Hunter Area Health Service v Marchlewski

[2000] NSWCA 294

CITATION:	HUNTER AREA HEALTH SERVICE v MARCHLEWSKI & ANOR [2000] NSWCA 294
FILE NUMBER(S):	CA 41067/98
HEARING DATE(S):	1 June 2000
JUDGMENT DATE:	26 October 2000
PARTIES :	HUNTER AREA HEALTH SERVICE v Lamphud MARCHLEWSKI & ANOR
JUDGMENT OF:	Mason P at 1; Stein JA at 131; Heydon JA at 132

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	CD 20937/95
LOWER COURT JUDICIAL OFFICER :	Dowd J

COUNSEL:	Appellant: D L Davies SC/S Woods Respondents: P Menzies QC/ D Hirsch (Sol)
SOLICITORS:	Appellant: Lynn Boyd Respondents: Cashman & Partners
CATCHWORDS:	Negligence - nervous shock - child born clinically dead and is resuscitated and placed on ventilator life support system - after removal from system child continues breathing - without consultation with parents hospital decides child should not be resuscitated when heart fails - hospital later admits its original breach caused brain damage leading in turn to death - hospital admits breach of duty of care leading to parents’ nervous shock - economic loss past and future - awardee already suffering severe depression anxiety - lump sum "cushion" award substituted - therapy and pharmaceutical costs - relevance of safety net under pharmaceutical benefits scheme pursuant to National Health Act 1953 (Cth) - awards of general damages not appealably high - norms or standards of general damages in particular fields under Planet Fisheries - aggravated damages - discussion of whether aggravated damages are capable of being awarded for negligence - doubtful whether need to engraft award of aggravated damages upon negligence claim - aggravated damages not awarded in claim for pure nervous shock - awards for aggravated damages set aside - circumstances in which proper care of profoundly injured person may entail termination of artificial life-support systems - part of nervous shock award on account of future counselling and medication needed for awardee’s daughter - part of award set aside in absence of findings to base award.
DECISION:	See paras 129 and 130.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41067/98
CD 20937/95



MASON P
STEIN JA
HEYDON JA

Thursday 26 October 2000



HUNTER AREA HEALTH SERVICE v
Lamphud MARCHLEWSKI & Anor

JUDGMENT

1    MASON P: The respondents are the parents of a baby (Maria) who was born on 29 September 1992 and who died on 29 October 1992. The appellant is the statutory authority responsible for the John Hunter Hospital (the Hospital) at Newcastle where Maria spent all of her short life. 2    Maria's mother, the first respondent (Lamphud) went into labour and was admitted to the Hospital late on 29 September. The birth was full term and the baby appeared large for what was believed to be a 38 week pregnancy. Two nurses were in attendance and they were joined by a resident medical officer at around 2330 hrs. Maria's head delivered spontaneously with the umbilical cord called wrapped around her neck, loosely. The cord was unable to be lifted over Maria's head. In the circumstances, the decision was made to cut and clamp the cord to prevent tightening or entanglement during the imminent delivery. The cord was cut by the doctor. During the next contraction, Maria's shoulders did not deliver, indicating an obstetric emergency known as shoulder dystocia. Various procedures were adopted, unsuccessfully. Nine minutes after the shoulder dystocia occurred, the senior midwife and the senior obstetrics registrar were summoned. The registrar performed a procedure called the McRoberts manoeuvre and Maria was delivered at around 2350 hrs. 3    Maria was born clinically dead suffering brain damage caused by cerebral hypoxia which was caused by asphyxia (lack of oxygen) during the delivery. She was resuscitated and placed on a ventilator life support system. 4    What occurred thereafter was the subject of some dispute between the parties. Nevertheless, the learned trial judge (Dowd J) made primary findings which are no longer challenged. Most of those findings are based upon the Hospital's medical records. 5    Based upon the history of asphyxia, a grossly abnormal EEG, epileptic seizures and other evidence of severe damage to Maria's brain, kidney and lungs, the neonatal specialists formed a firm opinion that her prognosis was extremely poor. For example, Dr Wilkinson, a consultant paediatric neurologist who examined Maria on 1 October 1992, concluded that:

... the prognosis was terrible for this child in terms of neurological outcome.... The child was being ventilated. My feeling was if the child suffered a cardiac arrest it was not in the child's best interests to try and resuscitate the child. I thought the prognosis for this child was so bad. I thought the likelihood of a normal or near normal outcome was zero. As a child advocate I thought it was not in the child's best interest to survive.

6    The respondents no longer challenge the accuracy of such a prognosis. 7    Between 1 and 6 October 1992 Dr Wilkinson and Dr Wake (a neonatologist) reaffirmed their assessment, including their opinion that continued extraordinary means of life support were inappropriate for Maria. Dr Wake confirmed this assessment in a discussion with Professor Henderson Smart. The doctors at the hospital were of the view that withdrawal of life support would more probably than not lead to Maria's death as nature took its course. 8    Senior hospital staff endeavoured to explain their diagnosis and prognosis to Maria's parents, the respondents. The task was unusually difficult for a number of reasons: each parent had a limited understanding of English because it was not the first language of Lamphud (Thai) or Roman (Polish); there were cultural and religious differences that needed to be accommodated, not only as between the hospital staff and the parents but also as between the parents themselves; and throughout this period the staff at the hospital were at pains to keep to themselves whatever understanding they then had of what was to be admitted much later as negligence on the part of the hospital. Most significantly, there were the difficulties stemming from the fact that the parents were understandably distraught and angry about the unexpected outcome of a perfectly normal pregnancy and their perception that the medical people had been at fault. 9    There were several formal and informal meetings between the parents and senior medical officers. At a case conference on 1 October 1992 the parents voiced concerns about the standard of medical treatment received. In particular, Lamphud expressed concern that a doctor was not present initially at the time of the birth and concern about the time taken for a senior registrar to arrive. At all other meetings during this period when such matters were raised, the senior officers from the Hospital asserted that everything had been done properly. 10    At the meeting of 1 October the doctors commenced to explain to the parents the diagnosis and gloomy prognosis that they had formed. They were obviously preparing the parents to accept the reality (as the doctors saw it) of Maria's hopeless position and the desirability (in Maria's interests, as perceived by the doctors) of not persisting with extraordinary means of life support. Nevertheless, the hospital record for this meeting indicates “Roman requests that supportive measures be continued”. Similar instructions are recorded later in the hospital records, along with instructions as to details of medical treatment. There are several notes recording angry exchanges between Roman and hospital staff. 11    A clear indication of the apparent stalemate is shown in Dr Wake's note of 3 October 1992:

I believe this child has suffered brain death secondary to a severe asphyxial insult caused by the shoulder dystocia . The changing signs are consistent with the progression seen in such an injury.
I think the appropriate management has been done and that there is no doubt that the prognosis is hopeless.
I think it would be appropriate to stop life support but at the time it is not the father's wishes and all normal treatment continues at this time. I have no plan to change this before 05/10/92 when I will discuss this further with Dr Buckner .
(See also Dr Wake's notes of 4 October 1992 and 7 October 1992.)

