HUNTER AREA HEALTH SERVICE v MARCHLEWSKI & ANOR

Court of Appeal (NSW)|2000-06-01|Before: Mason P, Stein JA, Heydon JA, Dowd J

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. ***********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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

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.

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (22)