Sorbello v South Western Sydney Local Health Network; Sultan v South Western Sydney Local Health Network

Objections to evidence

1. It is convenient at the outset to explain why I received certain evidence over the Health Network's objections: a DVD and parts of the statements of Mr Sultan, Ms Ghamrawi, Ms Sorbello's sister, and Ms Carpinato, her mother.
2. The relevance objections had to be approached by reference to what was pleaded and what the parties had identified as remaining in issue, negligence and causation having been admitted. In the statement of claim what was advanced was a case on material facts claimed to have occurred prior to and including delivery, and subsequently. That Mr Sultan had suffered a psychiatric injury was in issue. The nature of Ms Sorbello's psychiatric injury and its likely prognosis were also in issue.
3. There was no issue as to how Joseph came to be injured as the result of admitted negligence while Ms Sorbello was in labour, during which an episiotomy was performed. The evidence of Ms Ghamrawi and Ms Carpinato was relevant to the issue of Mr Sultan's credit, as was that of Ms Sorbello and the Hospital's clinical records, those documents putting into context the feelings of guilt which both Ms Sorbello and Mr Sultan both expressed, at not having done more during the birth, to help protect Joseph from the negligence which caused the injuries which he suffers.
4. On the evidence of Ms Ghamrawi, after a very lengthy, difficult labour Ms Sorbello was left unattended and bleeding in a bed with a bucket placed underneath her, for at least 10 minutes after Joseph's birth. Mr Sultan gave similar evidence. Mr Sultan described the scene in his statement to have been "disgusting like a scene from a horror movie". He there said that he had felt worried, sick and shocked and that he did not know what to do, or say. Ms Sorbello had to remain in Hospital overnight and Joseph was transferred to Westmead Children's Hospital. The next day Mr Sultan got angry, when he spoke to Hospital staff.
5. Ms Ghamrawi, who had herself given birth the preceding year, said in her statement that "[t]he whole scene was very gruesome. Nothing like any birth I had ever seen before". She thought that she was going to faint. Ms Carpinato thought that she was going to pass out at one point and had to sit down, but remained in the room.
6. The DVD depicts part of Joseph's birth. Photographs taken of him at birth by Mr Sultan are also in evidence. The DVD was a part of the materials which the parties had instructed their experts with. It was objected to on the basis of relevance and unfair prejudice. It was admitted because it was plainly relevant to a fact in issue, namely, whether Mr Sultan had suffered a psychiatric injury, as the experts had agreed, if the histories he had given were truthful. Mr Sultan's credit was in issue. The histories he had given included flashbacks, dreams and intrusive thoughts about the birth. They were relevant to his diagnosis. It followed that the DVD was admissible under s 55 and s 56 of the Evidence Act 1995 (NSW).
7. I also concluded that its receipt was not unfairly prejudicial to the Health Network, as it claimed. No misuse to which the DVD might be put was pointed to. Rather, it was submitted, unfair prejudice resulted from "a subtle effect that no human being could possibly put out of their mind in viewing it". It was difficult to see the basis of that submission, given that it was not considered that this "subtle effect" was such that the DVD could not be provided to the psychiatrist the Health Network had engaged to examine Mr Sultan. If, in truth, what the DVD contained was so disturbing, it would, it seemed, tend to support the histories which Mr Sultan has given.
8. As it transpired, the DVD contained a very short video taken during Joseph's birth, which showed the application of a vacuum to his head, which had not yet emerged from the birth canal, while attempts to assist the delivery were pursued by the attending doctor, as well as certain discussions. That removed entirely the basis for any objection.
9. Neither childbirth itself, nor techniques such as those used during Joseph's birth to assist delivery which are depicted on the DVD, involve events which are so disturbing, that human beings are not capable of seeing them without adverse effect on their capacity to respond rationally. There is, nowadays, nothing unusual about support persons such as a husband, mother or sister being present during childbirth, or videoing it, even when assistance is required during delivery. It is the consequences which the procedures depicted in this short video have had for Joseph, not the procedures themselves, which have, undoubtedly, been disturbing for Joseph's parents, given the profound effects they had on him and them.
10. The DVD did not depict the episiotomy described in the evidence, or its aftermath, when nursing and medical staff present appear to have prioritised attending to Joseph after his birth over attending to Ms Sorbello.
11. I had also received the evidence of Mr Sultan, Ms Ghamrawi and Ms Carpinato about these events, over objection, because they, too, were relevant to what was in issue.
12. I was satisfied that it could not be accepted, as the Health Network argued, that these accounts were simply emotive characterisations of events which the witnesses had observed and unproven hearsay, aimed at colouring the conduct of the Hospital's staff, irrelevant to what remained in issue. The evidence was plainly relevant to what was in issue, particularly in relation to the question of whether Mr Sultan had suffered any injury. That aspect of the case depended on his credit, given the histories he had given those who had examined him. His statement accorded with those histories. The evidence of Ms Ghamrawi and Ms Carpinato corroborated aspects of them, as did that of Ms Sorbello. The statements were thus admissible and could not be rejected as being unfairly prejudicial.
13. It was whether those events had any impact on Mr Sultan's health which the experts had considered and formed opinions about. There was no unfairness in receiving evidence from those present at these events, as to what occurred and how they were thereby affected.

Jones v Dunkel inferences

1. In Mr Sultan's case it was contended that Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inferences arose from his failure to call evidence from his current wife, who could have given relevant evidence about matters such as the circumstances in which his employment came to an end in December 2011, in which she was seemingly involved, and the symptoms which he suffers.
2. As I explained in Sanchez-Sidiropoulos v Canavan [2015] NSWSC 1139, at [38] - [39] as to this principle, it is: "38 … concerned with a party's unexplained failure to call a witness, where it would be natural for that party to call that witness, or where the party might reasonably be expected to call that witness. Its operation was recently considered again in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75] - [96]. The three relevant considerations are: first, that the missing witness would be expected to be called by one party, rather than the other; second, that this evidence would elucidate a particular matter and thirdly, that the absence is unexplained. 39 If those conditions are satisfied, then as discussed at [79] of RHG Mortgage, the inference may be drawn that the witness' evidence would not have helped the party's case. That inference may then be used in two ways. Firstly, in deciding whether to accept any particular evidence given, either for or against that party, which relates to a matter about which the person not called as a witness could have spoken. Secondly, in deciding whether or not to draw inferences of fact, which are open in relation to matters about which that person could have spoken."
3. Given the unexplained failure to call his current wife to give relevant evidence which would support the credit issues which arise in his case, it must be accepted that Jones v Dunkel inferences are available to be drawn against Mr Sultan.

The Civil Liability Act.

1. Section 32 of the Act provides a limitation on the duty of care owed in respect of mental harm: "32 Mental harm - duty of care (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff."
2. Section 30 of the Act limits the damages which may be recovered for mental harm arising from shock. Both Ms Sorbello and Mr Sultan satisfy the requirements of the section, it relevantly providing: "30 Limitation on recovery for pure mental harm arising from shock (1) This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in peril by the act or omission of the defendant. (2) The plaintiff is not entitled to recover damages for pure mental harm unless: (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim. …"
3. Sections 31 and 33 provide further limitations in respect of damages: "31 Pure mental harm - liability only for recognised psychiatric illness There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness." "33 Liability for economic loss for consequential mental harm A court cannot make an award of damages for economic loss for consequential mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness."
4. In assessing any damages for future economic loss, attention must be paid to s 13, which provides: "13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

The undisputed evidence

1. Ms Sorbello and Mr Sultan were aged 23 and 25 respectively at the time of Joseph's birth in 2008. There was no issue that prior to his birth they had had a happy relationship and had been successfully pursuing their respective careers. Joseph was a wanted child. They planned to have more and were both working, in order that they could pursue the future they planned together.
2. They were both present at Joseph's birth, with Ms Ghamrawi and Ms Carpinato, after Ms Sorbello had undergone a difficult labour for some two days. Mr Sultan both observed the procedure which resulted in Joseph's injuries and videoed part of that procedure, until asked by the attending doctor to stop. What is recorded on the DVD evidences Mr Sultan's excitement and happiness at his son's impending birth. He gave evidence as to what he anticipated their future and his relationship with his son would bring.
3. Both Ms Sorbello and Mr Sultan were involved in Joseph's subsequent care, until he was aged two. They proved to be difficult and challenging years.
4. There is no issue as to the extent of the devastating consequences for Joseph, of the Hospital's negligence during his birth, which was gradually revealed to them over those years. He suffered profound injuries, physically and intellectually. It is agreed that his shortened lifespan has a range of up to 47 years, the parties agreeing that it is likely that he will live only to age 36. He has limited communication, cannot speak, is incontinent, cannot walk, or control his limbs, has to be fed through a tube to his stomach and will require the constant care by others, for his entire life.
5. Ms Sorbello and Mr Sultan provided the care Joseph needed, unassisted by the Hospital, which has only recently admitted its negligence, up until their separation in January 2011. They both later remarried, but Ms Sorbello's new relationship also failed. Her need to prioritise Joseph's care contributed to the breakdown of that relationship. Since their separation, Mr Sultan has had very limited involvement with Joseph, having seen him on only a few occasions, despite Ms Sorbello having agreed to him having access to his son.
6. Ms Sorbello has not been able to return to her work in administration since Joseph was born. She had taken 12 months maternity leave from her administrative position, but was not able to return to her employment. She resigned from that employment when told that her maternity leave could not be extended. On her evidence, while she would like to return to work, she doubts her capacity to do so, even with the assistance which she accepts that she will have in the future in providing Joseph with the care which he requires, given the settlement of the proceedings she brought on his behalf.
7. Mr Sultan worked full-time both before and after Joseph's birth, managing some 50 staff in the security industry, even increasing his working hours after he returned to work after a short break following the birth. It was in December, 2011, after he had begun a new relationship with his current wife, that Mr Sultan lost his employment as a supervisor in the security industry. He has not worked since; has unsuccessfully attempted to seek other employment with a friend who works in the security industry, Mr Melhem; and also unsuccessfully pursued the establishment of a new lawn mowing business, with his new brother-in-law, which failed.
8. On Mr Sultan's evidence, it was only the week before the hearing in May 2016, following a car accident, that he had formed the intention to seek treatment for his psychiatric condition and to, again, pursue a return to work.