12    On 6 October 1992 Maria was gradually weaned from ventilator life support, with a “CPAP tube” being substituted. She appeared to handle the adjustment. The parents were obviously aware of this change. By 15 October Maria was breathing room air normally. 13    None of this altered the completely gloomy prognosis of the medical experts.
14    There was an angry meeting between the respondents and Dr Buckner on 13 October 1992, as recorded in the hospital notes. Roman complained about the current treatment of Maria as well as the neglect that he believed had occurred at the baby’s delivery. According to Dr Buckner’s note:

I tried again to get Mr M to focus on Maria’s current plight. I stated that Maria suffered severe brain damage from which she will not recover. She may or may not be able to breath without ventilator support, either way she will have severe handicap. Mr M simply repeated several times ‘don’t take out the tube, don’t change anything’. Roman reported on this occasion that Lamphud had an appointment to see a psychiatrist.

15    A further meeting involving Dr Wake, Dr Buckner and the parents took place on 14 October. The parents were told that the neurological outlook remained unchanged. Roman told them that he did not accept their opinion and that he believed that Australian doctors were incompetent and incapable of being trusted. 16    A critical event occurred on 16 October 1992. The following unchallenged finding was made by the learned trial judge:

On 16 October 1992 Drs Wake, Buckner and Gill decided that Maria should not be re-ventilated in the event of deterioration in her condition. This decision was made without consultation with, or the consent of, Lamphud and Roman and was against their stated wishes.

17    The decision of the doctors was recorded in the hospital records at the time. 18    Maria’s condition remained relatively stable over the ensuing days. She was visited regularly by her parents. To the trained observer her condition was deteriorating slowly. However, the parents remained in a state of shock and denial. Dr Gill recorded on 22 October 1992 that the parents were “still not really accepting the plight of Maria’s current status”. 19    On 27 October 1992 Maria had a respiratory arrest and she did not respond to any resuscitation. She was not fully re-ventilated and she died, notwithstanding CPAP ventilation. Consistent with the decision previously taken by the doctors, the neonatologist who was urgently summoned recorded in the medical notes:

I decided that in view of the severe brain damage it was inappropriate to continue resuscitative efforts. The baby died at 1530 hours.

20    The respondents came to the hospital. Roman was very angry. He claimed that the nurse had given the baby something and said that he wanted a full enquiry. When asked if he wanted an autopsy he said that he did want a full examination of the baby to see why she died. 21    There was subsequently an autopsy and a coronial inquest.

Judgment of Dowd J

22    Dowd J noted the hospital’s formal admission of breach (which had been made by its insurer’s solicitor on 23 December 1997 and was in terms confined to breach at the time of delivery). It was also common ground at the trial that the hospital’s breach had caused Maria’s brain damage which in turn had led to her death. The hospital also admitted breach of duty of care towards the respondents and that such breach had caused “nervous shock” sounding in damages. 23    In his final judgment given on 17 December 1998 his Honour awarded Lamphud a verdict of $346,400 and Roman a verdict of $691,023. An independent claim for damages for psychiatric injury by Maria’s sister, Delores, resulted in a verdict for the defendant.

Matters challenged on appeal

24    The appeal is limited to damages and confines itself to the following components of the verdicts:

1. Aggravated damages ($40,000 for Lamphud and $36,000 for Roman).
2. General damages ($200,000 for Lamphud and $180,000 for Roman).
3. Roman - economic loss.
4. Roman - therapy, pharmaceutical and associated costs.
5 Roman - therapy costs for daughter Delores.

25    It is convenient to address items 3 and 4 first.

Roman’s economic loss

26    The judgment in Roman’s favour included components for past economic loss ($89,300), interest on past economic loss ($28,708) and future economic loss ($188,071). The total is $306,079. Most of the past loss and all of the future loss were calculated on the basis of an earning capacity at the time of Maria’s death of $350 net per week. This was roughly the equivalent of $425 gross per week. Senior counsel for the respondents suggested that the judge treated Roman as having about half normal capacity of a person working in his old job at BHP at the time of Maria’s death. I am content to proceed on that basis, which was not disputed. 27    This valuation of the pre-tort earning capacity is the core finding attacked in this part of the appeal. The appellant contends that, independently of the effects of Maria’s death, Roman was not fit for remunerative employment. 28    Roman was born in Poland in 1948 and he was approximately 50 years old at date of judgment. In Poland he had been engaged in a variety of skilled trades. He left Poland in 1980 as a political refugee and came to Australia with his then wife and their daughter. He was employed by BHP as a labourer in 1982 but was retrenched later that year. He separated from his first wife and suffered emotionally as a result. He threatened to hang himself in 1983 and in March of that year was admitted to hospital with self-inflicted stab wounds to the abdomen. In May 1983 there was a further admission to hospital with a self-inflicted wound to the arm. 29    Dr Osman Ali diagnosed a reactive depression with endogenous features including terminal insomnia, loss of weight, drop of social functioning and some persecutory beliefs towards neighbours, work colleagues and the community at large. He observed a very anxious man with some dysphoria and tearfulness and a high risk of self-mutilation. 30    Roman was discharged from hospital in June 1983. He was re-engaged by BHP as a labourer. 31    He was again hospitalised after he was attacked in May 1985. There was a work accident in August 1987. His right knee was injured and this required an operation before he was able to return to work on selected duties in August 1988. 32    In 1987 Roman met Lamphud, who had come to Australia for a holiday. They married in October of that year. Their first daughter, Delores was born in July 1989. 33    By January 1989 Roman had become depressed about his situation and very angry towards Australia. He attended a clinic for depression. He had come to the firm belief that he was being discriminated against racially and was being treated as a fifth class citizen. He had several returns to work, with periods off work. By May 1990 he was diagnosed as being very depressed about his situation because of worries about his financial position that resulted in him having difficulty sleeping. He had become bitter as a result of his experiences in Australia with a history of problems with work colleagues. 34    By June 1990 he had aggravated depression and anxiety as a result of his injuries. He was not fit to return to pre-accident work but had a limited capacity to carry out light duties. In July 1990 he ceased work at BHP and continued on workers’ compensation. 35    By August 1991 Roman was diagnosed as suffering a severe depression anxiety. It was found that he was medically unfit for his pre-injury occupation and that his symptoms of anxiety and depression would severely hamper his capacity to carry out light duties. His physical injuries added to his severe depressive anxiety in determining his capacity to work. Dowd J held that part of his physical incapacity was exaggerated, but he accepted the medical opinion that Roman’s capacity to carry out heavy duties was severely impaired. 36    In January 1992 Roman was further diagnosed as suffering from anxiety and depression. In May 1992 he was found by a medical panel as having a 20% loss of use of his right leg and he required a lumbo-sacral corset. He continued to have problems with his painful knee. In May 1993 it was determined that he had a 30% diminution in his right leg and a 10% back injury. A medical panel determined in February 1994 that he had a 5% injury to his back. 37    The workers’ compensation proceedings were settled in June 1994. Roman was paid a lump sum. 38    Dowd J found that Roman had a limited earning capacity at the time of the injury which is the subject of these proceedings. He concluded:

There was a severe impairment on Roman’s capacity to earn income. His work history shows that if he did work it would only be for limited periods and despite attempts to work and an attempt to run his own business, his business management skills are extremely limited and he has difficulty with English. It was likely that a large part of his life would be spent on unemployment relief. The anxiety and depression conditions which he suffered because of the difficulties of his feelings of rejection by the Australian community and the unfairness of his Polish skills not being recognised in Australia and his confinement to what would be little more than, or only, labouring jobs on light duties makes a man of his age very difficult to employ.

