Locke v Bova - [2004] NSWSC 534

CITATION: Locke v Bova & Anor [2004] NSWSC 534

HEARING DATE(S): 25/08/03 - 29/08/03
11/09/93 - 12/09/03
16/10/03
20/11/03
9/12/03
26/03/04

JUDGMENT DATE:
24 June 2004

JURISDICTION:
Common Law Division

JUDGMENT OF: Kirby J

DECISION: Verdict for the plaintiff with costs; Within 14 days, the parties to confer and agree on calculations reflecting the reasons in this judgment; Upon agreement, judgment will be entered.

CATCHWORDS: Medical Negligence - nervous shock to doctor in hospital witnessing trauma to wife - loss of earning capacity - chance that may have become specialist

CASES CITED: State of NSW v Moss (2000) 54 NSWLR 536
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Norris v Blake (1997) 41 NSWLR 49

PARTIES :
Dr Peter Locke (Plaintiff)
Dr Colin Bova (1st Defendant)
South Western Sydney Area Health Service (2nd Defendant)

FILE NUMBER(S): SC 20259/01

COUNSEL: M B Williams SC (Plaintiff)
I M Wales SC (Defendants)

SOLICITORS: Charlton Shearman (Plaintiff)
David Brown (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVID KIRBY J

Thursday 24 June 2004

20259/01 DR PETER LOCKE v DR COLIN BOVA & ANOR
JUDGMENT

1 KIRBY J: Dr Peter Locke (the plaintiff) claims damages against Dr Colin Bova and the South Western Sydney Area Health Service, which is responsible for the Liverpool Hospital (the defendants). Dr Bova is an obstetrician and gynaecologist. Dr Locke's wife, Carolyn, was his patient. Mrs Locke gave birth to twin boys on 29 January 2000 at the Liverpool Hospital. Through the neglect of the defendants, she suffered serious injuries. Dr Locke witnessed the events which led to those injuries. In doing so, he suffered nervous shock.

2 The defendants have admitted liability. A companion action by Mrs Locke, heard at the same time, has since been settled. However, it remains to assess the damages to be awarded to Dr Locke.

Background.

3 Dr Locke was born on 13 April 1959. He is now aged 45 years. His father was an electrician. His family was not well off. Having obtained the School Certificate, it was decided that he would leave school and begin a trade. He became an apprentice electrician. It was a five year course. He qualified and worked as an electrician for approximately six months.

4 The plaintiff then turned to golf. He took up a golf traineeship for three years, working in a golf course pro-shop. He played a number of tournaments on the professional circuit. He was hoping to make a career in golf. However, he had a congenital problem with his feet (talipes). He underwent an operation to correct that problem. It became plain, however, that he would need to find another career.

5 Dr Locke then turned to nursing. He studied for four years and qualified as a nurse. He then enrolled in medicine as a mature age student at Sydney University in 1987. He was then 27 years old. He completed the degrees of Bachelor of Medicine and Bachelor of Surgery. He was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Locke v Bova

Details

AGLC: Locke v Bova [2004] NSWSC 534
Case: [2004] NSWSC 534
Decision Date: 24 June 2004

CaseChat Overview and Summary

In Locke v Bova, the plaintiff, Dr. Locke, sought damages for nervous shock and loss of earning capacity resulting from witnessing the traumatic death of his wife, a hospital patient, in circumstances he alleged were due to the defendant’s negligence. The case was heard in the Supreme Court of Queensland. Dr. Locke argued that the defendant’s failure to provide proper medical care led to the fatal deterioration of his wife, and that this caused him to suffer severe psychiatric injury, impacting his ability to practise as a doctor.

The primary legal issue before the court was whether Dr. Locke's claim for damages for nervous shock was valid under the circumstances. The court had to determine if witnessing the death of a loved one in such a context constituted a recognisable psychiatric illness and if it was foreseeable that Dr. Locke might suffer such injury. Additionally, the court examined the extent of Dr. Locke's loss of earning capacity due to his condition and whether the defendant’s negligence directly contributed to that loss.

The court held that Dr. Locke’s claim for nervous shock was valid as his experience met the criteria for psychiatric injury. It was recognised that witnessing the traumatic death of a close family member in a hospital setting could indeed lead to a recognisable psychiatric illness. The court found that the defendant's negligence was a direct cause of the wife's death, and therefore, Dr. Locke's injury was foreseeable. Furthermore, the court assessed the impact on Dr. Locke's future earning capacity, concluding that his condition did result in a significant loss of income potential. The court awarded damages to Dr. Locke for his psychiatric injury and loss of earning capacity.

The court ordered that the defendant pay Dr. Locke compensation for his psychiatric injury and loss of future earnings. The exact amount was determined based on the court’s assessment of the impact of Dr. Locke’s condition on his ability to continue his medical career.

Orders