What occurred during the labour

1. The evidence of those present at the birth all accorded with the histories which Mr Sultan gave the experts about the birth.
2. Ms Ghamrawi was with Ms Sorbello on 19 September when her contractions commenced. They continued on 20 and 21 September, when she went to Bankstown Hospital, but was sent home. Ms Sorbello was taken back to Hospital on 22 September and again sent home, given her still limited dilation. That night she was taken back to the Hospital and again sent home. Her waters broke at 7.30 am on 23 September and she returned again to the Hospital, accompanied by her husband, mother and sister. Ms Ghamrawi and Ms Carpinato were then concerned that she had been having contractions for days with little progress, as was Ms Sorbello.
3. After her admission on 23 September, Ms Sorbello said she was exhausted and was left to dose, while sitting on a chair, in pain and leaking fluid. She received no medical attention, but was attended by a midwife from time to time that day, for short periods, despite ongoing complaints of pain and lack of treatment made by Mr Sultan. At one point she was given a TENS machine to assist with pain. Ms Sorbello was increasingly concerned about the lack of attention she was receiving, as was Mr Sultan, who found staff to be rude and ignoring Ms Sorbello.
4. Ms Sorbello's hospital records confirm that they were advised that the labour ward was very busy that day. Ms Ghamrawi remembered Ms Sorbello asking about a caesarean and being told that the theatre was too busy. She raised her concern about her sister's tiredness and energy, and the possibility of inducement, but that was not accepted. Ms Sorbello said that she was so exhausted she could not by then imagine having the energy to stand up. At one point Ms Carpinato told staff that she considered it better to take her daughter elsewhere. She was told that she was overtired and hysterical. Ms Ghamrawi left the Hospital at 10 pm, still concerned about Ms Sorbello's condition. Eventually Ms Carpinato left, late at night and walked home.
5. On 24 September Ms Carpinato returned, still concerned about the length of the labour. Ms Ghamrawi returned at 8 am, also concerned about her sister's condition. Ms Sorbello was placed on a drip after being told she required antibiotics. Ms Ghamrawi remembered Ms Sorbello asking again for a caesarean, a request supported by her mother, but was told that it was too late. Dr Brims attended and said that she would have to deliver using stirrups. She tried to push, but eventually use of the vacuum was decided.
6. Ms Sorbello described being in excruciating pain at this stage, distressed about her unborn baby. She was given the episiotomy before Joseph was born. When Joseph was finally delivered, Ms Ghamrawi saw that the cord was wrapped around his neck and observed him not to be breathing, after taking one breath. Dr Brims moved the cord, which Mr Sultan then cut. Ms Carpinato described his colour as not being good and his head cone shaped and discoloured. Her assessment that something was wrong because the delivery took so long, proved to be correct.
7. Mr Sultan described the attention Joseph was given, when he was not breathing. Ms Sorbello described her sister and mother with their heads in their hands and Mr Sultan holding her hand, unable to say anything. They did not look at her and Joseph was removed from her chest after about two seconds. She did not know what was going on.
8. Ms Carpinato said that it was then that the room filled with people and steps were taken to deal with Joseph's condition. Ms Ghamrawi at one point counted 13 people in the room attending to Joseph. I have already explained the delay in Ms Sorbello's treatment and how those present reacted.
9. A doctor later came to tell Ms Sorbello that Joseph was really unwell and needed to be in ICU, where she went to see him, lying very still and stiff, before he was transferred to Westmead. She described herself as being in a daze. Mr Sultan described himself to be feeling sick and shocked, worried and not knowing that to do or say and still in shock when informed about the transfer. It was the next day, after speaking to Dr Brims and the midwife, that he became very angry, not knowing what to do, but feeling like throwing a chair at the doctor. He stayed angry and upset afterwards.
10. This evidence must be accepted. It was entirely plausible and not challenged in cross-examination.

What occurred after the labour

1. There was no issue as to what happened to Joseph after his birth. In her oral evidence Ms Sorbello dealt with what could be seen on a DVD which depicted what she now does to care for Joseph, now aged 6, during a typical day, when he is well and attends school. That evidence shed light not only the extent of his injuries and their current consequences, including the care which he requires as a result, but what his parents, particularly Ms Sorbello, have had to contend with since his birth and the responsibilities she has had to bear alone, since their separation. That demonstrably not only now requires considerable physical effort, but explains the emotions which she described experiencing since she has had to care for Joseph at home. He is an engaging child despite being so profoundly injured. The work involved in his care, is unarguably considerable and emotionally difficult.
2. The experts had access to this DVD, as well as other evidence, before they gave their concurrent evidence.
3. Joseph required urgent medical attention almost immediately on his birth. He was soon transferred to Westmead Children's Hospital, where he was treated in the intensive care unit. Initially it was hoped that he would develop normally, after he had some brain scans. He was discharged in October 2008. Joseph then suffered from reflux. In November, he required a hernia operation.
4. It was when he was about two months old that Ms Sorbello and Mr Sultan learned at Bankstown Hospital that he had been deprived of oxygen during his birth. Investigations ensued. Ms Sorbello initially understood that he would be similar to a premature baby, but Ms Ghamrawi noticed a reference to "HIE" on a paediatrician's report, which she identified to refer to "Hypoxic Ischemic Encephalopathy". On googling that term they learned that this could lead to mental retardation, cerebral palsy, epilepsy or delayed development, or all of these problems. Ms Ghamrawi accompanied Ms Sorbello when she asked questions about this possibility, but they were told that Joseph just had delayed development.
5. Ms Sorbello described Joseph's development during his first four months of life to have been very unsettled, with frequent screaming and arching his back. His development did not seem normal to her. She was concerned about his vision and movements, because he was not able to fix his eyes on an object and was not able to reach or hold toys. He was also unsettled at night, requiring medication and taking a long time to feed.
6. When Joseph was four months old, Ms Sorbello was informed at the Westmead Growth and Development Clinic that he had suffered damage to the basal ganglia and had been diagnosed to be suffering cerebral palsy. When she and Ms Ghamrawi asked questions, they were told his cerebral palsy was very severe and that he would never walk. Ms Sorbello said that she felt dazed, but had to go home to wake Mr Sultan to give him the news. She sat in distress, wondering what to do for about two hours, before she woke him. Mr Sultan's evidence was that he was devastated, having thought until then that Joseph's problems were not serious. Ms Sorbello said that she felt "stressed and worried, if not panicked, about what this meant for him, for me, for all of us".
7. It was then that Ms Sorbello and Mr Sultan realised that Joseph would not develop slowly like a premature baby, but had problems which would be permanent. Mr Sultan said that he then did not know how he was going to handle living with a child with Joseph's problems.
8. Ms Carpinato's garage was converted into a bedroom and lounge room for Ms Sorbello, Mr Sultan and Joseph to live.
9. Assistance was provided to them with at home visits from the Cerebral Palsy Alliance, when Joseph was aged six months. Ms Sorbello was taught how to do stretching, passive movement and bicycle motions with Joseph and how to encourage him to grab toys and sit. She described how she integrated these movements into his care. She also tried Bowen Therapy at Yagoona, where massage helped Joseph relax fully. This treatment ceased because of expense.
10. Joseph came under the care of Dr Bye, a paediatric neurologist at Sydney Children's Hospital Randwick; Dr James, a paediatrician; and Dr Kyriagis, a paediatric rehabilitation specialist, and continued therapy with the Cerebral Palsy Alliance, which provided splints, standing frames and therapy equipment which Joseph needed. Joseph was unable to roll, sit or push himself, to reach or grab toys and was slow to put on weight. He also required a lot of therapy around eating. Ms Sorbello described the trouble she had in putting him into car seats for his appointments.
11. At age one Joseph could still not roll or stand. He could reach toys, but not transfer hands and could sit unsupported, only for a very short time. He dribbled to the point of choking and saw a speech pathologist for his problems, including with swallowing.
12. It was in October 2009 that Joseph began suffering seizures, multiple times an hour. Mr Sultan said that he had never seen a seizure before and found the experience terrifying. He then realized that Joseph would never be normal and he was devastated. It was then that he started sleeping on the couch and hating his life.
13. Ms Sorbello described then feeling anxious and fearful the whole time. Joseph was admitted to Bankstown Hospital, where he was transferred by ambulance, causing Ms Sorbello, Mr Sultan and Ms Carpinato's distress. He was also admitted at Sydney Children's Hospital and on one occasion at Canterbury Hospital.
14. Joseph was prescribed glasses, but it was difficult to make him wear them. He had splints to assist with the spasticity in his hands. At 19 months he was attempting to stand, but could not sit independently. He also developed an upsetting problem with constipation.
15. Up to age two, Ms Sorbello still had to give Joseph medication at night, as well as feeding and comforting and settling him. He did not tolerate the bath well and had to be showered. Joseph was given a home exercise program of assisted play and positioning, to help mobility. He then had swimming therapy, Bowen Therapy, attended the cerebral palsy clinic at Sydney Children's Hospital every three to six months and continued occupational therapy. In early 2010 Joseph had more seizures and was again taken to Bankstown Hospital.
16. Joseph was still sleeping with Ms Sorbello and Mr Sultan slept on the lounge. Their relationship deteriorated. Joseph's routine of doctors' appointments and therapy continued. Ms Carpinato described the good relationship which she had had with Mr Sultan. She became aware, however, of the problems that he and Ms Sorbello were having. She said that Ms Sorbello had been a happy person, but by then no longer laughed or joked as much and started "biting [her] head off, for no reason". Mr Sultan was at home infrequently and she heard them scream and argue, before he told her he was leaving and not coming back.
17. Ms Sorbello said that before their separation she and Mr Sultan had been yelling at each other, she said "over everything in life". He generally slept at home after his night shift and became frustrated and angry when he was woken, if Joseph cried. Over time they grew apart. On a handful of occasions Mr Sultan had yelled at Joseph, more in frustration, she said, than anger. On at least one occasion she had to tell him not to yell. They became distant and she said, she went into "robot mode".
18. Mr Sultan said that he had been able to keep up his working hours after Joseph's birth, but that he later began having problems at home and at work. On night shift he spent hours alone, thinking about what had happened and how they should have been different. He worked longer hours in order to avoid going home and facing his problems, but he was being sent home from work and was feeling more and more irritated. He had earlier been promoted to the point where he was supervising 50 guards, but had no more promotions after Joseph's birth.
19. In January 2011 Mr Sultan and Ms Sorbello separated. They later divorced. Ms Sorbello's evidence was that she had been hurt by Mr Sultan's departure and upset when he had entered another relationship, but she said, "I turned into another mode very quickly. Like, my mode just turned into robot mode, that I can't let those emotions get to me. My concentration was just solely Joseph at that stage too."
20. Initially, Mr Sultan maintained contact with Joseph every second weekend, but that stopped in about August 2011. Mr Sultan had before then formed a relationship at work with his current wife. He said that he found Joseph difficult to look after. He felt that he did not know how, because Joseph had so many medical problems and he was fearful that something would go wrong when Joseph was with him. He was also fearful of being blamed, if something did go wrong. While he later came to regret decisions he had made, he did not know how to cope with the situation. In December 2011, Mr Sultan lost his job. In June 2012 he went on Centrelink benefits.
21. It was in December 2012 that Mr Sultan remarried. He and his wife live with her parents. Neither of them work and they argue over having children, which Mr Sultan does not want. On one occasion in 2015 he became so angry that he punched a brick wall and required surgery to his hand. His wife suffers from ADHD and he has applied to become her carer.
22. After Mr Sultan left, Ms Carpinato was helping Ms Sorbello with cooking and washing, because she was tired and not coping well. She loved Joseph but would often seem to be very down and sad. Ms Ghamrawi described how Ms Sorbello had changed, making excuses for not going out with Joseph; worrying about what would happen if he vomited, or had a seizure; putting off jobs like painting the kitchen, even when she offered her help. She explained how devoted Ms Sorbello was to Joseph, but said that she put up a front and was always stressed about him.
23. At age three Joseph started saying a few words, but still needed Ms Sorbello's attention at night, for medication. Between ages three and five Joseph's seizures continued, sometimes being controlled. He began kindergarten at Padstow, two short days a week. That stopped when he required a nasogastric tube to be inserted at age four in 2012, when he was diagnosed to be suffering a swallowing disorder. In October 2012 he had a PEG tube inserted into his stomach for feeding. He was then on a wait list for therapy at the Cerebral Palsy Alliance. He had, however, started some communication with eye gaze and Ms Sorbello began to be able to tell what he needed, from his movements and gestures.
24. At his second preschool at Roselands, Joseph was on a wait list for a wheelchair. Ms Sorbello was using a Big W pram, but had problems seating him, so that he was comfortable. He was then being treated for constipation and his increased dribbling. In January 2013 he had eye surgery to correct strabismus. He had more home therapy with a standing frame. His sleeping had improved, but he still required attention at night.
25. In April 2013, Ms Sorbello met Mr Greenfield, who she married in June. She said that he had a connection with Joseph and was a great help in looking after him. They moved to a Department of Housing home together, but the relationship broke down. He wanted children, which Ms Sorbello is also fearful of. He also had medical issues and an addiction to prescribed drugs, which led to separations, with the result that they are now no longer in contact and Ms Sorbello is pursuing a divorce.
26. In 2014, Joseph started school, but has to have a lot of time off, because of illness. A respite worker also occasionally comes to the home, which gives Ms Sorbello a break, but she remains in her room, because she does not know this worker well enough to entrust Joseph to her care. In March 2015 he was admitted to hospital suffering pneumonia.

