Impact of NDIS on interim payment application

Key Points
  • In establishing an entitlement to an interim payment order under section 82 of the Civil Procedure Act 2005 (NSW), the party seeking the order must prove that it is more probable than not that they would recover substantial damages at trial.
  • Roll out of the full NDIS scheme in New South Wales will start progressively from July 2016. Until then it remains unclear the full extent to the benefits that will be available to participants.


Eastbury v Genea Limited (formerly known as Sydney IVF Limited) [2015] NSWSC 1834


Background

Leighee Eastbury knew she should undergo genetic screening before starting a family because her uncle has an inherited intellectual disability called Fragile X syndrome. Aware she could be a “carrier” of the gene mutation and pass it onto her children or grandchildren, she asked her GP to organise chromosomal testing. She was told the result of the testing was negative. Believing she was not a carrier, Mrs Eastbury had a son, Hayden, in 2008. A second son, Jacob, was born in 2011. Both children have the full Fragile X gene mutation.

The couple are suing fertility specialists Genea, formerly known as Sydney IVF, in the NSW Supreme Court.

The court heard that in September 1999 Mrs Eastbury’s GP wrote a referral to Macquarie Pathology requesting “genetic testing for carrier status of X-factor”. The referral noted her “uncle has mental retardation.”

A blood sample was taken and referred on to Genea, then known as Sydney Genetics. However, at that time, Genea did not perform testing to establish the carrier status of Fragile X. The only testing it performed was chromosomal analysis to determine whether a person was currently affected by Fragile X.

Mr and Mrs Eastbury’s expert evidence supported the notion that Genea should have carried out molecular testing to diagnose Fragile X and not the cytogenetic method. If Genea was unable to do the molecular test, they should have referred Mrs Eastbury to another laboratory. Genea did not adduce any expert evidence to the contrary, however, it argued that it performed the test it was asked to perform accurately. The reason for Genea’s misunderstanding of the purpose of the test was due to the typed Pathology Referral stating “uncle has x-factor Mental Retardation” which omitted the GP’s handwritten note “genetic testing for carrier status of X-factor”. The court found that the former sentence should nevertheless have alerted Genea to the purpose of the test, that is, to determine whether Mrs Eastbury was a carrier. By this reasoning, the court further found that Mr and Mrs Eastbury would probably succeed at trial in recovering substantial damages against Genea.

Interim payment application

The plaintiffs sought an interim payment under section 82 of the Civil Procedure Act (NSW). This was opposed by the defendant (Genea) on the basis that it had denied liability for the claim. The defendant said there was insufficient evidence of need for an interim payment given the possibility that many of the services claimed will be covered by the National Disability Insurance Scheme (NDIS). The plaintiffs’ affidavit evidence was that their sons would be transitioned to a new program under the NDIS ‘in the near future’. After considering the expenses likely to be incurred by the plaintiffs, the Court commented that ‘while… [the] NDIS will offer some benefits, it is not known at this stage what they will be’The Supreme Court found it likely that the plaintiffs would succeed at trial in obtaining judgment for substantial damages against the defendant. Genea was thus ordered to make an interim payment of $100,000.

Post by Claudine Wastson-Kyme

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