ASSESSMENT OF DAMAGES IN NERVOUS SHOCK CLAIMS

BPC have successfully acted for many plaintiffs in respect of nervous shock claims pursuant to the provisions of the Civil Liability Act 2002.

Nervous shock claims can be brought by a person suffering pure psychiatric injury following circumstances that the defendant ought to have foreseen to be capable of causing a person of normal fortitude to suffer a recognisable psychiatric illness if reasonable care were not taken.

In order to succeed in a nervous shock claim, it is necessary to obtain medical evidence diagnosing a recognisable psychiatric condition which must be more than a normal grief reaction.

Section 30 of the Civil Liability Act 2002 limits the recovery for pure mental harm arising from shock as follows:-

Section 30(2)

The plaintiff is not entitled to recover damage for pure mental harm unless:

  • the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or 
  • the plaintiff is a close member of the family of the victim.”

A reference to a “close member of the family” is limited to a parent of the victim, the spouse or partner of the victim, a child or step child of the victim, or a brother, sister, half-brother or half-sister, or step brother or step sister of the victim.

Strict time limits apply to claims for personal injury including nervous shock claims. A 3 year limitation period is imposed in relation to commencement of legal proceedings which runs from the date of the relevant event.

It is often difficult to assess the amount of damages in nervous shock claims. BPC successfully acted on behalf of a mother who suffered nervous shock as a result of the traumatic events surrounding the birth of her child. As a result of medical negligence, the plaintiff’s son is profoundly disabled. BPC also acted on behalf of the child in separate proceedings successfully achieving a substantial confidential settlement to cover his extensive lifetime care, medical treatment and therapy needs and other associated losses.

The decisions of the Supreme Court of New South Wales and the New South Wales Court of Appeal in relation to the mother’s claim are summarised below to provide some guidance in relation to the assessment of damages in nervous shock claims and personal injury claims for reduced earning capacity.

Sorbello v South Western Sydney Local Health Network [2016] NSWSC 863

This case concerned the psychological impact of the defendant’s negligence during the birth of the plaintiff’s son who was profoundly disabled and requires lifetime care and support due to his birth related injuries. The plaintiff pursued damages for nervous shock including economic loss as she had been unable to return to employment following the birth of her significantly disabled son.

At a very late stage of the proceedings, the defendant finally admitted breach of duty of care. It was left for the Court to consider the extent of damage suffered by the plaintiff and the quantum of damages arising from the negligence.

Both parties tendered medical evidence and the psychiatric and psychological experts participated in a joint conclave and produced a joint report prior to the trial. These experts also gave evidence concurrently during the trial. The plaintiff relied on expert evidence from Dr Stephen Allnutt, psychiatrist and Ms Rafaela Luca, psychologist. The defendant relied on evidence of Dr Lisa Brown, psychiatrist. Ultimately, the trial judge preferred the opinions of Dr Allnutt and Ms Luca and rejected the expert opinion of Dr Brown whom the trial judge found under appreciated the magnitude of the plaintiff’s injuries.

The plaintiff claimed damages for economic loss arising from her psychiatric injuries. The defendant submitted that the plaintiff had made a choice not to return to work so that she could care for her disabled son and that it was open to her to employ carers and return to some form of employment. This issue was addressed by lay evidence and the medical experts. Dr Allnutt and Ms Luca gave evidence in respect of the plaintiff’s preoccupation with her disabled son, difficulty concentrating on other tasks and her related anxiety and inability to trust others to care for him. The plaintiff lacked trust in the medical profession and felt strongly that she had to be available to her child when required. There was a constant risk that her son’s condition would deteriorate at short notice including vulnerability to seizures and hospital admissions requiring a high level of vigilance and constant concern and attention. This heightened, ongoing stress was not conducive to recovery and any work environment would require flexible work practices and a supportive employer.

