On 19 November 2013, Janette Stewart underwent surgery at Port Macquarie Private Hospital to remove a mass found on her left kidney. During the course of the operation, ligaclips were applied to the right renal artery. Ms Stewart alleged that the renal surgeon failed to remove the ligaclips after surgery. As a result, Ms Stewart has no effective kidney function and relies on dialysis for the rest of her life.
Ms Stewart commenced proceedings against the renal surgeon, in negligence and claimed damages. She made an interlocutory application pursuant to s 82 of the Civil Procedure Act 2005 (NSW), that the renal surgeon pay the sum of $100,000 as an interim payment of the damages sought, to cover the cost of dialysis.
The renal surgeon contested the application and argued that Ms Stewart did not clearly indicate that the interim payment will in fact be used for the purposes of dialysis care and treatment, as opposed to funding litigation costs.
His Honour Davies J found that it is not a requirement of s 82 that any condition should be imposed and that based on the authorities, it would not be appropriate to impose any such condition in the circumstances.
Accordingly, Davies J upheld Ms Stewart’s application and ordered the renal surgeon to pay $100,000 to Ms Stewart as an interim payment of the damages sought.
For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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