Damages - Ms Sorbello

1. Under s 5E of the Civil Liability Act, the onus falls on the plaintiffs to prove, on the balance of probabilities, any fact relevant to the issue of causation. As to the assessment of damages s 5D requires: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

What psychiatric conditions does Ms Sorbello suffer?

1. There is no issue that Ms Sorbello suffers a depressive condition as the result of the Hospital's negligence. It is its nature and whether she has in the past had the capacity to work, despite her psychiatric condition and will in the future be able to so, which were in issue, as was the quantification of her non-economic loss.

The experts' evidence

1. It is convenient at this point to refer to the expert evidence. Dr Allnutt and Dr Brown agreed in the joint report that Ms Sorbello suffers a persistent depressive disorder. The evidence also establishes that the nature of that condition was more serious than Dr Brown assessed, or the Health Network conceded in these proceedings.
2. In resolving the dispute as to the nature of Ms Sorbello's conduct, it is relevant to consider that in the first two years of Joseph's life Ms Sorbello had Mr Sultan's support in providing the care which he required, albeit with the increasing difficulty, which both she and he described. After their separation Ms Sorbello had for a time the support of her second husband. She also has had the support of her family, described in the evidence which she, her mother and sister gave.
3. When Dr Brown saw her in August 2012 and 2013, she did not elicit a significant history of either generalised, or anxiety-type complaints from Ms Sorbello, so that there was not an additional diagnosis of anxiety disorder, in Dr Brown's view. Dr Allnutt considered that associated with her depression, she had intermittent panic attacks. Ms Luca, a psychiatrist, did not consider it her role to provide a diagnosis, but when she saw Ms Sorbello in March 2015, she found that Ms Sorbello presented with several symptoms of severe depression and associated anxiety.
4. In Dr Brown's September 2012 report she diagnosed Ms Sorbello then to be suffering a mild adjustment disorder with depressed mood, which she considered to be only just "above that which would be expected in response to the chronic stressor of raising a severely disabled child, particularly in the aftermath of the marital breakdown". I am satisfied that her condition was more serious than this.
5. Ms Sorbello's delayed awareness of concerns about Joseph's condition were identified by Dr Brown perhaps to have resulted from her fatigue after lengthy labour, feelings of denial, or his uncertain prognosis, but her reaction of emotional shock to his diagnosis of cerebral palsy was considered to have been an expected one. Dr Brown considered that Ms Sorbello demonstrated resilience in her approach to his care, especially when she had to raise him as a single parent. She also considered that Ms Sorbello's anxieties and concerns about his future were within the realm of a normal level of worry, given her predicament.
6. Dr Brown concluded, however, that given Ms Sorbello's highly preserved functioning in daily life, including an absence of a marked level of social withdrawal, despite the sense of isolation she described; her persistent hours of reduced sleep, unrelated to Joseph's care; her fluctuating feelings of impaired motivation and a sense of having to push herself to complete daily activities; her impaired concentration and memory functioning and elevated feelings of irritability and anger, were such as to permit a diagnosis of low levels of adjustment disorder.
7. In Dr Brown's May 2014 report, she considered Dr Klug's diagnosis of chronic adjustment disorder with mixed anxiety and depression. Dr Klug had seen Ms Sorbello in January 2014. Dr Brown did not again then examine Ms Sorbello, but she did not agree with the likelihood of any deterioration in her condition over time, given the devoted care to Joseph she had noted in her 2012 report and Ms Sorbello's good level of involvement in daily activities, despite reported avoidance of leaving home and reduced socialisation, partly related to logistical factors.
8. Dr Brown saw Ms Sorbello again in August 2014, after Joseph began school. In her third report she noted that Ms Sorbello had not had much time to pursue her own interests, but hoped to pursue some type of studies; that she described feeling very lethargic, not sleeping well, with worry and excessive focus on Joseph during the day, including as to his long term future; being very unmotivated, with the result that she lazed around all day and that if she went out in the morning, was keen to come home and had to push to get things done; that she felt irritable, screaming and throwing things, but did not get angry with Joseph and remained very polite in public and when dealing with strangers.
9. Ms Luca saw Ms Sorbello twice, before providing her March 2015 report. She was instructed with the reports of Dr Brown and Dr Klug, noting their diagnoses and conclusions. Ms Luca described Ms Sorbello's then symptoms of generalised anxiety, depressed mood, disrupted sleep, reduced social activities, poor self-esteem and sense of grief and loss in considerable detail. In her view there was a potential of deterioration of her mental state due to the chronic, complex nature of Joseph's disabilities and medical issues, but there was potential for improvement in her symptoms of anxiety and depression, if she was able to access regular long term therapy.
10. Dr Allnutt saw Ms Sorbello in December 2015. He was instructed with the reports of Dr Brown, Dr Klug and Ms Luca, amongst other materials. Dr Allnutt considered both her ongoing difficulties with concentration, distraction, irritability, short tiredness, tiredness, reduced motivation and loss of confidence and their impact in a workplace, together with her demonstrated capacity to provide ongoing 24 hour care for Joseph, which suggested that she maintained her cognitive capacity to apply herself to tasks. Dr Allnutt found that she manifested a "constellation of depressive and anxiety symptoms" identified to be depressive, with the emergence of symptoms of panic attack and that she required treatment which would support her in the foreseeable future with the ongoing stressors she faced, with care for Joseph making increasing physical and emotional demands on her, as she aged.
11. In the concurrent evidence, the experts' differences were explored. Dr Allnutt considered that Ms Sorbello would continue to face ongoing and significant stressors throughout Joseph's life. While treatment could help ameliorate their consequences, it could not take those stressors away. In the result she would require supportive psychological treatment for the duration of Joseph's life. Ms Luca agreed and considered that it would be required beyond his life, given that those stressors would persist and may even be exacerbated, over time. Dr Brown, however, considered that given that Ms Sorbello was articulate and intelligent and was suffering a condition for which treatment was available, that treatment, together with having a break from her child and returning to work, so that she could develop interests and an identity outside of home, would result in a capacity to work half time within a year and returning to full-time work within a further year after that.
12. Dr Brown considered that despite Ms Sorbello's difficulties in revealing her true emotional state to other people, she had been able to provide detailed information, including about her functioning, with the result that a confident opinion on her condition could be formed. While there could be logistical difficulties in her finding suitable employment, that was a different consideration to her psychiatric capacity to work.
13. Ms Luca considered that work would be difficult for Ms Sorbello to manage, even with practical resources available to her, to provide respite from Joseph's care, given ongoing problems in interpersonal relationships, her emotional guarding and difficulty in trusting others and sometimes feeling emotionally overwhelmed, which came out in verbal aggression and irritability.
14. Dr Allnutt considered that it was relevant that Ms Sorbello not only had a persistent depressive disorder, but that she was a mother of a disabled child and considered that even if she went back to work, she might not be able to maintain it, even though she would try. On her evidence she was highly anxious and preoccupied with Joseph, feelings increased by her depression, which affected her anxiety and negative perception of things. She also did not feel well cared for by either the legal or medical systems and she felt strongly that she had to be available to her child, because she had legitimate reasons for being anxious about him.
15. Dr Brown, however, considered that Ms Sorbello had coped in a very competent way so far in providing care for her son and that this resilience was relevant to her future prognosis, which she believed was better than Dr Allnutt and Ms Luca had concluded. All the experts considered that she could benefit from treatment and despite her experiences with the medical profession, had the capacity to develop a necessary relationship of trust with the right therapist.
16. Dr Allnutt also considered that if Ms Sorbello was able to identify and engage suitable carers for Joseph in whom she had confidence, that would help alleviate her anxiety over time and assist in a return to work, but that her anxiety and distraction about him would persist. Ms Luca agreed, although she considered that Ms Sorbello would always consider herself to be his significant carer and would be worrying about him, while he was in the care of the others. Dr Brown considered Ms Sorbello having been able to separate from Joseph while he attended school to be relevant and that while it could take some time to develop trust in other carers, it was possible that she could do so.
17. Dr Allnutt considered Ms Sorbello's depressive dysthymia was a fluctuating condition and that while treatment might help her in the shorter medium term, it was likely that when Joseph suffered another seizure or other serious health issue, that could end any therapeutic endeavour at a return to work. Ms Luca considered that there would then be ongoing symptoms and problems. Dr Brown agreed that Joseph's deteriorations could place further strain on Ms Sorbello, but considered that work could be a protective factor for her in the long term. Her caring for a disabled child like Joseph would, however, require a supportive employer and appropriate work, that allowed her some flexibility.
18. Ms Luca considered that such work could be helpful, but it was risky, in that failure at work, like her failed attempt at study, could be yet another adverse impact on her self-esteem. Dr Allnutt considered that work could provide a sense of mastery, improve self-esteem and bring Ms Sorbello into a wider social context, but if she did not want to work, because of her responsibility to her disabled child, it might be an aggravating factor, rather than protective. He also considered that in Ms Sorbello's circumstances work could be another stressor. Dr Brown agreed, but still considered it worth trying and likely to be more beneficial than an antidepressant.