39    All of the primary facts I have recounted were as found by the learned trial judge. They are not in dispute, but the conclusions drawn from them were. 40    In his Part 33 Statement, Roman put his claim for economic loss in the following terms:

Mr Marchlewski has not worked regularly since 1987 when he was injured whilst working for BHP. He was considered physically fit for light duties but, after some attempts by BHP at finding a position for him, he was let go. He became resentful and depressed about his financial predicament and the way his workers’ compensation claim was progressing. He was hoping that with the security from a workers’ compensation settlement, he would be able to work again, perhaps running his own business.
The workers’ compensation claim was not settled until 1994. Maria died in 1992. Mr Marchlewski’s psychiatric problems since then have prevented him from seeking employment and he has been on a pension since April 1992.
The expert evidence will be to the effect that Mr Marchlewski would probably have been able to return to some kind of work, either at a sedentary position somewhere, or at his own business, after the workers’ compensation settlement. His general practitioner, Dr Ingram (who had treated him for nearly ten years before Maria died and was involved in the workers’ compensation claim) will attest to this.
Mr Marchlewski’s economic loss claim is based on:
(a) A cushion to represent loss of earning capacity for two years between October 1992 (when Maria died) and June 1994 (when the workers’ compensation claim settled); and
(b) Average weekly earnings from June 1994 up to the date of trial; and
(c) Average weekly earnings from the date of trial to
(i) the date when the Court determines that it is likely that he will be able to return to work and earn at least an average weekly wage; or
(ii) to the age of 65 (a further 24 years).

41    Dowd J awarded $20,000 for the period until settlement of Roman’s claim against BHP on 30 June 1994. The balance of past economic loss and the whole of future economic loss were calculated on the basis of a loss of net earning capacity of $350 per week. Future loss of earnings were calculated at a similar rate on the basis of 15 years of working life (from age 50 to age 65) subject to the conventional discount of 15 percent for normal vicissitudes. 42    In a statutory declaration sworn in May 1994 in support of an application to commute workers compensation, Roman said that after his employment was terminated at BHP he tried to find light work elsewhere. He did not believe that his English skills were good enough for clerical work. Due to his injuries he did not believe that he could return to labouring work. 43    In that 1994 statutory declaration he expressed the belief that the only way in which he might be able to survive was by operating his own Amway business. However, in the trial of the present action no evidence was led as to any steps taken by Roman to pursue the business plans he had expressed in his 1994 statutory declaration. 44    The appellant submits that on the balance of probabilities Roman was unlikely to be fit for remunerative employment independently of the impact of Maria's death. Alternatively, it was said to be unlikely that he would have been able to obtain and hold a job or to conduct a business by reason of factors for which the appellant was not responsible. It is submitted that no case has been made for past economic loss and, at best, a small sum (cushion) could be allowed for future economic loss. 45    Roman placed significant weight on a medical report of Dr Ingram, an experienced general practitioner who spoke Polish and who had treated him from before Maria's birth and during the course of his workers’ compensation claim. Dr Ingram attributed Roman’s depressive anxiety to a considerable degree to constant worry over his financial future. He considered the depressive anxiety would have been reversible prior to Maria's birth. Dr Ingram continued:

A favourable settlement of his compensation, a suitable job or eventually an invalid pension with all its benefits could contribute greatly to restore his emotional balance and ability to start afresh….
Unfortunately, the tragic loss of his baby has radically changed his emotional picture, and worsened the emotional problems he was having. He was deeply hurt and shocked. He started to show signs of agitation and paranoia, that he had not shown before….
Mr Marchlewski now has suffered an almost complete loss of confidence in authorities with whom he has had dealings in relation to the death of his daughter. This has manifested in Mr Marchlewski’s irrational and erratic behaviour. Fear and suspicion now dominate his state of mind….
In my opinion it was likely that Mr Marchlewski would have been able to get on with his life after the Workers Compensation has been resolved. However, the impact of the trauma of the death of his child, has in my opinion resulted in irreversible psychological disability from which I do not believe he will recover.

46    The trial judge effectively accepted Dr Ingram's evidence on this point because he held that the depression would probably have resolved were it not for the tort. 47    Roman also points to oral evidence of Dr Ingram to the effect that he was suitable for light duties from a sitting position (Bk 71). The doctor did give evidence to this effect (see also Bk 85), although he severely qualified it, saying:

...maybe he would be able to perform some light duties but he would still be affected by recurrently seeking medical help, physiotherapy, et cetera.
The passage from the judgment set out at par 38 above effectively accepts that Roman was fit for light duties without express advertence at that stage to the likelihood of continuing interruptions and difficulties.

48    A report was provided by Dr Ingram in support of Roman’s workers compensation claim. It is dated 26 August 1991, just over a year before Maria’s birth. Dr Ingram concluded that Roman was:

…unfit for his pre-injury occupation and his capacity to carry out light duties would also be severely hampered by his symptoms. In practical terms he would be at a considerable disadvantage in the present, highly competitive labour environment. His condition will also affect considerably his personal and social life.

49    Valuation of the claim for economic loss followed in the conventional approach, including the conventional 15% discount for future contingencies. Leaving aside the $20,000 lump sum for pre June 1994, the impact of Roman’s existing physical and mental problems was allowed for by discounting by about 50% the wages of a “comparable” BHP employee albeit that Roman had ceased to work there in July 1990. 50    The task upon which Dowd J was engaged was a difficult and impressionistic one. He had to determine Roman’s willingness and capacity to work based upon a projection as to the likelihood that Roman would put behind him a lengthy period of unsatisfactory work relations as well as overcoming the continuing effects of his depression, his personality and language difficulties and his physical injuries stemming from his BHP employment. 51    Roman bore the evidentiary and persuasive burden. Nevertheless, the inquiry was “an imprecise and indeterminate one to be carried out within very broad parameters” (State of New South Wales v Moss [2000] NSWCA 133 at [71] per Heydon JA whose judgment contains a comprehensive review of the relevant principles). 52 I have concluded that the trial judge’s conclusions drawn from the primary facts were not justified. Roman had not worked since 1990. He had not pursued his dream of an Amway business, in all probability because his recurring depression and his limited experience and language skills raised too many barriers to success. His physical injuries rendered him capable at best for light duties outside the scope of his existing work experience. Even accepting the probability that his psychological situation would have improved had it not been for Maria’s death, this would have taken time and was not likely to be without relapses. I see nothing in the judgment below that is inconsistent with the view of Dr Ingram in his August 1991 report, which I would accept, where he said that Roman was:

…unfit for his pre-injury occupation and his capacity to carry out light duties would also be severely hampered by his symptoms. In practical terms he would be at a considerable disadvantage in the present, highly competitive labour environment. His condition will also affect considerably his personal and social life.

53    In this situation I cannot see the justification for assuming an unbroken capacity to earn $350 per week over the entire period from June 1994 to the date when Roman turns 65, subject to the conventional discount for vicissitudes. I have particular difficulty with the conclusion that Roman was likely to have found remunerative employment during the period covered by the awards for past economic loss which carried interest. 54    The parties were agreed that this Court should reassess if it set aside any portion of the damages awarded by the trial judge. To me there are so many imponderables that awarding a lump sum “cushion” is an approach which, if anything, errs on the side of generosity. The appellant submits that a cushion of no more than $50,000 or $60,000 should have been awarded. (In my experience “cushions” are usually awarded to relatively uninjured people against the possibility that their slight tort-induced incapacity might have adverse economic consequences in the barely foreseeable future.) Having regard to what I accept as a fair concession by the appellant as to an appropriate figure and doing the best I can I would substitute $100,000 for $306,079, such award embracing the interest component as regards the comparatively small proportion applicable to the period before the date of judgment below.

