintiff of $75,000.

 

2. Pursuant to section 82 of the Civil Procedure Act 2005 (NSW), the interim payment is agreed.

 

3. The interim payment of $75,000 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 s 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 plaintiff.

 

5. The 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:

 

(a) The interim payment is made with no admission by the defendant as to whether the 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.

 

(b) The Court is satisfied that if the proceedings went to trail the plaintiff would obtain judgment for substantial damages from the defendant in an amount in excess of the interim payment.

 7. The proceedings are listed for directions before the Registrar for ongoing case management on Friday, 7 August 2020 at 9:00am.

Catchwords:

CIVIL PROCEDURE – medical negligence proceedings – application for interim payment – application supported by medical evidence – application granted

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 77, 82

Category:

Procedural and other rulings

Parties:

Alexis Lily Tripovich by her tutor Gabriela Hristova Tripovich (Plaintiff)
South Eastern Sydney Local Health District (Defendant)

Representation:

Solicitors:
Amond Legal (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2017/217232

Publication restriction:

Nil

EX TEMPORE Judgment

1. By notice of motion filed in Court on 11 December 2019, the plaintiff (“Alexis”) seeks an order pursuant to s 82 of the Civil Procedure Act 2005 (NSW) for an interim payment to be made to her in the sum of $75,000, being part of the damages sought to be recovered by her in the substantive proceedings.

2. The proceedings concern a medical negligence claim brought on behalf of Alexis, who is, I am informed, aged seven. Her mother is her tutor.

3. It is alleged in the statement of claim filed on 17 July 2017 that the defendant's hospital and its staff failed to exercise an appropriate level of care and skill in managing the delivery of Alexis, and should have performed earlier intervention for her safe delivery. As a result of this failure, she suffered hypoxic brain damage and has multiple disabilities.

4. The cause of action has clearly been well supported by a selection of medical reports addressing liability issues. These are listed in the affidavit of John Gerard Amond sworn 4 December 2019 and comprise midwifery, obstetric and neo-natal opinion.

5. There has also been service of expert reports from a paediatric neurologist and paediatric neuropsychologist which evidence the basis of the ongoing needs, particularly at this developmental age, for comprehensive speech pathology, occupational therapy, assistance with adaptive living skills as well as educational support and monitoring. There is also evidence that assistance with psychological difficulties at this stage would be appropriate, and probably necessary, given the recent developments with difficulty fitting in at school as deposed to by Alexis' mother in paragraph 12 of her affidavit.

6. This difficulty has led to the removal of Alexis from school and a period home schooling being approved by the Department of Education.

7. Importantly, the defendant has filed an Amended Defence on 29 October 2019 which admits liability and causation.

8. In all the circumstances, and on my brief but sufficient assessment of the issues and the expert material appended to Mr Amond's affidavit, and referencing the issues set out in the affidavit of the tutor, I am content that it is entirely appropriate that an interim payment has been made, and I have no hesitation in approving the sum that is to be advanced.

9. In reaching that conclusion I specifically note that I am satisfied that if the proceedings went to trial, the plaintiff would obtain judgment for a substantial sum of damages, most definitely in an amount clearly in excess of the amount of the interim payment. I also note that there has been no admission made by the defendant as to entitlement to the particular items proposed to be the manner in which the interim payment will be disbursed, and that the defendant reserves all its rights in that regard.

10. I have made orders in accordance with the consent orders which are placed on the file to reflect my decision.

Orders

1. Pursuant to section 82 of the Civil Procedure Act 2005 (NSW) the defendant, makes an interim payment to the plaintiff of $75,000.

2. Pursuant to section 82 of the Civil Procedure Act 2005 (NSW), the interim payment is agreed.

3. The interim payment of $75,000 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 s 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 plaintiff.

5. The 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 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 trail the plaintiff would obtain judgment for substantial damages from the defendant in an amount in excess of the interim payment.

7. The proceedings are listed for directions before the Registrar for ongoing case management on Friday, 7 August 2020 at 9:00am.

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Amendments

16 December 2019 - Correction of date.

Decision last updated: 16 December 2019