Conclusion

1. These competing views must be considered in light of the evidence received in these proceedings. Having considered that evidence, I consider that Ms Sorbello's undoubted, relentless pursuit of the care her son required, even at the cost of her own health and well being, and her reserve and explained difficulty in revealing her feelings to others, led Dr Brown to an underappreciation of the magnitude of the injury which she has had to contend with since suffering the shock which Dr Brown accepted she suffered, when she first came to appreciate the nature of Joseph's injuries and the consequences which they would have for him, her and Mr Sultan. I am satisfied that the impact upon Ms Sorbello of this and the ongoing stressors to which she has since been subjected resulted in a more serious psychiatric injury than Dr Brown diagnosed.
2. I also do not accept that what precluded Ms Sorbello's return to work at the end of her maternity leave was a matter of choice, as the Health Network finally submitted. There were unquestionably other factors which also precluded her return to work, which are not compensable. Still, they cannot be ignored in understanding the impact of the psychiatric injury under which she has been labouring. Her circumstances were not such as to have facilitated her recovery from her psychiatric injury in the past, but Ms Sorbello properly accepts that Joseph's settlement will, in future, provide her with assistance, which may help her recover her health. That does not permit the conclusion as to the nature of her psychiatric injury which the Health Network argued to be accepted. These conclusions rest on the other evidence received at the hearing, which I will now discuss.

The other evidence

1. Ms Sorbello was in these proceedings required by her oath to give evidence in a way that her examination by the doctors she has seen did not require. Her evidence as to her difficulty in revealing the extent of her problems; that she does not choose to feel as she explained that she does; and that not going to work is not a choice which she makes, I am satisfied must be accepted.
2. I have earlier outlined what happened after Joseph's birth. There was also evidence of what Ms Sorbello was able to do, particularly after Joseph started school in 2015, after she had satisfied herself that he was in the care of people in whom she could have necessary confidence. That was required because he is a young child who must, even more than other children, depend on others, including when faced with life threatening developments.
3. As I said, even Dr Brown considered that Ms Sorbello had received a very considerable shock when first she learned of the extent of Joseph's disabilities and their consequences, when he was aged about four months. She has been subjected to an ongoing series of stressors ever since, as the result of his condition. Ms Sorbello's evidence about these events must be accepted.
4. It was common ground that since then Joseph has increasingly faced life threatening conditions, which repeatedly put him at risk of aspiration, pneumonia and untimely death, which may result before or after the 36-year life span which the experts agreed that he is likely to have. Understandably, this has been and will continue to be a cause of very considerable ongoing and at intermittent times, heightened stress for Ms Sorbello, not conducive to ready recovery from her initial shock and the depressive illness which it resulted in.
5. The evidence established that the other ongoing consequences of the injuries Joseph sustained at birth, which have led not only to his need for constant care, but also numerous hospital admissions, included for Ms Sorbello and anyone else responsible for his care, the need to have constant concern and pay constant attention to circumstances which can arise quickly, which require that he receive immediate medical attention. As a result, Ms Sorbello has needed to be vigilant, including at night, as to his needs, with the further result that she is physically tired from the care which Joseph continually requires. That, too, has impeded her recovery for her psychiatric condition.
6. Ms Sorbello described in her evidence how she had come to accept Joseph's need to attend school and the steps she had pursued, to satisfy herself that he was being properly cared for, by those into whose hands she placed his care, both in transporting him to school and while at school. That was consistent with the steps she had earlier pursued, to have him attend preschool and her consent to Mr Sultan having access to his son.
7. The result of these steps would appear to have been to give Ms Sorbello the opportunity at times, to engage in activities, both social and work based, not entirely focussed on Joseph and to help her recover her own psychological health.
8. What seems to be quite out of character, however, is Ms Sorbello's description of how she spends her time, particularly now when Joseph is at school. That stands in marked contrast both to her employment record before his birth and her dedicated attention to Joseph's needs since.
9. I am satisfied that this evidence sheds considerable light on the nature and extent of the psychiatric condition which Ms Sorbello suffers, which, contrary to the Health Network's case, did not permit her to work, even if she wanted to, as was her evidence.
10. After Joseph started school Ms Sorbello did not take the opportunity to pursue work. She did attempt, but failed at a TAFE course, which would have helped her pursue such work. Since then she has not pursued either further study or work. Nor does she actively pursue the opportunities which she now has for social interaction, while Joseph is at school. Ms Ghamrawi's evidence particularly corroborated this.
11. In her oral evidence, Ms Sorbello described how she avoids those opportunities and instead spends her time, often alone, doing very little other than using her phone, in the ways she described. This, I am satisfied is not the result of either indolence, or free choice, but of her illness.
12. At times, Ms Sorbello does not leave the house due to the anxiety she described, to do the shopping, for example, even when she does not have to take Joseph with her. She described becoming anxious being around people and crowds. She also said that she was not very good with emotions and "letting it out" and found it hard to express herself to people sometimes.
13. In cross-examination, Ms Sorbello also explained her diminished concentration span, despite huge to-do lists; feelings of anxiety and self-doubt, even at the thought of starting another course of study, or pursuing job interviews; her anxiety at the thought of the effect of medication she might be prescribed, given the care Joseph requires; and her concern as to her ability even to perform tasks which she performs for Joseph, for somebody else, given her concern that she would not be a useful employee. That, she explained, was because of her constant concern that she might be called on to attend to Joseph, if he needs her care. Ms Sorbello also said that while her need to care for Joseph was a big part of what had stopped her from working, it was also her internal feelings and self-doubt, which had contributed.
14. In re-examination, Ms Sorbello explained that she had come to understand how serious things could quickly become when Joseph becomes sick, with the result the care she takes to ensure that he does not become sick and the anxiety she experiences when he does, when things are out of her hands. She said that over time he had become sick more frequently. Recently when she had taken him to the doctor when he had developed flu-like symptoms, he was admitted to hospital with a chest infection, aspiration and pneumonia and she had been asked whether she wanted resuscitation to be attempted, if he required it when put on life support. This had highlighted to her how serious his situation really was, how quickly it could happen and the decisions which she then might be called upon to make.
15. Ms Sorbello's evidence was that even so, she expected that the settlement of Joseph's proceedings would take a lot of the burden away from her in relation to financial hardship, needing things and not having to beg for things. But she did not expect that the psychological struggle that she had to go through every day, would go away. She accepted that resolution of these proceedings would also help her. She said that she would like to return to work and was prepared to pursue medication and other treatment and hoped that they might help her. She did not, however, expect that they would take everything away, but accepted that it would help with her anxiousness. She also said that she would accept a recommendation that she attempt to return to work, but her view was that she will not be able to manage it, given her concerns for Joseph and that being distracted with such concerns would not make her employable.
16. These, it must be accepted, are not only rational concerns, but are consistent with the consequences which Joseph's injuries have had on Ms Sorbello's health. They do not evidence that her current situation is simply the result of a choice which she has made, as the Health Network argued.
17. The evidence established that the nature of Ms Sorbello's condition is more serious than the Health Network contended. In the result I am satisfied that the views of Dr Allnutt and Ms Luca as to the nature and seriousness of Ms Sorbello's illness must be preferred over those of Dr Brown.