Roman’s therapy, pharmaceutical and associated costs

55    $86,192 was allowed for therapy and medication costs for Roman. The learned judge’s reasoning was as follows:

I accept the submission on behalf of Roman that he is likely to need weekly therapy and that is based on the next ten years at $140.00 per week multiplied by the appropriate multiplier of 451.7. I allow the sum of $63,238.00. On a life expectancy of a further 15 years after the first 10 years at 4 sessions per year the calculation on the basis of $10.77 per week multiplied by 922.2 (being the 25 year multiplier) at $9832.00, less $10.77 multiplied by 451.7 (being the 10 year multiplier) being $4,864.00 which gives a net calculation of $4,968.00, which I allow.
I also accept the evidence that Roman will require the anti-depressant drug Prozac and also an anti-psychotic drug, Serenace, and an amount should therefore be made for a 10 year treatment period. The cost of Prozac is approximately $70.00 for 20 tablets, including dispensing fee. Roman will require one per day at a cost of $24.50 per week. The cost of Serenace is approximately $21.00 for 100 x 5mg tablets which he will need two per day at a cost of approximately $3.00 per week making in all $27.50 per week times a multiplier of 451.7 totalling the sum of $12,422.00 which I allow.
Roman will require some travelling costs since he will need to attend therapy at Gosford for a lengthy return trip. The result of these proceedings is likely to be that there will be a relocation of the family and it is likely that counsellors will be found closer to his eventual residence. I allow $10.00 per week for such costs since there is no evidence on which I can readily base a cost. That amount at the multiplier of 451.7 [ie for 10 years] is the sum of $4517.00 to which I add $500.00, providing relocation travel costs, being $5017.00 in total.
It is claimed on Roman’s behalf that there will be future counselling required after the 10 years at four counselling sessions per year, which is claimed on a basis of $1.15 per week. I calculate this sum of $1.15 at the multiplier of 922.2 less $1.15 per week at 451.7 making the sum of $547.00 the total allowance therefore allowed for therapy is the sum of $86,192.00.

56 The appellant submits that no more than $15,000 should have been awarded on this account, representing effectively a cushion rather than a particular calculation. I disagree. In my view the trial judge was entitled to approach the necessarily impressionistic exercise in the way he did. 57 The appellant effectively concedes that there was evidence to support the award in relation to future therapy needs. Although the award in this respect is generous, and perhaps optimistic in its implicit conclusion that Roman would avail himself of the therapy provided for, I do not find appealable error. Likewise with the inclusion of the “guesstimate” for travelling costs. 58 The principal complaint on appeal relates to the allowance for medication (prozac and serenace). The trial judge took no account of the safety net afforded by the pharmaceutical benefits scheme pursuant to the National Health Act 1953 (Cth). 59 The judgment makes no reference to any submission along these lines at trial and counsel for the appellant could not recall whether the trial judge was addressed on this point. The way in which Dowd J approached the task suggests strongly that he was not, and that he worked off agreed figures. 60 The statutory safety net operates differentially depending on the patient’s circumstances. While it would be possible to proceed on the factual assumptions most adverse to Roman’s interest and apply the safety net to them, I do not consider it just to permit the matter to be agitated on appeal. It would be quite inappropriate in the circumstances for the matter to be determined for the first time at this stage of these proceedings. 61 The point involves a fairly small sum. It is one of principle and general importance. Issue was barely joined on the complex legal principles involved. We were referred in the most general of terms to Part VII Division 1A and Division 2, but not to State Government Insurance Commission v Hitchcock, Supreme Court of Western Australia, Full Court, Ipp, Wallwork and White JJ, 11 March 1997, unreported, which lends support to the appellant’s argument. Nevertheless, the submission was developed in the most embryonic of forms. 62    This part of the appeal fails.

Background findings relevant to aggravated and general damages

63    I have touched on the family history in dealing with Roman’s economic loss. It is necessary to look a little more closely at the personal circumstances of the two respondents in so far as they provide background to the issues of aggravated and general damages. 64    As indicated, Roman was born in Poland in 1948. He came to Australia in 1980 with his then wife and their daughter. In about 1982 he separated from his wife and suffered emotionally as a result, threatening to hang himself in 1983. His work history at BHP in the 1980s was unhappy, marked by the work injuries referred to above and poor relations with fellow workers. By June 1990 he had aggravated depression and anxiety as a result of his injuries and it was then that he ceased work at BHP.
65    Roman married Lamphud in October 1987. 66    Lamphud was born in Thailand of Cambodian parents in 1962. She came from a rural background having left school at 11. Her English is very limited and she does not speak her husband’s language, Polish, nor does he speak Thai or Cambodian. 67    The first child of the marriage (Delores) was born in 1992. Delores was three years and three months at the time of Maria’s birth. The couple have had a third child (Dominic), born in July 1996. 68    During the short period of Maria’s life Lamphud was, Dowd J held, sufficiently knowledgable in English to understand in fairly general terms what was going on. When Roman complained and spoke to the hospital authorities, he was speaking on behalf of them both. 69    The following findings were also made:

I accept the evidence on [Lamphud’s] behalf that she was pressured by the Hospital staff to terminate Maria’s life.
The fact that Lamphud held Buddhist beliefs as to kharma and reincarnation made the circumstances of the autopsy particularly appalling to her. She believed, on reading the autopsy report, that some of Maria’s body parts had been harvested, as indeed did Roman. And although, as I indicated above, the failure to obtain her consent or concurrence to the autopsy and the fact that there was no proper explanation of the autopsy procedure does not entitle her to aggravated or exemplary damages, it is nonetheless a significant part of the pain and suffering experienced by Lamphud. It is likely that this pain and suffering will continue for all of her life, fading as time assists in the healing process. Nonetheless, it will continue because of her belief that proper funeral rites could not be performed on the body of Maria after Maria’s death. The continued distress and anxiety felt by both parents is, in part, a result of their agony during the Coroner’s inquest and the matters that I have referred to in relation to Roman.
The acute ongoing distress is very clear from the medical evidence supporting Lamphud’s claim. I find that she is, and will continue to suffer from a Pathological Grief Reaction, that a Post Traumatic Stress Disorder exists and will continue for many years to come, and that severe depression, insecurity and agitation and a change of personality have resulted from the fault of the defendant.
Lamphud continues to have a need for counselling and medication, although it is not clear that she will continue to take that medication.
General damages

70    The awards of general damages ($200,000 for Lamphud and $180,000 for Roman) are challenged on the grounds that (a) they were manifestly excessive, (b) they duplicated the awards of aggravated damages and (c) because of impermissible reliance upon an award of damages in an unrelated case. 71    Dowd J addressed the computation of these heads of damages in the following terms:

Roman’s General Damages
It is submitted on behalf of Roman that the issue of Roman not being of “normal fortitude”, is not relevant for liability in calculating general damages: Jaensch v Coffey [(1984) 155 CLR 549] per Gibbs J at 556. I concur with that submission. Calculation of pain and suffering in general damages must take into account the appalling way in which Roman was treated in relation to the issue of the non-re-ventilation of Maria and the pressure, as submitted on his behalf, that Maria not be re-ventilated because of the cost to the Hospital. The fact that Roman is a difficult person is not to the point. The depression from which he suffered before the injury would probably have resolved. It is in my view now unlikely to ever resolve. The agonies through which Roman has had to continue through the Coroner’s inquest and subsequent legal proceedings, including the fact that the police and hospital contended to the Coroner that there was no fault on the part of the hospital.
The ongoing grieving has distorted and will continue to distort the rest of Roman’s life. I accept as genuine the grief with which Maria’s ashes were brought and remained in court during the course of the hearing. This was no contrivance.
Damages at common law are extremely difficult to calculate, for pain which is suffered is inevitably idiosyncratic to the individual. The general damages to which Roman is entitled as a result of the breach of the defendant’s duty is assisted by the reasoning in the decision of Strelec v Nelson & Ors , an unreported decision of Smart J on 6 February 1996, to which I have been referred where the sum of $130,000 was awarded to a mother in circumstances not entirely dissimilar. I consider that the general damages to be awarded to Roman should be the sum of $180,000. To that sum I consider that there should be added aggravated damages for the reasons I have earlier given which I calculate at an additional 20% making an additional sum of $36,000.00. I allow therefore a total of $216,000 for general damages including the aggravated damages.

…

Lamphud’s General Damages
I consider that the pain and suffering that Lamphud has gone through, as I have outlined above, and the fact that she will have to live with this injury for the rest of her life to a large extent, and the unremitting and continuous grieving, will in fact impact very severely on her. She is not likely to ever fully recover.
Looking at the provisions in Strelec referred to above, and examining the nature of general damages awarded for personal injury, I consider that the pain and suffering thus endured by Lamphud entitles her to a sum of $200,000. And for the reasons that I have enunciated in relation to aggravated damages, I consider that that aggravation should add 20% to the damages that Lamphud has been awarded, making an additional $40,000.00, being $240,000.00 in all.

72    It is unclear to me what the primary judge was referring to when he cited “the reasoning” of Smart J in Strelec v Nelson & Ors as providing assistance on the issue of general damages. For this reason alone, I do not consider the awards vitiated by reference to the principles in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. 73 Planet Fisheries was decided at a time, long past, when the vast majority of judges came to the bench with general experience in common law damages for personal injury. Yet it is still the law, even extending to appellate judges (Moran v McMahon (1985) 3 NSWLR 700. Cf Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 59). 74 The judicial method enjoined in Planet Fisheries is at variance with current appellate practice in sentencing. It tends to promote advocacy by generalities and decision-making by untested anecdote or worse. It seems at odds with basic epistemological learning as to the way in which people acquire general information and seek to maintain consistency and fairness in their dealings. For these and other reasons, the method which it enjoins strikes me as hindering rather than aiding judges in their quest for “the sound exercise of a sense of proportion” which is enjoined in Planet Fisheries (at 124). It also impedes the quest for consistency, something that is “important, because it assists in achieving justice between one claimant and another and one defendant and another. It also assists to achieve justice by facilitating settlements” (Heil v Rankin [2000] 2 WLR 1173 at 1186 (English Court of Appeal)). There are other difficulties explained by Kirby P and Priestley JA in Moran. See also CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223. 75 It is difficult to imagine that Barwick CJ, Kitto J and Menzies J were blind to these matters when they decided Planet Fisheries. Their Honours appear to have concluded that the cost of allowing juries or even trial judges to be addressed about specifically-derived norms or standards of general damages in particular fields was disproportionate to any benefits capable of flowing from such an approach. 76    The cost-benefit analysis of continuing to follow the “visceral approach” (Kirby P in Moran at 710) apparently dictated by Planet Fisheries must remain the exclusive prerogative of the High Court. I can do no more than reiterate Priestley JA’s request in Moran for reconsideration of this important topic. 77    I turn to the broad attack on general damages on the basis that the two awards were beyond the bounds of a sound discretionary judgment. The principles are discussed in Miller v Jennings (1954) 92 CLR 190 and Sullivan v Micallef (1994) ATR ¶81-308. 78 In assessing Roman’s general damages, Dowd J paid regard to his antecedent psychological condition. However, he made an important finding that the depression which would probably have resolved was now unlikely ever to resolve. The appellant has not persuaded me that this finding should be set aside, based as it is upon the trial judge’s advantages in seeing key witnesses. 79 The appellant points to evidence suggesting that the couple have coped to a degree and have extended their family since Maria’s death with the birth of their son. Nevertheless, the respective prognoses are gloomy. I have already referred to Dowd J’s findings concerning Roman. Dr Phillips reported as follows concerning Lamphud in March 1996:

Mrs Marchlewski has a cluster of unremitting psychological symptoms which include a belief that the doctors at John Hunter Hospital killed her baby, withdrawal from those around her, marked emotional lability, depression and anxiety, suicidal ideation, rumination about the past, a fear of going to sleep, insomnia and psychophysiological disturbances (headache, abdominal discomfort). The symptoms remain of intensity sufficient to interfere with her day-to-day life.
The symptom pattern almost certainly represents an adjustment disorder with depressed mood and anxiety DSM IV 390.24. The symptoms suggest also the presence of post traumatic stress disorder DSM IV 309.81. Specific note should be made of her withdrawal from others, her level of vigilance (avoiding sleep, insomnia) and her inability to put the tragedy behind her. She appears not to have flashback experiences, but she may have failed to understand fully my questions in relation to this.
Mrs Marchlewski continues to have symptoms currently. There is no indication that she is improving. Her prognosis appears to be relatively poor.

80    The slightly different awards are understandable having regard to Roman’s pre-existing psychological condition and the significantly longer period during which Maria’s mother, Lamphud will endure the compensable sequelae of the appellant’s negligence. 81    It is relevant that the wrong was done to a couple whose vulnerability was heightened by their language and cultural isolation. The general principle of taking the victim as you find the victim also means that it is proper to have some regard to Lamphud’s religious beliefs as to the impact of an autopsy upon her daughter’s prospects of reincarnation (cf Kavanagh v Akhtar (1998) 45 NSWLR 588). 82 I am not persuaded that the awards of general damages were appealably high. However, they are very substantial and, for this reason the additional awards of aggravated damages cannot find justification (on appeal) by reassignment to the category of ordinary general damages by reference to the principles in Robinson v Riley [1971] 1 NSWLR 403 if error is detected in those awards of aggravated damages. 83 I shall explain later why it is unprofitable to address the appellant’s challenges to particular findings that help establish causation and reasonable foreseeability between the parents’ psychiatric injuries and the way in which the Hospital addressed the aftermath of its initial negligence.

