HUNTER AREA HEALTH SERVICE v MARCHLEWSKI & ANOR [2000] NSWCA 294

HUNTER AREA HEALTH SERVICE v MARCHLEWSKI & ANOR [2000] NSWCA 294

Aggravated damages are not available in claims for negligently inflicted pure psychiatric injury (nervous shock); damages for psychiatric injury fully compensate for hurt, humiliation or indignation so long as they are directly caused by the tort, thus the additional aggravated damages awarded by the trial judge were impermissible and must be set aside. Economic loss for Roman was assessed overly optimistically; a more appropriate lump sum (cushion) was substituted. Powell’s award for her daughter’s therapy was not supported by findings or evidence and was also set aside. Awards for general damages and therapy/pharmaceutical costs were otherwise within discretionary limits and not...

Jurisdiction
Australia
Judgment Date
26 October 2000
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court, Concerning Quantum of Damages
Outcome
Appeal upheld in part; awards for aggravated damages and daughter's therapy set aside; recalculation of damages and adjustments to be made; costs ordered against respondents.
Legal Topics
['negligence' 'nervous Shock' 'aggravated Damages' 'general Damages' 'economic Loss' 'damages Assessment' 'withdrawal of Life Support']
['tort Law' 'medical Negligence'] ['negligence' 'nervous Shock' 'aggravated Damages' 'general Damages' 'economic Loss' 'damages Assessment' 'withdrawal of Life Support']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Supreme Court, Concerning Quantum of Damages

Legal Issues

  1. 1 ['Were the awards for general and aggravated damages in claims for psychiatric injury following medical negligence excessive or duplicative?' "Is aggravated damages available for negligence resulting in pure psychiatric injury ('nervous shock')?" 'Was the assessment of economic loss, therapy, pharmaceutical, and associated costs appropriate?' 'Should an award for counselling for the respondents’ daughter have been made?']

Ratio Decidendi

Aggravated damages are not available in claims for negligently inflicted pure psychiatric injury (nervous shock); damages for psychiatric injury fully compensate for hurt, humiliation or indignation so long as they are directly caused by the tort, thus the additional aggravated damages awarded by the trial judge were impermissible and must be set aside. Economic loss for Roman was assessed overly optimistically; a more appropriate lump sum (cushion) was substituted. Powell’s award for her daughter’s therapy was not supported by findings or evidence and was also set aside. Awards for general damages and therapy/pharmaceutical costs were otherwise within discretionary limits and not...

Court Disposition

Appeal upheld in part; awards for aggravated damages and daughter's therapy set aside; recalculation of damages and adjustments to be made; costs ordered against respondents.

Orders

  • ['Awards of aggravated damages to Lamphud and Roman set aside.' "Award of $5000 to Roman for Delores's therapy and counselling set aside." 'Past and future economic loss award for Roman reduced to $100,000 (from $306,079).' 'Other damages (general damages, therapy/pharmaceutical/travel costs for Roman) not...