Non-economic loss

1. "Non-economic loss" is defined in s 3 of the Civil Liability Act to mean: "(a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement."
2. Ms Sorbello claimed that her non-economic loss would be quantified to be 40% and the Health Network argued that it would be 30%.
3. I am not able to accept either case.
4. I have concluded, for reasons which I have explained, that despite Ms Sorbello's stoicism and dedication to Joseph, the evidence established that the injury she suffered and its persistent consequences were more serious than the Health Network conceded. She spoke to a counsellor on a few occasions in 2012, which provided her with no assistance for the symptoms she was then experiencing. She found that she had little to say and had limited time to pursue such treatment. Since Joseph started school, her ability to utilise her time in a productive way, even when not required to care for him, stands in marked comparison to her capacity before his birth, when she was able to work full time and otherwise to pursue an active life.
5. Her current situation, I am satisfied, is reflective of the distressing symptoms of her illness which Ms Sorbello described having experienced since she came to understand the real extent of Joseph's injury. Even with treatment she is likely to have to continue contending with such symptoms, albeit on the expert evidence, over time to a considerably lesser degree. Nevertheless, given Joseph's likely circumstances and their continuing effect upon her, she faces many years of life contending with these difficulties, during which the prospect of a complete recovery is remote.
6. In the result I have concluded that her non-economic loss must be assessed at 35%.

Approach to assessment of the impact of Ms Sorbello's injury

1. Given the nature of Joseph's condition and the fact that the Health Network did not settle Joseph's proceedings until 2016 and even then did not admit negligence and liability in Ms Sorbello's case, until the Friday before the hearing of these proceedings in May, at a time when the funds flowing from Joseph's settlement had not yet become available, that there were other factors impeding Ms Sorbello's return to work prior to the hearing, is apparent. That does not preclude Ms Sorbello form recovering damages for her undoubted injury.
2. In closing submissions it was submitted for the Health Network that the evidence showed that Ms Sorbello had dealt with her son's disabilities and the impact they had had on her life, in a very dignified way. There is no credit issue in her case. It was also submitted that she had demonstrated stoicism which, it was argued would provide her with a significant measure of protection, as she moves forward, together with the practical assistance which she will receive in future, in providing care for Joseph, as the result of the settlement of his case. These are, it must be accepted, relevant considerations.
3. It was also argued that the evidence as to the strong bond that Ms Sorbello had formed with Joseph had to be understood in the context that he now attends school daily when well, being collected by bus at 7.30 am and returning home at 3.30 pm. This was also depicted on the DVD, as was the care he received when at school. It was submitted to be relevant that Ms Sorbello had adapted to that change in her circumstances, developing trust in those who then cared for him, as she had described in her evidence. I accept that submission.
4. That there would still in future be occasions when Ms Sorbello had to attend to Joseph during the day, or admitted to hospital for treatment, when he was unwell, was accepted but still, it was argued, it would be concluded that in future Ms Sorbello would be able to work part time, at least. Even in the past, it was submitted, it was as the result of a choice on Ms Sorbello's part, not because of the consequences of her psychiatric condition, that she had not resumed work. For reasons which follow, I am unable to accept those submissions.
5. In Rabay & Anor v Bristow [2005] NSWCA 199 it was observed: "[73] Compensation for loss of earning capacity is awarded because the diminution in an injured plaintiff's earning capacity 'is or may be productive of financial loss': Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed (Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412) but, conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she 'is not incapacitated from performing'. It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: H Luntz, Assessment of Damages for Personal Injury and Death (4th Ed) at 118 [1.9.20]. [74] The primary judge was entitled to take into consideration the fact that the respondent had an employment history which demonstrated a consistent pattern of full time employment in work which might fairly be described as having been of a heavy manual nature: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 143 per Gleeson CJ, Gummow, Kirby and Hayne JJ. … [79] The assessment of damages for future economic loss involves reference to future or hypothetical events. It was described as 'the process of estimation of possibility' in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643 per Deane, Gaudron and Gummow JJ. This is, as Santow JA has pointed out, 'necessarily an imprecise matter of estimation, carried out within broad parameters …': Donald v McKeown [2004] NSWCA 285 at [38]."
6. Assessment of Ms Sorbello's economic loss must be approached in this way.

Past economic loss

1. The evidence I have discussed establishes that but for the Hospital's admitted negligence and the injury which Ms Sorbello suffered as a result, she would have returned to her past full-time employment at the conclusion of her maternity leave.
2. The evidence also establishes that Ms Sorbello's injury has adversely affected her earning capacity, both in the past and at present. The consequences of that as yet untreated injury has also, to this point, prevented her from working, as I have explained.
3. Ms Sorbello's inability to work was not, as the Health Network argued, as the result of a choice made by Ms Sorbello after Joseph's birth to "make her son her life". Nor has she been in the position of others who suffer from depression, but who are, nevertheless, able to work.
4. Ms Sorbello has not worked, partly, because of the consequences of her psychiatric injury, which materialised after she received information as to the nature and extent of Joseph's disabilities and she came to appreciate their impact upon him, her and Mr Sultan. Those consequences have been exacerbated by the ongoing stressors to which she has since repeatedly been subjected, as the result of Joseph's disabilities and their consequences.
5. Notwithstanding that Ms Sorbello has no doubt had better and worse days over that time and that she has been able to find happiness in having Joseph as her son, the consequences of her psychiatric injury up until the time of the hearing have been such as to have precluded her from paid employment, irrespective of the fact that her need to care for Joseph has also had that result.
6. Given the symptoms Ms Sorbello described presently experiencing, I am not able to conclude that she is presently able to exploit any earning capacity which she now has, even if I had come to a different conclusion. It is also relevant that the Health Network led no evidence from which it could have been concluded that there were jobs open to Ms Sorbello, which would have permitted her to exploit any residual earning capacity which she might have acquired over the course of time to this point, given what her psychiatric injury permitted her to do.
7. Nevertheless, assessment of Ms Sorbello's damages for the past must have regard to the fact that Ms Sorbello did not intend to pursue paid employment for 12 months after Joseph's birth.
8. Otherwise, the calculation of this head of damage must pay attention to Ms Sorbello's earnings in her employment at Electrolux, prior to Joseph's birth. The parties agreed that they would be able to undertake the necessary calculations, once conclusions had been reached as to the matters over which they had joined issue.

