What happened

During a 2008 birth at Bankstown Hospital, oxygen deprivation caused the child profound permanent disabilities and a need for lifelong care. Both parents, having witnessed the birth and then lived with the developing consequences, claimed damages for pure mental harm, including depressive and anxiety symptoms and resulting effects on work and daily life.

The issues

Once breach and some causation were admitted shortly before trial, the central issues were whether each parent had a recognised psychiatric illness and the extent, prognosis, work consequences and quantum of that illness. Particular disputes concerned whether the mother could realistically exploit a theoretical part-time capacity and whether the father's inconsistent accounts still permitted findings of psychiatric and economic loss.

The court's decision

The Court assessed the mother's non-economic loss at 35% of a most extreme case and directed future economic loss to be calculated on the basis that no suitable job had been shown through which she could exploit her theoretical capacity. It also found the father suffered psychiatric injury and assessed his non-economic loss at 20%, but limited economic loss because he had regained part-time capacity by 2014 and was expected to return to full-time work within a year; both plaintiffs succeeded, with calculations and costs to follow.

Understanding the figures

The 2017 appeal records that judgment was entered for the mother on 27 September 2016 for historical AUD 1,278,459, including AUD 208,000 non-economic loss, AUD 271,469.50 past economic loss and AUD 599,631 future economic loss; the appeal was dismissed. This does not state the father's total or the child's confidential settlement.

What this case shows

The case illustrates that psychiatric work capacity is not the same as earning capacity in the real labour market, and that a defendant relying on residual capacity may need evidence of practical jobs the claimant could obtain and sustain. It also shows that family members exposed to the same medical event require individual assessment of illness, credibility and prognosis.

Why another case may differ

This judgment gave reasons before the parties completed the arithmetic, so it does not itself state either plaintiff's final total. A later judgment of AUD 1,278,459 for the mother was upheld on appeal, but the father's final total is not stated in the public decisions checked, and the child's own settlement terms remained confidential.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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