Hunter Area Health Service v Marchlewski

The New South Wales Court of Appeal considered a claim brought by the respondent, Marchlewski, against the appellant, Hunter Area Health Service. The dispute arose from the treatment of Marchlewski's child, who was born clinically dead but resuscitated and placed on life support. Following the child's death, Marchlewski alleged negligence by the hospital, leading to nervous shock and economic loss. The hospital admitted a breach of duty of care that caused brain damage to the child, which in turn led to the child's death, and also admitted that this breach caused Marchlewski's nervous shock.

The Court of Appeal was required to determine several key legal issues. These included the extent to which damages for nervous shock could be awarded in the context of the child's death and the subsequent termination of life support. The Court also had to consider the availability and appropriateness of aggravated damages in a claim for negligence, particularly in cases of pure nervous shock. Furthermore, the Court examined the principles governing awards for economic loss, including the relevance of the Pharmaceutical Benefits Scheme in assessing future pharmaceutical costs, and the appropriate assessment of general damages for nervous shock, considering the respondent's pre-existing psychological conditions.

The Court's reasoning addressed the complex interplay between medical treatment decisions, parental rights, and the legal framework for damages. It acknowledged that in certain circumstances, the proper care of a profoundly injured person might involve the termination of artificial life support. However, the Court expressed doubt as to whether aggravated damages should be engrafted onto a negligence claim, particularly for pure nervous shock, and ultimately set aside awards for aggravated damages. The Court also reviewed the principles for assessing general damages, noting that awards should not be appealably high and should reflect established norms. The Court found that part of the nervous shock award relating to future counselling and medication for the respondent's daughter lacked sufficient factual findings to support it, and therefore set aside that portion of the award.