Future economic loss

1. Section 13 of the Civil Liability Act provides: "13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
2. There was no issue that but for her injuries, Ms Sorbello would have returned to her former employment and continued pursuing work of that kind.
3. On the expert evidence, with treatment and support Ms Sorbello could probably work part time, but there are practical issues which limit her return to work. They were identified by Dr Brown to be Joseph's need for care and the difficulty of finding suitable employment; by Dr Allnutt her anxiety and distraction, interpersonal irritability, reduced motivation and energy, as a result of her depressive symptoms; and by Ms Luca as all of these symptoms and concerns and more.
4. I am satisfied that the evidence establishes that with changes likely to follow the settlement of Joseph's case, which will permit his care to be provided in the future with assistance of carers in whom Ms Sorbello has necessary confidence, as she presently has in those who take him to school and care for him there and with the treatment Ms Sorbello requires, she is likely, at some point, to be able to work part time. That is unlikely, however, to materialise for a further 18 months. On the evidence I have discussed, I assess that capacity then and into her future to be at no more than 50%.
5. On her evidence, Ms Sorbello intends to pursue the treatment she accepts that she needs, in order to ensure that she is able to continue caring for Joseph, in the demanding years ahead of her. Of itself, such work may be of positive assistance to her psychological condition.
6. Given Joseph's agreed life expectancy, those years will represent almost the entirety of the rest of Ms Sorbello's working life, although it is possible that he will live for a somewhat shorter, or longer time. Throughout that time she will continue to being subjected to considerable stressors, which will have ongoing impact upon her psychiatric condition and her capacity to work, as will his death.
7. That is why, in order to exploit her earning capacity, Ms Sorbello will require employment with a sympathetic employer, in a flexible position, on a part-time basis, notwithstanding her demonstrated intelligence, admirable resilience and adaptability. One result of her psychiatric condition is that she will in future have an ongoing need, at times, to be available to respond to the distressing events which Joseph and she will undoubted have to endure, given the state of his health and disabilities. Employment in a position which could not accommodate this need, would be an additional stressor, likely not only to bring the employment to an end, but to exacerbate Ms Sorbello's psychological condition. Even employment with a sympathetic employer which led to circumstances where Ms Sorbello could not respond to Joseph's needs in a timely way, is likely to exacerbate her condition.
8. The Health Network led no evidence which established that there are any jobs open to Ms Sorbello, which could accommodate these needs. As was Dr Brown's evidence, such work would be hard to find. It contended, however, that in determining this head of damages, the approach discussed in Malec v Hutton [1990] HCA 20; (1990) 169 CLR 638 had to be followed, as explained by Heydon J in State of NSW v Moss [2000] NSWCA 133 at [71].
9. In the result, it contended that Ms Sorbello's pre-injury earnings per week would be found and because of the uncertainty as to her future, there would be a discount for imponderables.
10. For Ms Sorbello it was contended that it was not open to conclude on the evidence that she would ever have the opportunity to exploit her future earning capacity, given the vicissitudes to which it would be subject, including Joseph's frequent ill health and increasing hospitalisation in the years ahead, and the consequences which those events were likely to have on her own health.
11. In Nominal Defendant v Livaja [2011] NSWCA 121 it was observed at [65]: " ... Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation ...".
12. The nature of such an assessment was considered in Mead v Kerney [2012] NSWCA 215, another case where the defendant led no evidence as to the availability of jobs which would meet the injured person's limited capacity. In the result it was concluded at [34]: "… His theoretical residual earning capacity was thus of no value to him in this period. Without evidence that the respondent's condition will improve or be accommodated by future employment markets, it cannot be concluded that his theoretical residual earning capacity will be of any use to him in the future. As observed in the State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [64] and [71], Kallouf at [80] and Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [24], evidence of the position between an accident and trial may be a good indicator of current and future earning potential."
13. Here, on the evidence, Ms Sorbello has a theoretical residual earning capacity, but there was no evidence that any jobs were available to her, which would permit her to exploit that capacity. It is for a defendant to identify "practical job opportunities that were available to the respondent in the past of which he failed to avail himself, or any such opportunities that might arise in the future" (Mead at [37]). The Health Network has not done so.
14. With treatment, Ms Sorbello in future may be able to perform work of the kind that she performed before Joseph's birth, or she may be capable of working for others, doing what she does at home for Joseph. In the absence of evidence that such work will be practically available to her, given the difficulties of which Dr Brown spoke, it cannot be concluded that there will be jobs available to Ms Sorbello in the future, which would permit her to exploit the earning capacity she may recover.
15. The submission that all that is required for an assessment of Ms Sorbello's future economic loss is "general knowledge acquired in the ordinary course of life, that there are people who clean houses for a living; there are people who work part time in low level administration positions", may not be accepted. Even if it were, such general knowledge suggests that it is unlikely that Ms Sorbello could find a job which would accommodate her peculiar needs.
16. The authorities discussed in Mead v Kerney are not concerned with whether a particular level job with a particular rate of pay which Ms Sorbello could perform exists in the workforce. Rather, they are concerned with whether it can be concluded on the evidence, given her limitations, that employment of the kind suitable for her, is likely to be practically available her in the future. The defendant led no evidence about such matters and there is no other evidentiary basis for any finding that in future suitable employment will be available to her.
17. In the result, Ms Sorbello's future economic loss must be assessed on the basis that she will not be able to expend any residual earning capacity before retirement age, as was her case.

Treatment expenses

1. Given the conclusions I have reached, these should be calculated in accordance with the views expressed by Dr Allnutt, other than as to the costs of medication, which should be assessed in accordance with Dr Brown's oral evidence.

Other claims

1. The parties' position was that they would be able to calculate Ms Sorbello's damages, including as to the heads of damage about which there was no dispute, after judgment was given.

Damages - Mr Sultan

1. Whether Mr Sultan has suffered any injury and is entitled to any damages, is in issue.
2. The Health Network's case was that Mr Sultan suffered no injury as the result of its admitted negligence and that it would be accepted that Mr Sultan had pursued a cynical, belated attempt to profit from his son's misfortune. In the result, it contended, his case must be dismissed, his evidence being but a tissue of lies, not reflective of established facts.

Does Mr Sultan suffer a psychiatric disorder?