Aggravated damages

84    Each respondent had claimed aggravated and exemplary damages. They relied on two matters. The first related to the hospital’s alleged but disputed initiation of the coronial inquest, with its concomitant autopsy. The second related to the decision made by hospital staff on 16 October 1992 that Maria was “not a candidate for resuscitation” in the event that her condition deteriorated. 85    As regards the first ground, the claims for both aggravated and exemplary damages were rejected. The hospital was held to have acted lawfully in acceding to Roman’s request for a coronial examination. The decision to have a coronial post mortem lay with the coroner under the Coroners Act. The issue of an inquest was in any event a natural consequence of the initial act of negligence. The hospital’s conduct was held not to warrant any punishment nor to have generated a claim for aggravated damages. 86    As regards the undisclosed “no-resuscitation” decision of 16 October 1992 Dowd J declined to award exemplary damages. However, he awarded aggravated damages to each respondent, in a sum representing 20% of the general damages found appropriate in each case. 87    The decision to award aggravated damages is challenged both in its own right and on the basis that the damages awarded overlapped with those properly payable as general damages. 88    Dowd J explained his reasons in the following passage:

In relation to the decision on 16 October 1992 that Maria was not a candidate for resuscitation, the Hospital staff had clearly formed the view that Maria could never have sustained any meaningful quality of life; her injuries were irreversible and death at an early age even if full ventilation treatment had continued was a real likelihood.
The Hospital had a duty to Maria, but also to Lamphud and Roman. The failure to obtain either the parents’ consent or approach a court for an order that the treatment be terminated constituted a total disregard of the feeling of Lamphud and Roman nothwithstanding what would appear to the Hospital to be a meaningless prolonging of human life. A judgment would probably have been made that seeking further consent would be a waste of time. The decision not to re-intubate would mean inevitably, even though the parents were not told of that decision or the likely consequence thereof, that a reasonably competent neonatologist would know that resuscitation using a bag without an endotracheal tube permits gas to enter a baby’s stomach as well as lungs, and that where gas enters a baby’s stomach there is an increased risk of provoking aspiration which is likely within a short time to cause aspirational pneumonia, and in the circumstances of Maria, that it was likely to be fatal. The fact that the decision not to re-ventilate Maria was made in her best interests is irrelevant to the question of aggravated damages, which Lamphud and Roman claim. The Hospital wilfully and deliberately disregarded the wishes of the parents with the knowledge that any non-ventilator resuscitation would probably be ineffective to preserve Maria’s life. What the Hospital did was to allow parents, in the terrible emotional state they were in, to believe that Maria was stable or indeed improving, and thus deprived them of an opportunity or apparent need to pursue alternative treatment, ineffective though alternative treatment may have been. It meant that the damage which the defendant has admitted was cruelly exacerbated. …
However painful the decision may have been in the circumstances of Lamphud and Roman I do however consider that, in the light of the very real damage after the original injury and the months and years that followed, and will follow, the actions of the defendant in making the 16 October 1992 decision, without the parents’ concurrence, aggravated the damage that they would otherwise have suffered. The strongly held belief of both parents in the future life of Maria and the opportunities of medical care, however unsoundly based that may have been, has meant that the pain, anguish and other damage that they have suffered has been exacerbated by the Hospital’s action during the four short weeks of Maria’s life.
Later in the judgment, in the context of general damages payable to Roman, his Honour referred to “the appalling way in which Roman was treated in relation to the issue of the non re-ventilation of Maria” .

89    The awards of aggravated damages are challenged on appeal. Somewhat surprisingly in view of the state of the authorities (see below), it was conceded that damages for negligence may include an “aggravated” component in a proper case. The awards were attacked on the narrower grounds that they extended to areas of hurt that lie outside the scope of damages for pure psychiatric injury and because the reasoning in the present case reveals a doubling-up of compensatory damages. 90    There is no cross appeal. Nor was any notice of contention filed. The aggravated damages were sought and awarded on the basis that they stemmed from the original act of negligence at Maria’s birth. This was the only conceded act of negligence. 91    The reference to the Hospital’s “failure to obtain either the parents’ consent or approach a court for an order that the treatment be terminated” should not be read as a finding that any legal wrong was thereby involved. No such issue was fought at trial. The case was argued at trial and on appeal on the basis that the appellant’s conduct in making and implementing the no-resuscitation decision involved no independent tort to Maria, having regard to the principles discussed in Airedale NHS Trust v Bland [1993] AC 789. It follows a fortiori that the undisclosed non-resuscitation decision involved no legal wrong to the respondents. Before us, senior counsel for the respondents accepted that no amount of consultation would have produced consent from these parents to letting nature take its course (Tr p52). In recording these matters, I am not suggesting any error or oversight on the part of the respondents’ legal advisers. 92    It is well established that, in an appropriate case, tort damages may be increased or aggravated by reason of the defendant’s conduct towards the plaintiff after the initial wrong and during the period when the injury for that wrong is continuing to be felt or working itself out. The classical example is defamation, where conduct at trial may increase compensatory damages by giving rise to an aggravated damages component. Such conduct must go beyond what is involved in “a bona-fide defence raised properly or justifiably in the circumstances known to the defendant” (Triggell v Pheeney (1951) 82 CLR 497 at 514). 93 The question of principle (stated at its broadest) is whether aggravated damages are available with respect to the tort of negligence. Although the appellant accepted that they were, the principles need exploration if only as a backdrop to the matters that were in dispute on the appeal.

Are aggravated damages capable of being awarded for negligence?

94    Since Rookes v Barnard [1964] AC 1129 courts have generally recognised a distinction between exemplary and aggravated damages. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 primarily concerned exemplary damages. However, Taylor J (at 129-130) and Windeyer J (at 149-154) emphasised a formal distinction between aggravated and exemplary damages. Windeyer J expressed it in the following terms (at 149):

[A]ggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment-moral retribution or deterrence.

95    In Lamb v Cotogno (1987) 164 CLR 1 the High Court endorsed this position. In the judgment of the Court, Mason CJ, Brennan J, Deane J, Dawson J and Gaudron J said at 8 that:

Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded 'as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself’. (citation omitted)

96    Many pre-Uren cases referred to aggravated damages in a context where it would now be proper to describe them as exemplary damages. Even today, the formal distinction masks overlapping concepts because aggravated damages may serve punitive and deterrent functions at the same time as providing “aggravated” compensation. In Uren itself, Windeyer J doubted whether what he termed the “labels” of “aggravated” and “exemplary” damages denoted different concepts. He suspected “that in seeking to preserve the distinction we shall sometimes find ourselves dealing more in words than ideas” (at 152). Not surprisingly, Professor Julius Stone argued that the distinction was largely illusory (Stone, “Double Count and Double Talk: The end of Exemplary Damages?” (1972) 46 ALJ 311). The distinction is, however, well accepted in modern Australian law (see Gray v Motor Accident Commission (1998) 196 CLR 1). 97 The issue of identifying those wrongs which attract an award of aggravated damages and those wrongs (if any) that do not has received surprisingly little attention. There is a general discussion of the topic in a recent Report of the Law Commission (UK), Aggravated, Exemplary and Restitutionary Damages Law Com No 247, 1997 at pars 2.10-2.11. That Report expresses the firm opinion that aggravated damages are not available in personal injury actions based (solely) on negligence or actions for breach of contract (see pars 2.10-2.11, 2.26-2.36). The more specific issue is considered by Christine McCarthy, “Exemplary and Aggravated Damages in Medical Negligence Litigation” (1998) 6 JLM 187. 98 The case law reveals aggravated damages being awarded in a range of torts including defamation (Uren), intimidation (Rookes), trespass to the person (Myer Stores Ltd v Soo [1991] 2 VR 597) and malicious prosecution (Thompson v Commissioner of Police of the Metropolis [1998] QB 498). If it be the law that some torts are incapable of attracting an award of aggravated damages then it will be necessary to search for unifying criteria. The task is not easy, for at least two reasons. First, the distinction between exemplary and aggravated damages was not clearly recognised until comparatively recently, with the result that “aggravated” damages awarded in the past for certain torts may, on analysis, turn out to be exemplary damages. The need to identify the discrimen only appears to have been recognised comparatively recently. Secondly, it is difficult to discern any common thread linking the wrongs for which an award of (non-exemplary) aggravated damages has been made. The Law Commission (UK) concluded op cit, (par 2.11, footnotes omitted) that:

