Thinking | 5 September 2017

Mother awarded damages for nervous shock from Bankstown Hospital tragedy

Background

Ms Sorbello gave birth at the Bankstown Hospital to a son, Joseph, in 2008. Joseph suffered severe injury as the result of oxygen deprivation during his birth and as a result, he is profoundly disabled, has a significantly shortened life expectancy and requires lifetime care.

Proceedings were brought in negligence on behalf of Joseph against the South Western Sydney Local Health Network, which settled on confidential terms.

Ms Sorbello then claimed damages in the Supreme Court of New South Wales for personal injury, in the nature of mental harm (nervous shock) suffered by her as a result of the negligence of the Hospital. The primary judge found that Ms Sorbello suffered from a debilitating psychiatric condition that rendered her fit only to work part-time, and even though she has some capacity for work, her prospects of exploiting that capacity were “essentially non-existent”.

The hospital admitted liability and damages were awarded to Ms Sorbello under various heads including non-economic loss, past economic loss, and future economic loss, in the sum of $1,278,459.

On appeal

The hospital appealed the decision at first instance on two main bases.

Firstly, the hospital challenged the primary judge’s acceptance of the expert opinion evidence of the doctors retained by the Ms Sorbello over the doctor retained by the hospital, as to causation of the respondent’s condition. On appeal, the court held that the hospital did not provide sufficient reasons to prefer it’s expert, and the primary judge was exercising her judicial function of assessing evidence which includes assessing the demeanour of expert witnesses. The hospital’s expert opinion was largely based upon the resilience shown by Ms Sorbello in overcoming other life “stressors” such as her marriage breakdown, and was not supported with sufficient evidence. The court held that “none of those stressors remotely approached the level or the permanence of stress imposed upon her by Joseph’s birth and disabilities”, and found that there was no error in preferring the other experts’ evidence.

Secondly, the hospital asserted that the primary judge was in error in assessing Ms Sorbello’s residual earning capacity, by casting an onus on the hospital to prove that Ms Sorbello was capable of working and the types of work available to her. The Court of Appeal affirmed that once a loss of earning capacity has been established by a plaintiff, the onus of demonstrating a failure to exploit any residual earning capacity lies on the defendant: Mead v Kearney [2012] NSWCA 215 [16]:

“…Once this onus is satisfied, it is not necessary for the plaintiff also to satisfy the court of the extent of the loss, in the sense of proving what employment the plaintiff is not incapacitated from performing; a defendant who contends that the plaintiff has a residual capacity has at least an evidentiary onus of adducing evidence of what the plaintiff is capable of performing and what jobs are open to a person with such a residual capacity”

Therefore, the primary judge was not in error.

The hospital also argued that the primary judge should have taken the approach in Malec v J C Hutton Pty Ltd [1990] HCA 20, which involves considering the chance that the injury to the plaintiff could have eventuated despite the defendant’s negligence. On appeal, the court dismissed this ground on the basis that it was not part of the hospital’s case at first instance or on appeal that there was a chance that Ms Sorbello would have suffered psychiatric injury despite the hospital’s negligence, and therefore the Malec principles were not appropriate. Further, the Court of Appeal noted that the possibility of another cause affecting Ms Sorbello’s earning capacity was, in any event, accounted for in the allowance made for vicissitudes.

The hospital also claimed that damages should be reduced, due to the settlement reached on behalf of Joseph. This was also dismissed by the court, stating that the mere fact that an award of damages in favour of her son was made was insufficient to warrant any reduction in the award to be made to Ms Sorbello.

Judgment

The appeal was dismissed with the hospital to pay Ms Sorbello’s costs.

Contact

Oliver Jankowsky

Partner & Head of International Practice

Ed Paton

Partner & Head of SE Asia Practice

Eugene Chen

Partner & Head of China Practice

Melanie Smith

Director - Business Development, Marketing and Communications

Natalie Bannister

Partner & Commercial National Practice Leader

Rhett Slocombe

Partner & Insurance National Practice Leader

Kristopher Kunasingam

Special Counsel & Head of Migration

Katie McKenzie

DIRECTOR - PEOPLE & CULTURE

James Bull

Special Counsel and Head of Frank

Melanie James

People & Culture Manager

Peter Campbell

Director - Client Solutions

Jacqui Barrett

Partner & Head of US Practice

Paul O’Donnell

Consultant & Head of Energy

Christopher Brown

Partner & Head of UK Practice

Melinda Woledge

Marketing & Communications Manager

Jasmine Koh

Senior Associate and Head of Frank

Alison Choy Flannigan

Partner & Leader, Health & Community

Anthony Hallal

Lawyer – Employment and Human Rights

Billie Kerkez

Manager – Smarter Recovery Solutions

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