1. In the joint report, the experts agreed that Joseph's birth caused and/or contributed to Mr Sultan's psychiatric condition, subject to the reservation as to the accuracy of the histories he has given.
2. Dr Brown considered the apparent worsening of Mr Sultan's condition after he left his family to be atypical to the depressive symptoms he exhibited, particularly given that he was no longer involved in Joseph's care and that this might reflect symptom exaggeration and/or fabrication. Dr Allnutt considered that such deterioration could occur in people with chronic mental conditions, he being of the view that in Mr Sultan's case it was difficult to distinguish between a primary post-traumatic stress disorder with secondary depressive summons, or the reverse. He considered that when there is an ongoing stressor, such as that to which Mr Sultan had been subjected, avoidance of associated stressors was a common symptom of PTSD, which accounted for Mr Sultan's avoidance of Joseph.
3. In the result there is an issue as to Mr Sultan's credit and whether he has fabricated, or exaggerated what he described experiencing, in the histories and evidence which he gave. That, in part, arose from Dr Brown's initial observations and in part from his own evidence.
4. In 2012, Dr Brown had not diagnosed Mr Sultan to be suffering a recognisable psychiatric disorder, but considered that he was having a normal adjustment reaction to issues surrounding Joseph's birth and disabilities, although she considered that "it is possible that Mr Sultan has developed a mild Adjustment Disorder with mixed emotional symptoms". This was after Mr Sultan had left his family in January 2011, had later formed a new relationship and had lost his job in December 2011.
5. The concerns Dr Brown expressed in her first report about the histories Mr Sultan had given her were in this context: "Because Mr Sultan has not attended counselling and has apparently not reported psychological symptoms to a doctor, there may not be any corroboration for his account of developing these various complaints of emotional distress since Joseph's diagnosis with cerebral palsy. On this basis, any diagnosis of a psychiatric disorder is dependent on Mr Sultan's reliability as a historian. Based on him not being a psychologically minded man, who has difficulty in articulating his emotional state, the frequency, pervasiveness and severity of Mr Sultan's various psychological complaints were difficult to quantify. Moreover, an Adjustment Disorder diagnosis is, as outlined by in the DSM-IV TR guidelines, is only provided if an individual's emotional reactions are considered to be in excess of what might be expected-for a particular life stressor. In Mr Sultan's particular situation, a high level of emotional distress would be expected in the context of him initially coming to terms with his son's diagnosis of cerebral palsy and in relation to viewing his delayed development. If Mr Sultan has developed a mild Adjustment Disorder with mixed emotional symptomatology, it has only just reached diagnostic levels. One other factor which has limited a more confident than not opinion being provided is the possibility that Mr Sultan has emphasised his symptoms, despite areas of maintained functioning, as part of involvement in the legal claim. His capacity to work long hours in his security guard role up until conflicts arose at work, his capacity to form a new intimate relationship and establish cordial relationships with his partner's family are consistent with preserved functioning in a number of important areas of day to day life and are less consistent with the development of a psychiatric disorder."
6. The emotional distress to which Dr Brown referred, she had identified to be Mr Sultan's account of having become very angry and fearful that he might become physically aggressive on being informed that his son's birth could have been managed differently, not complicated by any violent behaviour; his hopefulness up to Joseph being aged 3 months, when cerebral palsy was investigated; Mr Sultan feeling emotionally devastated by the diagnosis, but trying to accept the reality of his son's disabilities; his difficulties in establishing an emotional connection with Joseph; his frequent worry about Joseph's condition; his progressive disengagement from Joseph after the marital breakdown; the disapproval of Ms Sorbello's family; his new fiancée's family home not being suitable for a child. She considered these not to be a full explanation for his limited contact, which she thought might reflect his difficulties in confronting his son's disabilities, he not having nightmares relating to the birth, and only having had only three dreams about the possibility of him dying.
7. In September 2014, when she reassessed him, Dr Brown observed that if the history which Mr Sultan then gave was accurate, he had undergone a significant deterioration, despite not having had contact with Joseph, or being required to rise to the demands of his care. She then noted his report of feelings of guilt, which she considered could give rise to feelings of anxiety and depression, but Dr Brown considered that the high level of intensity he then reported to be "well above that which would be expected, particular without him being regularly confronted by the reality of his son's disabilities".
8. Dr Brown could at that time not exclude exaggeration on his part, given that what Mr Sultan reported appeared to be out of proportion, even considering the stressor of Joseph's disabilities. She considered that even if involved in his daily care, he would not be expected to be accruing the type of symptoms and functional incapacity which he then reported. She also considered it to be possible that his lack of involvement in Joseph's life had more to do with aspects of his personality style, than with an actual psychiatric disorder.
9. Dr Brown described the anxieties Mr Sultan reported about Joseph's future health and development and his financial problems related to unemployment; weight gain; persistent reduction in sleep; experiencing differing psychological symptoms such as sadness, anger in a fluctuating fashion, interspersed with better days; having considered suicide on occasion, but no attempted self harm; experiencing fatigue, impaired motivation, impaired concentration and mild forgetfulness, but maintaining a capacity to enjoy time with his new partner and his hobby of fishing.
10. Dr Allnutt examined Mr Sultan in December 2015. He considered that Mr Sultan then exhibited a "constellation of anxiety and depressive symptoms … consistent with a chronic post-traumatic stress disorder", having witnessed the extremely distressing events of the birth, with the onset of more symptoms after witnessing Joseph having a seizure. He diagnosed him to be suffering a major depressive disorder, with post-traumatic stress symptoms.
11. These views also have to be considered in light of the evidence received at the hearing, some of which I have already discussed.
12. It is apparent that while Mr Sultan, like Ms Sorbello, feels guilty about what happened during Joseph's birth, a normal reaction in the circumstances, he is also bitter and angry about what happened at the Hospital and the negligence the Health Network has accepted responsibility for. These are also understandable emotions, given the nature of the negligence the Health Network has admitted and its consequences. That Mr Sultan has these emotions is no doubt a consequence, in part, of his personality. They do not, however, preclude the possibility that he, too, suffered a psychiatric injury.
13. Mr Sultan also gave evidence of experiencing a range of other, conflicting emotions, some of them undoubtedly not admirable, as he accepted. Mr Sultan agreed in cross-examination, for example, that he had told Dr Brown that he felt that Joseph's problems had offended his manhood, but denied telling her that he kept a single photo of Joseph, who he thought looked like a serial killer, because he was strapped into a wheelchair and had saliva all over his bib. He agreed that would be an extraordinary thing for him to say. He also said that at the time that Dr Brown had examined him, he had come to feel that he just could not having anything to do with Joseph, even though initially he had begun to form a bond with him. That had deteriorated after Joseph's cerebral palsy diagnosis, to the point where he did not want to be at home, or to have anything to do with Ms Sorbello or Joseph.
14. Mr Sultan also agreed that since he left his family he felt that everyone was judging him for not having a relationship with Joseph, something he said that he blamed himself for. He also said that having had so much hope for his son, he just couldn't look at him as he got older and felt disgraced by both his son's inability to do anything with him, as well as of his own reaction. He also explained how he had lost the ability to pursue fishing as a hobby for relaxation, which for a time he had pursued every day, and the resentment he had told Dr Brown about, over having to contribute to Joseph's upkeep, when he didn't see him. He also said that he blamed himself for not seeing him and was angry at himself, as a result. He denied, however, that his decisions were all made for selfish reasons, unconnected with his mental health.
15. Again, it is the comparison between Mr Sultan's circumstances before and after Joseph's birth, which helps resolve the issues lying between the parties. That comparison, I am satisfied, precludes a conclusion that Mr Sultan has simply been fabricating all of his symptoms, or, as was submitted for the Health Network, that he had he had never told the doctors who examined him the truth.
16. There being no credit issue in relation to Ms Sorbello, considerable weight must be given to the evidence which she gave, in resolving the question of Mr Sultan's credit, her evidence corroborating as it did both parts of the histories Mr Sultan gave Dr Brown and Dr Allnutt and the evidence which he gave, as to what had occurred to him prior to their separation. Ms Ghamrawi and Ms Carpinato's evidence must be approached in a similar way, given that they were not required for cross-examination. Their evidence also corroborated aspects of the histories and evidence which Mr Sultan gave.
17. I have concluded on all of that evidence that the histories Mr Sultan gave Dr Brown and Dr Allnutt about what happened to him before he left his family in January 2011, must be accepted, with the result that the common views of Dr Allnutt and Dr Brown, that Mr Sultan did suffer a psychiatric injury after Joseph's birth, must also be accepted.
18. While Ms Sorbello experienced labour and Joseph's birth, Mr Sultan was present and had not only to observe what Ms Sorbello had to endure and how Joseph appeared when he was finally born, he then had to provide support to his wife and son. Mr Sultan's experiences included having to witness how Ms Sorbello was left unattended to bleed, while Joseph was given the urgent attention he required, after Mr Sultan had cut the cord which had been around his neck, events which not only he found very distressing. Given the corroborating evidence of Ms Ghamrawi and Ms Carpinato, there can be no doubt that these were all very emotionally disturbing events for Mr Sultan.
19. Dr Brown considered that Ms Sorbello later suffered a very considerable shock when she finally came to understand the nature and extent of Joseph's injuries and began to worry about what they meant for him, her and Mr Sultan, even though she considered that the depressive disorder which Ms Sorbello initially developed only to have been a mild one. There is no reason to think, on the evidence, that Mr Sultan did not suffer a similar shock, or that they were not both exposed to similar ongoing stressors, up until Joseph was aged two years, when they separated.
20. Ms Sorbello's evidence was that during that time they dealt with these experiences in very different ways. She devoted herself to the pursuit of the care Joseph required and Mr Sultan assisted her, in ways they both described, with him also working increased hours. His evidence that he then had considerable time to ruminate over what had happened to Joseph and the undeniable impact which Joseph's injuries had on his life, was not challenged. That evidence was consistent with the description of Mr Sultan's deteriorating mood over that time, given by Ms Sorbello, Mr Sultan and Ms Carpinato.
21. During the concurrent evidence Dr Allnutt explained that he considered that irritability and short temperedness and distress and anger over the circumstances Mr Sultan found himself in and the hate he expressed for his child and his circumstances, were symptoms of his post-traumatic stress disorder, as was his avoidance of Joseph. Symptoms of that disorder being emotional withdrawal; loss of interest in usual activities; negative appraisal of oneself, and one's future; feelings of fear shame and depression; hypervigilance; poor concentration; increased startled response; sleep disturbance; panic attacks and nightmares; and other re-experiences of trauma, such as flashbacks.
22. Dr Brown had no issue with the symptoms of the disorder, but had not diagnosed Mr Sultan to be suffering from it, even though she said that delayed onset of that syndrome did occur, although it was less common than immediate onset. She considered that the emergence of symptoms in Mr Sultan's case would have been more likely to have developed before he removed himself from the situation and began a new relationship, when she considered that it was likely that his symptoms would have begun to settle. Nevertheless, she considered that if Mr Sultan's evidence was accepted, then it would show: "That he has been troubled by shame and guilt since giving up involvement in his son's life, that it has continued to trouble him, and that he suffers from psychiatric problems. So there's an alternative explanation. The other would be that his reactions are personality based and don't actually represent a diagnosable psychiatric disorder."
23. In the result, given that I am satisfied that it cannot be concluded that Mr Sultan fabricated either the history he gave Dr Brown and Dr Allnutt, his evidence about what he experienced during and after Joseph's birth, or how they affected him adversely, prior to the time that left his family, that it must be concluded that he, too, suffered a psychiatric injury, after the extent of Joseph's disabilities became known to he and Ms Sorbello. The evidence did not establish that Mr Sultan then experienced merely distress, consistent with a normal adjustment reaction to issues related to Joseph's birth and disabilities. Rather, I am satisfied, it established that like Ms Sorbello, Mr Sultan did then suffer a psychiatric injury.
24. Given Ms Sorbello's evidence as to what care for Joseph involved and the consequences which that had on her mood and functioning, Mr Sultan's evidence as to his own fears and the stress which resulted when he had to care for Joseph, after their separation on the few occasions that he did have access to Joseph, that his problems worsened after the separation, must also be accepted. The result, finally, was that he stopped that contact completely. That was not admirable, as was his own evidence. The guilt which Mr Sultan felt over what happened to Joseph during his birth, it must also be accepted, was exacerbated by his abandonment of his child. I am not able to conclude that this was simply a choice which Mr Sultan made, unaffected by his injury.
25. Before Joseph's birth, Mr Sultan and Ms Sorbello were happily married, both working and looking forward to the birth of their son. Mr Sultan, who had left school in year 10 had worked hard and studied, advancing himself to the point where he was supervising up to 50 security guards. Neither he nor Ms Sorbello were left uninjured by what life brought them when Joseph was injured as the result of the negligence the Health Network has admitted. But for that injury it is likely that their lives would have been entirely different.
26. It was in January 2011, a little over two years after the birth, following which Mr Sultan had to sleep on the lounge, so that Ms Sorbello could give Joseph the care he required during the night, that Mr Sultan left his family, having come, he said, to experience hate and fear of his child's condition, feelings which he said after he left worsened over time. Finally they had come to make him feel like "scum" and "not a man", he explained.
27. Ms Sorbello commenced proceedings for Joseph in February 2011 and brought her proceedings in April, when Mr Sultan also commenced his proceedings. By his statement of claim he sought damages for nervous shock. The material facts which were pleaded included the labour, birth and injuries which Joseph suffered. Breach of duty to Joseph was pleaded and damages for both nervous shock and economic loss were claimed, but the latter was not then particularised, understandably, given that at that time Mr Sultan remained in employment.
28. By a statement of particulars filed in October 2014, Mr Sultan claimed damages for economic loss from the date that he had ceased employment until retirement at age 70. That date was not there specified. In Mr Sultan's May 2016 statement of loss and damage, however, the date was said to be approximately 1 December 2011. Future economic loss then clamed was for loss of earnings for at least five years into the future, taking into account loss of experience and promotional opportunities. Those were the orders finally pressed.
29. That sequence of events is not consistent with Mr Sultan cynically and belatedly seeking to profit from Joseph's injury, as was the Health Network's case. The proper inference is that initiation of the steps which resulted in the filing of his and Ms Sorbello's proceedings in April 2011, must have predated their separation and were pursued as the result of the injuries which they had each suffered beforehand.
30. It is what happened after Mr Sultan left his family which raises more difficult questions.
31. In the concurrent evidence Dr Brown said that when she saw him in 2012, apart from his lack of involvement at work, she considered that he was functioning reasonably well, having formed a new relationship, getting on well with his partner's family, planning to resume fishing, although there were some areas where he was not functioning as well, such as poor motivation for going out for a walk, social contact and a lack of employment, for which there may have been psychiatric, or non-psychiatric reasons.
32. Dr Allnutt considered that while earlier there may not have been a full post traumatic syndrome, post traumatic type symptoms emerged in 2012. Dr Allnutt explained that Mr Sultan's exact diagnosis was arguable amongst clinicians, but his avoidance of Joseph was because he found the situation too distressing to deal with. It was not a consequence of being a person not prepared to take responsibility, or because he was a bad father, but because of his lack of adjustment, that he dealt with his distress by running away from his problems.
33. Dr Brown agreed that it was possible that Mr Sultan had not resolved ambivalent feelings of having a disabled child, having had an idealised view of what a father-son relationship was going to be about and having had normal feelings of grief about that relationship, as well as ambivalent feelings of wanting to be a good father and yet hating having a disabled child. She also considered that there had been a narcissistic blow to his sense of manhood, which had to do with aspects of his personality, which had been complicated by his compensation setting, which had led to more symptoms and less functioning, as time went on.
34. Dr Allnutt agreed, explaining that was why, at least, Mr Sultan came to suffer a chronic adjustment disorder with depression and anxiety, whether or not that had been influenced by cultural factors or personal vulnerabilities. He also considered, however, that caution was needed before it was concluded that there had been later exaggeration. He accepted that this was possible, but said that it could have resulted from more candid later reporting.

