South Western Sydney Local Health District v Sorbello

[2017] NSWCA 201

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

South Western Sydney Local Health District v Sorbello [2017] NSWCA 201

Hearing dates:

6 June 2017

Decision date:

11 August 2017

Before:

Macfarlan JA at [1]; Meagher JA at [2]; Simpson JA at [3]

Decision:

(1)  Appeal dismissed;

 (2)  The appellant to pay the respondent’s costs of the appeal.

Catchwords:

NEGLIGENCE – assessment of damages – non-economic loss – conflicting expert opinion evidence as to nature and extent of “pure mental harm” injury

 

NEGLIGENCE – assessment of damages – future economic loss – conflicting expert opinion evidence as to causation of reduced “earning capacity” – distinction between working capacity and earning capacity

  NEGLIGENCE – assessment of damages – future economic loss – onus of establishing ability to exploit a residual working capacity

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 13, 15, 16, 29, 30, 31, 32, 33

Cases Cited:

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Mead v Kearney [2012] NSWCA 215
Nominal Defendant v Livaja [2011] NSWCA 121
State of NSW v Moss [2000] NSWCA 133

Texts Cited:

Harold Luntz: Assessment of Damages for Personal Injury and Death, (4th ed 2002, Butterworths)

Category:

Principal judgment

Parties:

South Western Sydney Local Health District (Appellant)
Rosemary Sorbello (Respondent)

Representation:

Counsel:
M T McCulloch SC/S A Woods (Appellant)
D Higgs SC/I McGillicuddy (Respondent)

  Solicitors:
Curwoods Lawyers (Appellant)
Beilby Poulden Costello Lawyers (Respondent)

File Number(s):

2016/290805

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Sorbello v South Western Sydney Local Health Network; Sultan v South Western Sydney Local Health Network [2016] NSWSC 863

Date of Decision:

24 June 2016; 27 September 2016

Before:

Schmidt J

File Number(s):

2011/108230

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent gave birth at the Bankstown Hospital to a son, Joseph, in 2008. Joseph was born with profound disabilities, such that his life expectancy is significantly shortened, and he will require lifetime care. While a claim on behalf of Joseph was settled on confidential terms, the respondent claimed damages in the Supreme Court for personal injury, in the nature of mental harm, suffered by her as a result of the negligence of the appellant. Liability was admitted by the South Western Sydney Local Health District and damages were awarded to the respondent under various heads, including non-economic loss, past economic loss, and future economic loss.

The appellant appealed the award of damages on two primary bases. First, the appellant challenged the primary judge’s acceptance of the expert opinion evidence of Dr Allnutt and Ms Luca (a psychiatrist and a psychologist retained on behalf of the respondent) over that of Dr Brown (a psychiatrist retained on behalf of the appellant) as to the causation of the respondent’s condition. The second basis asserted that the primary judge was in error in assessing the respondent’s residual earning capacity by casting an onus on the appellant to establish what…