BOVA v LOCKE [2005] NSWCA 226

New South Wales Court of Appeal

CITATION: BOVA v LOCKE [2005] NSWCA 226

HEARING DATE(S): 28/06/05

JUDGMENT DATE: 28 June 2005

JUDGMENT OF: Mason P at 1; Giles JA at 33; Tobias JA at 34

DECISION: Appeal dismissed with costs.

CATCHWORDS: NEGLIGENCE - personal injury - damages assessment challenged on appeal - general damages - future economic loss (ND)

Colin BOVA & Anor PARTIES: Peter LOCKE

FILE NUMBER(S): CA 40598/04

Appellant: I Wales SC COUNSEL: Respondent: M B Williams SC/ R O'Keefe

Appellant: David Ian Brown SOLICITORS: Respondent: Charlton Shearman Read

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20259/01

LOWER COURT JUDICIAL OFFICER: Kirby J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40598/04

MASON P GILES JA TOBIAS JA

Tuesday 28 June 2005

Colin BOVA & Anor v Peter LOCKE JUDGMENT

1 MASON P: In January 2000 the respondent was a medical practitioner working in the Emergency Department of Canterbury Hospital. His wife was admitted to Liverpool Hospital on 24 January 2000 and gave birth to twins. She developed the life threatening complication of untreated pre-eclampsia, the leading perinatal cause of maternal morbidity, and she suffered from fitting, cerebral haemorrhage and a fractured left femur requiring surgery. These conditions were the result of what became the admitted negligence of the two appellants. The respondent witnessed these events at Liverpool Hospital and found himself required to intervene in very dramatic circumstances to treat and resuscitate his wife. Inevitably, given the sequelae of her own injuries, the respondent has been faced daily with his wife's own situation and reminders that it brings to him. In consequence of these events the respondent developed a psychiatric injury which the trial judge found to be permanent. 2 The damages trial spanned ten days over various dates in late 2003 and early 2004. Kirby J delivered a closely reasoned, reserved judgment (Locke v Bova & Anor [2004] NSWSC 534). Damages calculated in accordance with his Honour's reasons totalled $782,978.48. The assessment was according to common law principles. 3 The grounds pressed in this appeal challenged the assessment with respect to general damages and future economic loss. No error of legal principle was suggested nor, with isolated exceptions, were the findings of primary fact put in issue in the appeal. In fact, the appeal re-agitated key issues that were squarely addressed by the learned trial judge and decided adversely to the appellant on the facts. In reaching his conclusions, the trial judge had the advantage of seeing the witnesses, most importantly the respondent himself. It is also salutary to remind oneself that: The need for appellate caution in reversing a trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Reynan said, 'la verite et dans une nuance'), of which time and language do not permit exact expression, but which may play an important part in a judge's overall evaluation."