Is Prolonged Grief an Injury? A Case Study: Mark Berrell v Western Sydney Local Health District [2016] NSWDC (Unreported)

PUBLISHED 01 Nov 2016

On 28 March 2012 Cassandra Bridge, 21 years old, died at Nepean Hospital.  Nepean Hospital admitted her death was caused by its negligence.

The Plaintiff, Mr Berrell, was the father of the Deceased.  He claimed damages for mental harm caused by the shock of her death.

The issue of the trial was whether Mr Berrell had a “recognised psychiatric illness” under the Civil Liability Act.

In her life, Ms Bridge suffered from cerebral palsy and a condition known as hydrocephalus (a condition where fluid accumulates on the brain, causing enlargement of the head and mental disability).  He described her as perfect and their relationship as fantastic, stating she was everything to him.

Ms Bridge first became ill in February 2012 with an appendicitis.  She later died as a result of acute hydrocephalus onset by obstruction of her cranial shunt brought on by inflammation associated with the appendicle abscess.  Mr Berrell would visit her regularly in hospital.  After she died, Mr Berrell stated that his daughter returned to him as a spirit, and he would regularly stay up past midnight watching television with her.  Mr Berrell’s step-sons gave evidence of how he would buy her items such as soft drink, chips and chocolate which he would leave out for her, and would speak of her to others as if she were still alive.

Under the Civil Liability Act s31, there is no liability to pay damages for harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

Initially, the Plaintiff’s psychiatric expert gave evidence stating that he suffered from a condition known as adjustment disorder, however, when a conference occurred with the defendant’s psychiatric expert,  the Plaintiff’s expert changed his mind about this diagnosis, identifying him as suffering from a condition known as complicated grief disorder.  Complicated grief disorder is a proposed psychological illness involving an abnormal grief reaction. 

The Defendant’s psychiatric expert disagreed with this diagnosis, stating that after the death of a child it is normal for parents to grief for years, even decades.  He stated that as an indigenous man, the Plaintiff’s interactions with his daughter was a cultural aspect known as ‘the dreaming’ which provided him comfort in his grief.

Unfortunately for the Plaintiff, it was the Defendant’s expert which held greater sway with the Judge finding for the Defendant.  Her Honour expressed the illness was not a recognised psychiatric illness as it was not included within the current DSM V, and she was uncomfortable with the idea that traumatic grief after the death of a loved one could be seen as “abnormal”.

This was an unfortunate decision for the Plaintiff and in the view of the writer may be eventually overturned.  Her Honour’s interpretation of a “recognised psychiatric illness” as strictly contained within the DSM V seems unnecessarily strict, and it is apparent from the judgment that the volumes of literature on the condition and presence as a working paper in the DSM V eventual placement within the DSM VI was not drawn to the judge’s attention.  It is also unfortunate for many Plaintiffs who may suffer the death of a loved one as a result of negligence but not fit neatly within other diagnostic criteria.  Time will tell if complicated grief disorder becomes an illness recognised by the Courts.

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