Awards of general damages for psychiatric injury remain a concern for defendants as exemplified by a recent decision of the New South Wales Supreme Court. 1 The case concerned an assessment of damages for nervous shock arising from the death of the plaintiff’s newborn son. The defendant health service had admitted liability and so the Court was only required to determine the amount of damages to be awarded.
The plaintiff gave birth to a baby boy in hospital in August 2007. There were complications with the birth which resulted in the baby acquiring brain damage. Four days later, the plaintiff and her husband decided to stop the baby’s ventilation, thereby allowing him to die. It was accepted that the baby’s brain injuries were a result of the negligence of those associated with the hospital for which the defendant health service was liable. The defendant admitted liability and accepted expert evidence that the plaintiff had suffered an anxiety disorder and a pathological grief reaction which constituted a “recognised psychiatric illness” within the meaning of section 31 of the Civil Liability Act 2002 (NSW). The plaintiff claimed damages for non-economic loss, past and future economic loss, domestic care and assistance, and treatment expenses.
Assessment of damages
Justice Adamson awarded the plaintiff a total of $366,903.60 in damages, which included $214,000 for non-economic loss, being 40% of the most extreme case figure of $535,000. This represented a ‘splitting of the difference’ between the 45% advocated by the plaintiff and 35% by the defendant.
In assessing non-economic loss, the judge relied heavily on the change in the plaintiff’s personality following her son’s death, noting that she had transformed from an optimistic and ambitious person to someone who largely avoided random social activities. The baby’s death had also made two further pregnancies particularly anxious experiences.
It is notable that the judge took into account a number of factors which demonstrated the plaintiff’s capacity to function and which augured well for her future. These included her ability to have two further children, to leave them in the care of others, to undertake further study and to work in a relatively demanding job in a bank. Despite these factors, the judge believed that the plaintiff remained vulnerable to stressors, particularly those associated with childbirth and children and noted that the plaintiff’s grief was lifelong.
The assessment of non-economic loss is always fact specific but individual cases can be a guide for similar cases. Quality of life is more highly valued by our society than it once was and courts seem more receptive to this outlook, granting commensurately high awards for general damages.