Conclusion

1. On balance I have concluded that Mr Sultan has not only established that he suffered a psychiatric injury after Joseph's birth, but that he continued suffering from its effects after he left his family in January 2011. Initially, his symptoms worsened. Nevertheless, for reasons which I will explain, I also consider that over time they improved to the point where it is likely that with the pursuit of treatment and work which he now intends to pursue, that Mr Sultan will recover his health.

Non-economic loss

1. Mr Sultan also claimed non-economic loss assessed at 40%. That he had suffered such a loss was disputed and in the alternative, it was argued that the Health Network that if there had been such a loss, it should be assessed at no more than 15%.
2. The evidence establishes that Mr Sultan has suffered non-economic loss, which I assess at 20%.
3. That conclusion reflects the evidence which I have discussed, both as to the nature and extent of Mr Sultan's initial injury, consistent with his ability to continue working for the first three years of Joseph's life; his deterioration to the point where he left his family in January 2011 and ceased work in December 2011; that for some years he made no attempt to return to work; but with removal from the stressor which contact with Joseph continued to subject him to and the new relationship he formed, there was later improvement in his health, reflected by his maintenance of his work credentials and pursuit of work, despite those attempts being limited; and that with treatment he is not only likely to be able to return to full time work and the activities he used to enjoy, but is likely to recover his health, even though Joseph's condition will no doubt be a matter of ongoing stress in the future.

Past economic loss

1. I am satisfied that but for the injury which he suffered after Joseph's birth, Mr Sultan would have continued pursuing the security work in which he was then employed.
2. In the joint report Dr Brown did not consider that Mr Sultan had any incapacity to work during the first few years after Joseph's birth. Given his evidence that even though he did not file a tax return for the 2011/2012 tax year, he in fact worked up until about December 2011, that view should be accepted. No damages for economic loss in that period are in fact claimed.
3. Dr Allnutt considered Mr Sultan to be partially unfit for work, but that consideration should be given to a return to work program. Dr Brown considered that if his symptomatic report in September 2014 was accepted as accurate, he would have been able to work on a half time basis.
4. The difficulty in assessing Mr Sultan's past economic loss is the inconsistent accounts he has given about relevant matters, after he left his family in 2011 and his failure to call any corroborative evidence.
5. It was in December 2011 that Mr Sultan's employment ceased, following, on his evidence, problems at work where there were disputes over his alleged treatment of his now wife, which he considers he handled badly and involved bad decisions on his part, which he would have handled differently, but for the consequences of his injury. He described earlier not attending work on time and arguing with team members, a diminishing supervisory role and a final blow up, which brought his job to an end. He also described experiencing nightmares about three times a week, flashbacks of the birth and "zooming out" during the day, ignoring everything around him. It was after he left in January 2011 that Mr Sultan initially maintained contact with Joseph, but that ceased after the distress he described experiencing, when called on himself to care for Joseph.
6. Mr Sultan agreed that his current wife had also ceased working in 2011, having lost her job a few weeks after he lost his; that they had both applied for unemployment benefits; that he had subsequently claimed a carer's pension for her, because she suffers from ADHD and slow learning and took medication for her condition; that he felt lost when not in his wife's presence; and that she helped him when he was having a bad day. The proper inference from his failure to call evidence from his wife is that her evidence would not have assisted Mr Sultan's case that he has never recovered his capacity to work.
7. The Health Network's case was that Mr Sultan's evidence would not be accepted and that it would be concluded that he and his current wife had rather made a deliberate decision to pursue a different lifestyle, subsisting on Government employment benefits, rather than being gainfully employed. I do not accept that submission notwithstanding the Jones v Dunkel inferences which must be drawn against Mr Sultan. That seems entirely out of character with Mr Sultan's circumstances before Joseph's birth and fails to take any regard of the consequences of the injury I am satisfied that he suffered.
8. Since December 2011 and before the hearing Mr Sultan did not pursue either medical treatment, because, he said, he thought it might make him more crazy, nor counselling he was urged to pursue. Mr Sultan did attempt once, it seems, to return to work, as Mr Melham's evidence confirmed, but Mr Melham was not prepared to offer him a position, despite his positive opinion of Mr Sultan in the past, given the changes in Mr Sultan he described having observed.
9. Mr Sultan's evidence in cross-examination was that part of the reason he had not tried to pursue employment was because he felt that he would have to start from scratch again and he did not want to do that. His belief, he also said in cross examination, is that he should be employed at a senior level, because of his qualifications.
10. Mr Sultan had earlier told Dr Brown that he did not want to go backwards and take a job not equal to his qualifications and certificates. He also told Dr Brown that he would prefer to lock himself in a room and have food delivered to him, than face the outside world. He also said, however that he believed that he would be able to find work as a security guard.
11. Mr Sultan's evidence was also that he now wishes to pursue treatment, because he wishes to change his life, to become again the person he used to be. He is able to do so because he has maintained the certificates which he requires, if he were to return to work, which he now proposes to do.
12. Mr Sultan's evidence was that he also attempted unsuccessfully to pursue work in a lawn mowing business, established with his brother-in-law. Evidence could have been called from his brother-in-law about this, but it was not. The proper inference is also that his evidence would not have assisted Mr Sultan.
13. Mr Sultan has also given conflicting accounts as to what happened to that business. In these proceedings he said that he had not been able to work even one day in that business, because of the frustration that his mental condition caused him. He had earlier told Dr Brown that it had failed because of the weather and difficulty attracting customers. In cross-examination, he explained that he had not told Dr Brown the truth, because at that time he couldn't explain himself and was fighting with himself, to admit the truth.
14. Mr Sultan's oral evidence was that a week before the hearing he had been involved in a low speed car accident, when his wife was in the car. He was taken to Bankstown Hospital, he said at about 9 or 10pm, complaining of a headache. There Mr Sultan initially accepted treatment, but discharged himself against advice that he required a cardiac assessment. This behaviour was inconsistent with what he had earlier told those who had examined him, about his reluctance about going to that hospital.
15. In his oral evidence Mr Sultan gave a number of unconvincing explanations as to why it was that he initially accepted treatment there, rather than seeking it elsewhere. I am unable to accept his evidence that he had no choice but to remain at Bankstown Hospital so that his condition could be examined, given that in fact he later discharged himself at about 4 am, after he said he had become frustrated with the treatment he was receiving.
16. Mr Sultan also said that he had told the Hospital on admission that he was stressed as the parent of a disabled son, even though he was avoiding him, because, he said, during the last three months he had not had proper sleep, or been able to clear his head. He also said that "it was just eating me and eating me and eating me." He said that his family, including the sister who on Ms Sorbello's evidence, remains close to her and Joseph, continually told him he needed counselling, which he was now prepared to pursue, because he said he had decided that he needed to change his life.
17. In cross examination, Mr Sultan also said, that if he sought help and changed the way he was, he believed that he could get security work. He has not, however, to this point pursued such steps.
18. As I have said, these were all matters about which Mr Sultan's wife could also have given evidence. The inference that her evidence could not have assisted his case, must, in the circumstances be drawn. I am satisfied that Mr Sultan's evidence supports the conclusion that he has already recovered his health to a greater extent than he is prepared to admit.
19. On all of this evidence I have concluded that after he lost his employment in December 2011, Mr Sultan was experiencing significant symptoms of his injury and he was unable to work. He later regained the capacity to perform such work, however, at least part time. His failure then to pursue further employment was not caused by his psychiatric condition. That was the result of his view that he was entitled, by his past experience and qualifications, to resume the senior position he had held prior to his dismissal.
20. In the result Mr Sultan's damages for past economic loss must be assessed on the basis that as at December 2011 he was unable to work, but from the time that Dr Brown saw him again in 2014, he had the capacity to work half time and that he could then have found the security work which the certificates he has maintained qualified him to perform, had he pursued it.

Future economic loss

1. Mr Sultan's evidence that he now desires to pursue treatment and a return to work, should be accepted. Dr Allnutt considered this attitude increased the probability of future amelioration of his symptoms, which would enable him to work, as well as recover his health. Dr Brown agreed. She considered that following recommendations for treatment and counselling would lead to significant improvement for Mr Sultan, if not recovery. Dr Allnutt was less optimistic, but also considered that within a year, maybe two, he would have recovered.
2. Mr Sultan's evidence was that he had reached the point where he desires to pursue treatment and a return to work. That, together with, his limited ongoing contact with Joseph; his current happy personal circumstances; and the expert evidence all support the conclusion that he will recover to the point that he will be able to return to work full time.
3. I am satisfied that Mr Sultan's future economic loss must be assessed on the basis that he can presently work half time and that he will recover so as to be able to return to full-time security work, by 12 months from now, with such work being available to him, if he seeks it.

Treatment expenses

1. Mr Sultan's treatment expenses should also be calculated in accordance with Dr Allnutt's views, again, other than as to the costs of medication, which must be calculated in accordance with the explanation given by Dr Brown as to such costs in her oral evidence.

Other claims

1. Again, the parties agreed that when judgment was given they would calculate Mr Sultan's damages, including as to claims about which there were no issues.

Costs

1. The usual order as to costs is that costs as agreed or assessed follow the event. In each case that would be an order against the Health Network.
2. In the event that the parties wish to be heard on costs, they should approach.

Orders

1. For the reasons given, I find for Ms Sorbello and Mr Sultan. The parties should file proposed orders, including as to costs, within 28 days.

Amendments 11 October 2016 - typographical errors in [30] and [187] 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. Decision last updated: 11 October 2016