Mental harm claim by an infant

Although not a claim arising from medical advice or treatment,  Atiligan Uluc by his tutor Tayfun Uluc v Ahu Cakir [2018] NSWDC 3 is of interest for its consideration of a mental harm claim made for a child who was aged 3 months at the time of a car accident and had no memory of it.

A joint expert report saw agreement that “the child has no memory of the accident. In view of the child’s age at the time of the motor vehicle accident … the child suffered no psychological injury as a consequence of his experience of the motor vehicle accident” (at [77]) however the report went on to address the impact on the child of the role of the mother, saying at [79]: “… the impact of the motor vehicle accident on the mother greatly compromised her capacity to appropriately manage the child. Both parties agreed that the child’s functioning evolved in part as a consequence of mismanagement by the mother. Both parties agreed that the mother’s mismanagement of the child was a consequence of the subject motor vehicle accident.”

The trial judge held:

  • The plaintiff did not suffer any impairment of his mental condition as a result of the accident and does not suffer any impairment of his mental condition, in any event (at [87]); and
  • Given the plaintiff’s age at the time of the accident and his inability to recall what occurred, even if pure mental harm existed, the statutory limitations would prevent recovery of damages. That is, it cannot be said that the plaintiff witnessed any of the maters referred to in s30(2)(a): (at [89])

 

 

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