It is hard to discern any common thread linking these “wrongs”. Most, though not all, are actionable per se . They involve interference with various types of interest: for example, a dignitary interest (assault and battery, false imprisonment, malicious prosecution, defamation, intimidation and unlawful discrimination), a proprietary interest (trespass to land and nuisance) or a commercial interest (unlawful interference with business). In most, though not all, the primary damage is likely to be non-pecuniary. All that can be said with any measure of confidence is that they are all torts, and, moreover, torts for which damages tend to be “at large”. But this is not a sufficient definition, since not all wrongs where damages are ‘at large” in this sense attract aggravated damages.

99    In England the general debate proceeds as an exegesis of Lord Devlin’s speech in Rookes v Barnard. In Broome v Cassell & Co Ltd [1972] AC 1027 at 1130-1, Lord Diplock expressed his agreement with the view that Rookes “was not intended to extend the power to award exemplary or aggravated damages to particular torts for which they had not previously been awarded: such as negligence or deceit”. 100    In Kralj v McGrath [1986] 1 All ER 54 Woolf J (as he then was) considered it wholly inappropriate to introduce the concept of aggravated damages into claims for breach of contract and negligence. His Lordship conceived this to be wholly inconsistent with the compensatory function of damages in those areas. Kralj was a case of medical negligence that involved treatment at birth described as “horrific” and “completely unacceptable”. Woolf J was willing to award some compensation for the mental distress suffered by the mother, but as an aspect of compensatory damages (see at 62). 101    Kralj was approved and applied by the English Court of Appeal in AB v South West Water Services Ltd [1993] QB 507. The Court struck out claims for both exemplary and aggravated damages, the latter being pleaded as based on indignation at the defendant's conduct following a negligently committed public nuisance. It was held that any greater or more prolonged pain or suffering and “real anxiety or distress” which were suffered as a result of the defendant's subsequent conduct were compensable by way of general damages for pain and suffering (see at 527 H, 528 E-F, 532F-G). In the Court’s view, feelings of anger and indignation were not a proper subject of compensation and could not attract an award of aggravated damages, since they were neither damage directly caused by the defendant's tortious conduct nor damage which the law had ever previously recognised. 102 Stuart-Smith LJ (with whom Simon Brown LJ agreed) said (at 527-8):

In my judgment if the plaintiffs experienced greater or more prolonged pain and suffering because the nuisance continued for longer than it should have done or they drank more contaminated water with ill effect that is a matter for which they are entitled to be compensated by way of general damages.
Likewise, if uncertainty as to the true position caused by the defendants’ lack of frankness following the initial incident led to real anxiety and distress, that is an element for which they are entitled to compensation under general damages for suffering. But anger and indignation is not a proper subject for compensation; it is neither pain nor suffering.

103    Sir Thomas Bingham MR said (at 532-3):

I turn, lastly, to the claim in paragraph 27 of the master statement of claim for aggravated damages. The plaintiffs are of course entitled to be fully compensated for all they suffered as a direct result of the defendants’ admitted breach of duty. The ordinary measure of compensatory damages will cover all they have suffered as a result of that breach, physically, psychologically and mentally. Full account will be taken of the distress and anxiety which such an event necessarily causes. To the extent that any of these effects was magnified or exacerbated by the defendants’ conduct, the ordinary measure of damages will compensate. The question is whether, in addition to full compensatory measure, the plaintiffs have pleaded a sustainable claim for additional compensation by way of aggravated damages. This is claimed in paragraph 27 on the basis that the plaintiffs’ feelings of indignation were aroused by the defendants’ high-handed way of dealing with the incident. I know of no precedent for awarding damages for indignation aroused by a defendants’ conduct. Defamation cases in which a plaintiff’s damages are increased by the defendant’s conduct of the litigation (as by aggressive cross-examination of the plaintiff or persistence in a groundless plea of justification) are not in my view a true exception, since injury to the plaintiff’s feelings and self-esteem is an important part of the damage for which compensation is awarded. In very many other tort actions (and, for that matter, actions in contract, boundary disputes, partnership actions and other disputes) the plaintiff is indignant of the conduct of the defendant (or his insurers). An award of damages does not follow: nor, in my judgment should it, since this is not damage directly caused by the defendant’s tortious conduct and this is not damage which the law has ever recognised.

104    I respectfully agree with these English cases and the reasoning upon which they proceed. 105    The decision under appeal is the only superior court decision that I am aware of in which aggravated damages have been awarded in relation to a negligence claim. Such awards have however been made in the District Court of New South Wales (see Brady v Tamworth Base Hospital and Health Service, Freeman DCJ, 31 January 2000, which followed the decision of Dowd J presently under appeal. See also Tan v Benkovic which is the subject of another appeal in this Court: [2000] NSWCA 295). 106 Basing itself upon Kralj, Halsbury’s Laws of Australia states that the absence of any element of damage at large will generally exclude an award of aggravated damages in negligence (except where there is a concurrent liability in trespass) or breach of contract. Fleming, The Law of Torts 9th ed at p 74 is more guarded, emphasising that Kralj expresses the law in England. See also Williams v The Minister Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255 at [159]. 107 There is an obiter dictum by Forster J in Jervois Sulphates (NT) Ltd v Petrocarb Explorations NL (1974) 5 ALR 1 at 33 to the effect that aggravated damages may be awarded in any class of action. The learned judge cites Clerk & Lindsell on Torts 13th ed p249. That edition of this text does not cite any negligence cases and it was published before Kralj and AB. The current (17th) citation of Clerk & Lindsell contains no similar statement (cf at pp1497-8). 108    In O'Reilly v Hausler (1987) 6 MVR 344 at 346, Dowsett J expressed serious doubt as to whether aggravated damages can be calculated with respect to personal injury without double compensation. See also Bergman v Haertsch [2000] NSWSC 528 at [458] (Abadee J). 109 Apart from lack of precedent, the reason offered in AB for refusing to contemplate an award of aggravated damages in an ordinary negligence case was that anger and indignation are not proper subjects for compensatory damages. This rationale sits uneasily with cases where actions for negligence have resulted in damages which compensate for mental distress, vexation or annoyance, at least when parasitic upon other types of damages. The principles and cases were discussed recently in Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 37-39 per Sheller JA, with whose reasons Priestley JA and I agreed. Other decisions recognise that damages may be awarded for injured feelings, although the categories of wrongs that may attract such an award remain debatable (cf Archer v Brown [1985] QB 401 at 424-6). 110 The upshot is that I find no clear guidance in Australian case law on the broad question whether aggravated damages are capable of being awarded in a negligence action. In point of principle, I seriously doubt the need to engraft an award of aggravated damages upon a negligence claim. Compensatory damages would normally include damages for mental distress or injured feelings so long as they can be linked to the tort through existing principles of causation and remoteness of damage. To speak of aggravated damages as a separate component can only have the capacity to confuse and run the risk as to double compensation (cf Clerk & Lindsell on Torts 17th ed p1498, O’Reilly at 346). 111 Fortunately, I can pass to two narrower issues where I perceive the position to be clearer and which are sufficient to dispose of the present controversy.

