Interim judgment approved for disabled New South Wales child

Date: Jan 18, 2020

On 11 December 2019, the New South Wales mother and tutor of a 7-year-old child came to the Court seeking an interim payment to be made to her in the sum of $75,000, (this would be a part of the damages sought to be recovered by her in the substantive proceedings.) The child had suffered damage due to medical negligence during delivery.

The facts of the case

The proceedings on 11 December concerned an existing medical negligence claim brought on behalf of the 7-year-old, filed on 17 July 2017. It was alleged that the defendant’s hospital and its staff failed to exercise an appropriate level of care and skill in managing her delivery. The Duty of Care was failed when because they did not perform earlier intervention for her safe delivery, and the claim is that the child’s hypoxic brain damage and subsequent multiple disabilities were a direct result of the failure to do so.

Prior affidavits, reports and testimony

The preceding claim and cause of action was found by the court to be well supported by a selection of medical reports addressing liability issues, including midwifery, obstetric and neo-natal opinion. To these were added expert reports from a paediatric neurologist and paediatric neuropsychologist.

The child’s ongoing care needs

The need for ongoing specilised care at the child’s developmental age included comprehensive speech pathology, occupational therapy, assistance with adaptive living skills and educational support and monitoring. The child had been removed from school due to psychological difficulties and a period of homeschooling was approved by the Department of Education, indicating a need for psychological assistance as well.

The defendant’s admission

The defendant filed an Amended Defence on 29 October 2019 which admitted liability and causation. The Court took this into account and determined that the main case, if taken to trial, would almost certainly result in a judgment in favor of the plaintiff, and thus found it proper to approve an interim payment

The judgment

Since the Court was satisfied that if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages from the defendant in an amount over the interim payment, the defendant was ordered to make an interim payment to the plaintiff of $75,000, payable to the court within 28 days for further disbursement to the defendant. The defendant would have credit for the interim payment on any final settlement or verdict in favour of the plaintiff, and interest on damages would be reduced accordingly to reflect the payment in case of the same.

For more information on medical negligence cases, contact Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.

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