SERHAN v LANG AREA HEALTH SERVICE [1994] NSWCA 283

SERHAN v LANG AREA HEALTH SERVICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA

3 March 1994, 3 March 1994

[1994] NSWCA 283

Neck injury — negligence — direction to jury — credibility — quantum of damages.

Clarke JA The appellant was admitted to Bankstown Hospital for confinement with her second child. During the birth there was an attempt, and it is questionable whether it was successful or unsuccessful, to administer an epidural injection. During the course of this procedure the appellant's head was pushed forward with some force, as a consequence of which she complained she suffered from a neck injury. She brought proceedings against the Lang Area Health Service, the respondent, which represented the hospital asserting that there had been negligence in the manner in which her head had been pushed forward.

She complained that following the incident she suffered from significant neck pains and disability for a closed period of four years. I should mention that the reason why the period was closed was that there was another accident at the end of that period.

The hospital denied that it had been negligent and contended that at the very least the appellant was exaggerating her claim. The jury who were directed by Judge Herron, a very experienced common law judge, accepted the appellant's case on liability and found a verdict in her favour. They clearly did not accept her case on damages for they awarded her the sum of $5165.68. That verdict included the agreed out of pocket expenses of $2165.68. The appellant has asserted in this Court that the general damages award, which can easily be identified, was so unreasonable that no sensible jury properly directed could have reached that conclusion.

In his submissions in support of the appeal, Mr Williams has pointed out that many of the medical expenses must have been incurred during the latter part of the four year period and that there is an inconsistency between the jury award which, presumably, compensated the appellant for a relatively short period of disability and the allowance of medical expenses. This particular point has, in my opinion, no substance at all.