The trial judge found that there was no issue that the plaintiff would have returned to her pre-injury full time employment at the expiration of her 12 months maternity leave but for her psychiatric condition. The trial judge found that with appropriate treatment and support, the plaintiff could probably work part time but practical issues limited her return to work. The trial judge considered that the plaintiff would require at least 18 months of treatment and then she assessed the plaintiff’s working capacity to be no more than 50%. The trial judge then considered the realistic prospects of the plaintiff exploiting her theoretical earning capacity and concluded that those prospects were effectively non-existent. Accordingly, the trial judge determined that damages for future economic loss should be assessed on the basis that the plaintiff would not be able to exploit any residual earning capacity before retirement age. Significantly, despite the fact that the Court found that the plaintiff had a theoretical earning capacity, no evidence was led by the defendant of the availability of work which would meet her capacity. Accordingly, the plaintiff received a full award for future economic loss and loss of superannuation calculated on the basis that she had no ability to exercise any residual earning capacity for the remainder of her working life.

South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 per Simpson JA with Macfarlan and Meagher JJA agreeing

The defendant appealed the above decision of the Supreme Court of New South Wales. The New South Wales Court of Appeal has provided a helpfully detailed headnote, summarising the appeal as follows:-

“The respondent gave birth at the Bankstown Hospital to a son, Joseph, in 2008. Joseph was born with profound disabilities, such that his life expectancy is significantly shortened, and he will require lifetime care. While a claim on behalf of Joseph was settled on confidential terms, the respondent claimed damages in the Supreme Court for personal injury, in the nature of mental harm, suffered by her as a result of the negligence of the appellant. Liability was admitted by the South Western Sydney Local Health District and damages were awarded to the respondent under various heads, including non-economic loss, past economic loss, and future economic loss.

The appellant appealed the award of damages on two primary bases. First, the appellant challenged the primary judge’s acceptance of the expert opinion evidence of Dr Allnutt and Ms Luca (a psychiatrist and a psychologist retained on behalf of the respondent) over that of Dr Brown (a psychiatrist retained on behalf of the appellant) as to the causation of the respondent’s condition. The second basis asserted that the primary judge was in error in assessing the respondent’s residual earning capacity by casting an onus on the appellant to establish what employment remained open to the respondent. Further, it was contended by the appellant, that the primary judge ought to have taken the approach outlined in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 which concerns the assessment of the chance that circumstances other than the defendant’s negligence would, in any event, have brought about the injury of which the plaintiff complains.

In relation to the first basis, the Court was satisfied that the primary judge was not in error in accepting the opinions of Dr Allnutt and Ms Luca over that of Dr Brown. The Court considered that the appellant had not advanced sufficient reasons to prefer the opinion of Dr Brown, particularly given that the weight of the remainder of the evidence did not support that opinion.

In addressing the second basis, the Court affirmed the approach taken by the primary judge in assessing future economic loss. In particular, the Court 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, taking into account all of the circumstances that apply to the plaintiff. No error was demonstrated by the appellant in this regard.

The Court held that assessment on Malec principles was not appropriate, there being no issue that the appellant’s negligence was the cause of the respondent’s condition, and it was not part of the appellant’s case that there was a chance that the respondent would, without the appellant’s negligence, have suffered disabling psychiatric injury.”

In light of the above, the appeal was dismissed on the following basis:-

  1. The primary judge was not in error in preferring the evidence of Dr Allnut and Ms Luca over that of Dr Brown.
  2. The primary judge was not in error in not applying the approach discussed in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. The chance that the respondent would have developed the injury was accounted for in the conventional allowance made for “vicissitudes”.
  3. The primary judge was not in error in casting an onus on the defendant to prove that the plaintiff could exploit any residual working capacity.
  4. There is not a sufficient basis to conclude that the award of damages to the respondent should be reduced due to any settlement reached on behalf of her son.

BPC successfully acted on behalf of the plaintiff in relation to the above trial in the Supreme Court of New South Wales at first instance and was successful in the New South Wales Court of Appeal in having the appellant’s appeal dismissed.

BPC has also successfully acted for many plaintiffs suffering nervous shock and psychiatric injuries as a result of negligence. If you believe you have a claim for nervous shock, we can offer a complimentary consultation to discuss your options and to provide legal advice in relation to your prospects of success in pursuing a claim. We confidently back ourselves to represent you with a “no win, no fee” guarantee.

Please do not hesitate to contact our offices in order to discuss a potential claim. 

Kate Henderson

28 August 2017