Aggravated damages in a claim for pure nervous shock

112    The appellant’s challenge in point of principle raised two subsidiary issues which I shall state in the context of the specific case:

• to what extent was the claim for aggravated damages controlled by reason of the claim lying within a specific field of the law of negligence, ie that relating to psychiatric injury (“nervous shock”)?
• if (as the appellant always asserted) the non-resuscitation procedure was an appropriate way of responding to the crisis stemming from the original negligence, would it not follow that the compensatory damages for “nervous shock” suffered by the respondents would include compensation for the psychological impact of the Hospital’s actions upon the respondents?

113    The respondents seek to justify the award of aggravated damages on the basis that insult was added to injury by the insensitivity with which the doctors were said to have handled the situation stemming from the initial negligence. The insult is of a type compensable by an award of aggravated damages in a proper case, because it constituted “injury to … feelings caused by insult, humiliation and the like” (Lamb v Cotogno, passage quoted in par 95 above). 114    I would reject this submission, because the respondents’ claim must be assessed in accordance with the principles relating to negligent infliction of pure psychiatric injury. Unlike defamation or the situation addressed in Lamb, there is no independent tort upon which parasitic damages for psychiatric injury can be grafted. 115    The respondents’ parental relationship with Maria removes any issue that might arise by virtue of their status as “secondary victims” of the Hospital’s negligence (Law Reform (Miscellaneous Provisions) Act, 1944, s4). However, other control devices attending the law of negligent infliction of pure psychiatric injury remain. They have been discussed recently in Morgan v Tame [2000] NSWCA 121. 116 One such limitation is the principle that mere grief, distress or normal emotional reaction based on a wrong done to a third party are not compensable in a “nervous shock” claim (Macpherson v Commissioner for Government Transport (1959) 76 WN(NSW) 352, Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172, Jaensch v Coffey (1984) 155 CLR 549 at 587, Morgan at [130]). Artificial as it is, general damages must be apportioned so as to exclude non-compensable components (see Marinko v Masri [1999] NSWCA 364). 117 In my view, it follows that to allow an award of aggravated damages in a claim for negligently inflicted pure psychiatric injury would put back what the specific law relating to “nervous shock” precludes. This would fracture the symmetry of tort law in this area of discourse. In a field where policy and precedent preclude or limit compensation for mental distress or injured feelings, policy and precedent ought not to be trumped by an appeal for aggravated damages. 118 In challenging the awards of general and aggravated damages the appellant attacked some of the specific findings of fact that underpinned them (see Grounds 6, 9, 10, 12 and 30). Specifically, it was contended that his Honour erred in finding that the wishes of Maria’s parents were “wilfully and deliberately disregarded”. The appellant also disputed his Honour’s description of its conduct as “cruelly exacerbating the parents’ damage” or as “appalling”. Alternatively, it was submitted that it was impermissible to have taken into account the way in which the parents were treated in relation to the non-ventilation of Maria, the pressure that Maria not be re-ventilated because of the cost to the Hospital, the impact of the autopsy and inquest, and the conduct of the Hospital at the inquest (appellant’s submissions par 27). 119    These submissions and the manner in which the parents sought to meet them opened the door to a vast legal and ethical inquiry as to the circumstances in which proper care of a profoundly injured person may entail termination of artificial life-support systems (cf Bland’s Case) and as to the legal, ethical and professional duties of health care workers towards parents who refuse at the time to accept the inevitability of their child’s death. In my view, it is unnecessary to enter these deep waters. That is because I am content to assume in the Hospital’s favour that it acted properly, as it contended. In other words, I would (for the sake of argument) accept the Hospital’s submission that the manner in which it dealt with the situation in which its disputed negligence had placed the respondents was within the range of an appropriate response to the initial event. I would do so even if the parents were not told about the medical decision to let nature take its course when the inevitable deterioration in Maria’s condition occurred, after she had been removed from the life support system. Likewise with the autopsy and inquest. 120    This only serves to emphasise the direct and (on the appellant’s case) reasonable connection between the anguish suffered by the parents and the Hospital’s initial negligence. Since the Hospital admitted that its negligence at Maria’s birth constituted a breach of the Hospital’s duty of care to the parents and caused them “nervous shock” sounding in damages, it seems entirely unprofitable to examine whether there was an independent breach of any legal or moral duty to the parents associated with the making and implementation of the no-resuscitation decision, the autopsy and the inquest. It is certainly unprofitable in the present context where, as I have indicated, the law relating to pure psychiatric injury precludes recovery of a separate component of aggravated damages to compensate for the hurt, humiliation and indignation stemming from the manner in which the Hospital responded to the crisis it had created. 121    The awards for aggravated damages should be set aside.

Roman’s award for Delores’ therapy and counselling

122    A separate nervous shock claim had been advanced by the respondents’ daughter Delores (born July 1989 and aged eight at date of trial). The claim was dismissed on the basis that any emotional trauma suffered by Delores was purely derivative to her parents’ incapacities stemming from the tort. This was not challenged on appeal. 123    The primary judge nevertheless awarded Roman $5000 on account of future counselling and medication for Delores. 124    Dowd J explored this as follows:

I have received submissions that Delores will require psychiatric therapy and counselling from the time that she is 18 years of age for a period of five years on the basis of six one hourly consultations per year at $160 each, being a total of $960 per year and additional medication. This is the responsibility of the father as the income earner in this family. The counselling is a function which would be substantially within the province of parents, but the parents have been deprived of the capacity to provide that counselling, notwithstanding that obligation to Delores. The evidence before me makes it very difficult to determine not only counselling but the question of medication. I consider that a sum to be provided for future counselling and medication should be allowed at the amount of $5,000.00.

125    Unfortunately this passage casts little light upon the findings underpinning the award or the legal basis upon which Roman’s responsibility for his daughter’s welfare translated into a head of his damages stemming from the wrong done to him. 126    Delores gave no evidence. The only expert evidence came from Dr Phillips, who had not seen her. Neither of the respondents gave evidence at trial (February 1998) about her current health. 127    The passage I have set out speaks of Delores’ counselling needs after she turns 18. The respondents submit that this is a simple mistake and that his Honour intended to say “until the time that she is 18”. I think this must be correct. It is consistent with the limited evidence as to Delores’ present needs for counselling (Bl 32, 40, 41) and at least partly explains why the claim was treated as part of Roman’s responsibility as father. 128    However, the other difficulties remain. In the absence of findings to base the award in Roman’s proceedings or any submissions to justify it, it should be set aside, small though it is.

Disposition

129 The appeal should therefore be upheld in part. The respondents should pay the appellant’s costs of the appeal and have a certificate under the Suitors’ Fund Act, if qualified. 130 The parties should recalculate the damages, make any necessary adjustments of interest, address the question of restitution (if any) of moneys already paid, and deliver appropriate short minutes to the Registrar within 7 days. 131 STEIN JA: I agree with Mason P. 132 HEYDON JA: I agree with Mason P.

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