Appeal from an award of damages arising from psychiatric injury

The Respondent gave birth to her son Joseph at the Bankstown Hospital in 2008. Joseph was born with profound disabilities such that his life expectancy was significantly shortened and he would require lifetime care. 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. The South Western Sydney Local Health District admitted liability and damages were awarded to the Respondent under various heads of damage. 

The Appellant appealed the award of damages on two primary bases. Firstly, that the primary judge should not have accepted psychiatric evidence from the Respondent's experts over that of the Appellant's psychiatric evidence. Secondly, 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.

On behalf of the Appellant, Dr Lisa Brown, Psychiatrist, contended that the Respondent had developed a mild adjustment disorder in response to Joseph being diagnosed with Cerebral Palsy. Dr Brown opined that the Respondent's symptoms were not severe enough to preclude her returning to work and that because of the Respondent's resilient nature, her adjustment disorder would likely resolve once Joseph started attending school and the burden placed upon the Respondent was reduced.

Dr Allnut, Psychiatrist and Ms Luca, Psychologist, briefed on behalf of the Respondent contended that although not precluded from returning to work altogether, the Respondent would only be able to return to work on a part-time basis.

The primary judge noted in her judgment that there was no doubt that but for her injuries the Respondent would have returned to work following her planned 12 months of maternity leave. Further, the primary judge noted that in order for the Respondent to return to work she would require a sympathetic employer who would allow her to work part-time and tend to Joseph's complicated health situation where necessary. In calculating future economic loss, the primary judge calculated this on the basis of the Respondent's working capacity and also her realistic prospects of exploiting that capacity. It was determined that although the Respondent had residual earning capacity it was unlikely that she would be able to exploit this capacity before retirement age because of the demands placed on her time by Joseph. Accordingly, the primary judge decided that although the Respondent had possible working capacity, she had no realistic earning capacity as she would not be given the opportunity to exploit her ability to work.

Findings

The Court held that the primary judged had not made an error in preferring the evidence of Dr Allnut and Ms Luca over that of Dr Brown. The Court noted that it is the function of a trial judge to assess evidence, including that of experts, using whatever information is available in the circumstances. The Appellant had not led any evidence as to how the primary judge had erred in preferring the opinion of Dr Allnut and Ms Luca over that of Dr Brown. Accordingly, the primary judge was obliged to exercise her judicial function and entitled to accept the opinions of Dr Allnut and Ms Luca over that of Dr Brown.

The Court held that the Appellant's contention that the primary judge erred in requiring the Appellant to lead evidence of possible employment for the Respondent was incorrect. The question to be considered was whether the Respondent had earning capacity, which is a term referring to the realities of the employment market. Although she had working capacity this would not transfer to earning capacity unless the alternative to take on employment was open to her.

The Court noted that the Appellant had led a poorly articulated line of argument that the primary judge had failed to take into consideration the significant award of damages to Joseph and his ability to employ the Respondent, utilising those damages, for the care she provides to him. The Appellant failed to lead evidence as to the amount or breakdown of Joseph's award of damages which would have supported the contention that an allowance was made for the employment of the Respondent in its calculation. In the absence of such evidence, the court held it would be erroneous to take into account, by way of a reduction in the Respondent's damages, a postulated fact that Joseph had been placed in a position to provide employment to the Respondent.
The appeal was dismissed and the Appellant was ordered to pay the Respondent's costs.

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