Payment of treatment expenses, or even repayments, in this environment are a rare exception to the rule.
Due to the Uniform Civil Procedure Rules rule 31.36 requirement of an expert’s report outlining why there has been a breach of duty of care insurers are hesitant to make any offers of settlement before proceedings are commenced with the Court.
Although is not all doom and gloom for Plaintiffs as section 82 of the Civil Procedures Act allows the Court to order one, or more interim payments during proceedings. The order can be made against the Defendant upon application of the Plaintiff.
An order can be made in circumstances where the Defendant has admitted lability for the injuries, or a judgment has been entered and the Plaintiff is awaiting assessment of the damages.
Exceptions to the rule include uninsured Defendants who are also not “public authorities”.
When making the order the Court must take into consideration the likely quantum of damages, and the payments cannot exceed a reasonable proportion of that amount. The Court must also take into consideration any contributory negligence, and cross-claims.
Section 82 also allows the Court to order payments in situations where a Plaintiff can satisfy the Court that if the matter went to trial an award of substantial damages would be made against the Defendant.
The matter of Stewart v Chee [2018] NSWSC 262 is a recent Supreme Court of NSW judgment in which a Plaintiff had a win against a medical negligence insurer.
The insurer had admitted to a number of breaches of duty of care particularised by the Plaintiff. Between them the parties had agreed to a payment of $100,000 for the Plaintiff’s dialysis treatment. Davies J commended the insurer for the speed at which the agreement was reached once they were notified the payment for treatment expenses had been requested.
The issue before the Court was not the application of section 82, both parties agreed that the payment should be made, but rather the form that the Court order for the interim payment should take.
The Defendant wanted the words “for the purpose of dialysis care and treatment” added to the end of the order to limit the way in which the Plaintiff could spend the money.
In making his finding Davies J noted:-
“the authorities on the point are tolerably clear that conditions such as the Defendant sought are not to be imposed”
As a result, Davies J awarded the Plaintiff the costs for the application in addition to the payment of $100,000, in effect punishing the Defendant for its behaviour.
The current situation remains that interim payments can be used for the advancement of the Plaintiff’s life generally, and not necessarily specifically as payment for treatment costs.
In our experience it is rare that an insurer will admit to allegations of negligence contained within the pleadings, but it is important to know that in the right circumstances an interim payment for treatment expenses or other essential needs can be obtained for you.
If you or someone you know has been involved in a case of medical negligence you may be entitled to compensation. For more information and to arrange a free consultation please contact Stacks Goudkamp on (02) 4058 2715 or alternatively make an online enquiry.
