MARINKO and ANOR v MASRI [1998] NSWCA 138

MARINKO v MASRI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P 4 November 1998

[1998] NSWCA 138

Mason P In 1991 the opponent's wife presented for termination of a pregnancy. As a consequence of the conceded negligence of the claimants, who are a medical practitioner and a day clinic, she suffered catastrophic and permanent injury. The opponent's wife has recovered $3.7 million damages, these monies remaining under the control of the Protective Commissioner.

The opponent commenced proceedings in his own right in 1993 claiming damages for the nervous shock he admittedly suffered in consequence of the discovery of this injury. He was at the surgery when the news was conveyed to him.

The proceedings came on for hearing in May of this year, and were heard by Justice Rolfe. His Honour directed himself that he had to be careful to identify those elements of loss consequent upon the nervous shock, and to distinguish them from the other elements of the opponent's suffering as a parent and a grieving spouse.

His Honour assessed the damages recoverable by the opponent for nervous shock in the sum of $455,170. The major component of the loss was a past wage loss, but there was a continuing loss of earning capacity in a smaller sum but reflective of the fact that, in consequence of the continuing diminishing nervous shock, the opponent was impeded in his working role. The principal issue fought at trial appears to have been the question of whether the damages recoverable by the opponent were in some way to be offset against the damages recoverable by his wife. It was argued that since the major portion of her damages was the Griffiths v Kerkemeyer component and since the Protective Commissioner had power to advance some of those damages recovered to the wife's caregivers including the opponent, that therefore the opponent had acted unreasonably in not seeking to have her funds advanced to him.