Parents Win Nervous Shock Clam for Son’s Disability Against Western Sydney Hospital

Published 07 Aug 2018

Gerard Malouf & Partners are experts in personal injury claims and have successfully represented many clients suffering from nervous shock and mental harm arising as a result of medical negligence. The recent and interesting case of Sorbello v South Western Sydney Local Health NetworkSultan v South Western Sydney Local Health Network [2016] NSWSC 863, upheld on appeal, provides insight into how the courts will assess damages/compensation for non-economic loss in nervous shock claims.

In 2008, the Plaintiff, Ms Sorbello, gave birth to her son, Joseph, in Bankstown Hospital (NSW). Due to the hospital’s negligence, Joseph suffered oxygen deprivation during his birth which resulted in cerebral palsy. Unfortunately, Joseph is severely disabled and requires full-time care for the remainder of his short life. While Ms Sorbello dedicated herself to caring for Joseph, Mr Sultan, the father, played a minimal role in his son’s life leaving the family when Joseph was aged two.

A claim made on behalf of Joseph against the hospital for professional negligence was successful. The parents of Joseph, Ms Sorbello and Mr Sultan, also started their own proceedings in the Supreme Court against the Defendant for pure mental harm, or nervous shock, as a result of its negligence. Although the Defendant admitted liability in that it owed both Plaintiffs a duty of care, that this duty was breached, and that some damage had been caused, the issue was as to how to quantify the damages as both parents had responded differently to the situation.

The psychiatrist for the Defendant argued that Ms Sorbello’s psychological injuries were “within the realm of a normal level of worry, given her predicament” and that it was unlikely that her condition would deteriorate in the future. The psychiatrist based this on the fact that Ms Sorbello had already shown great resilience and devotion to caring for Joseph and the Defendants argued that Joseph’s settlement monies would take away some of the stresses in Ms Sorbello’s life.  

Judge Schmidt disagreed with this view and the Defendant’s psychiatrist and found that Ms Sorbello’s condition could deteriorate and that although Joseph’s settlement assisted in reducing financial burdens, it would not alleviate the Plaintiff’s psychological injuries. The Judge assessed non-economic loss at 35% of a most extreme case and she was awarded $208,000.00.

Mr Sultan’s injuries were argued to be insincere by the Defendant. The fact that Mr Sultan had not sought counselling or reported his symptoms to a doctor, as well as his limited contact with Joseph, was used by the Defendant to dismiss Mr Sultan’s entitlement to damages.

However, the psychiatrist instructed for Mr Sultan was of the view that witnessing Joseph’s traumatic birth had resulted in a diagnosable psychiatric disorder. The Judge accepted that Mr Sultan’s withdrawal and avoidance of the situation “was not a consequence of being a person not prepared to accept responsibility…but because of his lack of adjustment” affirming he suffered and continued to suffer a psychiatric condition even after he stopped seeing Joseph.  Her Honour assessed Mr Sultan’s damaged as 20% of a most extreme case and he was awarded $21,000.00 for non-economic loss.

As this case shows, damages can often be difficult to assess as psychiatric injuries will often be met with competing perspectives. A successful claim for nervous shock will depend heavily on obtaining favourable medical expert evidence. We at Gerard Malouf & Partners know the importance of this and have a close relationships with medical professionals to provide evidence on our clients’ injuries.

If you have suffered nervous shock, it is important that you get advice from an experienced solicitor that understands the intricacies of such cases. Contact Gerard Malouf & Partners on 1800 004 878 or complete our email enquiry form for a free consultation with one of our experienced and specialised solicitors to discuss how we can assist you on a No Win No Fee basis.