Mental harm claims by parents: Birth trauma

Sorbello v South Western Sydney Local Health Network; Sultan v South Western Sydney Local Health Network [2016] NSWSC 863 concerned mental harm claims by the (now divorced) parents of a child who had suffered severe injury as the result of oxygen deprivation during his birth. It was common ground that as a result, he is profoundly disabled, has a significantly shortened life expectancy and requires lifetime care.

It was not until the day before hearing that the defendant admitted that it owed the parents a duty of care; that it had breached those duties; and that its breaches had caused some damage: [4].

The defendant objected to tender of a DVD depicting part of the birth, on the basis of relevance and unfair prejudice. Those arguments were not accepted: [14] – [15].

A Jones v Dunkel inference was available in the claim by the father, who did not call evidence as to his mental state from his new wife: [24].

Non economic loss for the mother was assessed at 35% and for the father 20% (after consideration of some asserted credit issues in respect of the father). Economic loss and treatment expense findings were also made.