STELTER v THE PRINCE HENRY HOSPITAL [1991] NSWCA 261

STELTER v THE PRINCE HENRY HOSPITAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY JJA and Hope AJA 6 February 1991, 6 February 1991 [1991] NSWCA 261

DAMAGES — nurse's sciatic nerve damaged by admitted negligence of hospital — severe effect on life of plaintiff, aged thirtyseven at time of injury — trial judge's reasons show significant under compensation for "pain and suffering, scarring and loss of the enjoyment of life' — all other aspects of damages adequately assessed — overall effect of under assessment of "pain and suffering etc" sufficient to require reassessment amount of judgment increased.

Priestley JA Mrs Stelter, the appellant, was working for the Prince Henry Hospital as a nursing sister in 1984 when, because of a mishap during her work it became necessary for her to be vaccinated by the hospital's staff clinic against hepatitis B. This was done by two injections, separated by about a month, to her right buttock. The second of these, on 17 April 1984, was wrongly placed and had the effect of damaging the sciatic nerve.

At the end of 1984 she began proceedings against the hospital for damages for the negligent administration of the injection. The hospital admitted liability. Her case was heard by Holland AJ over three days in June 1989 and he delivered judgment on 3 July 1989 in the sum of $121,990.

From his reasons for judgment it appeared that the components of this sum were:

"1. Out of pocket expenses 845.64

2. Past Economic Loss 8,257.45

3. Interest on Past Economic Loss 2,687.00 4. Future Economic Loss 88,000.00 5. Future Medical Expenses 4,000.00 6. General Damages 15,000.00 7. Interest on Past General Damages 3,200.00

121,990.09"

Later in his reasons the trial judge made it clear that under item 6 he was in fact dealing with pain and suffering, scarring of the body and loss of enjoyment of life. Mrs Stelter appealed against this award on the ground of inadequacy. The appeal focused on item 6. It was submitted that on the evidence, a great deal of which was unchallenged, if not all, and in view of the trial judge's acceptance of the appellant as truthful, the figure for item 6 should have been in a $40,000 to $60,000 range. The difference between that and the $15,000 allowed for this component by the trial judge was sufficient to demonstrate that the total judgment amount was, to adopt the test advanced by counsel for the appellant, "so much out of all reasonable proportion to the facts proved in evidence that the award should not be allowed to stand" (re Gilbert (1946) 63 WN (NSW) 176 at 179).