NSW Caselaw
New South Wales Court of Appeal
CITATION : HUNTER AREA HEALTH SERVICE v MARCHLEWSKI & ANOR [2000] NSWCA 294 FILE NUMBER(S) : CA 41067/98 HEARING DATE(S) : 1 June 2000 JUDGMENT DATE : 26 October 2000
PARTIES : HUNTER AREA HEALTH SERVICE v Lamphud MARCHLEWSKI & ANOR JUDGMENT OF : Mason P at 1; Stein JA at 131; Heydon JA at 132
LOWER COURT JURISDICTION : Supreme Court LOWER COURT CD 20937/95 FILE NUMBER(S) : LOWER COURT Dowd J JUDICIAL OFFICER :
COUNSEL : Appellant: D L Davies SC/S Woods Respondents: P Menzies QC/ D Hirsch (Sol) SOLICITORS : Appellant: Lynn Boyd Respondents: Cashman & Partners CATCHWORDS : Negligence - nervous shock - child born clinically dead and is resuscitated and placed on ventilator life support system - after removal from system child continues breathing - without consultation with parents hospital decides child should not be resuscitated when heart fails - hospital later admits its original breach caused brain damage leading in turn to death - hospital admits breach of duty of care leading to parents' nervous shock - economic loss past and future - awardee already suffering severe depression anxiety - lump sum "cushion" award substituted - therapy and pharmaceutical costs - relevance of safety net under pharmaceutical benefits scheme pursuant to National Health Act 1953 (Cth) - awards of general damages not appealably high - norms or standards of general damages in particular fields under Planet Fisheries - aggravated damages - discussion of whether aggravated damages are capable of being awarded for negligence - doubtful whether need to engraft award of aggravated damages upon negligence claim - aggravated damages not awarded in claim for pure nervous shock - awards for aggravated damages set aside - circumstances in which proper care of profoundly injured person may entail termination of artificial life-support systems - part of nervous shock award on account of future counselling and medication needed for awardee's daughter - part of award set aside in absence of findings to base award. DECISION : See paras 129 and 130.
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