The parents of a baby born at Bankstown Hospital, and who suffered profound disability as a result of oxygen deprivation during his birth which was caused by the hospital’s negligence, have been successful in their own claim for damages for nervous shock, with the Supreme Court of New South Wales finding that the hospital’s negligence caused pure mental harm.
Joseph Buksh was born on 24 September 2008, and is severely intellectually disabled as a result of suffering from cerebral palsy. In the four days leading up to his birth, his mother, Rosemary Buksh, attended Bankstown Hospital (Hospital) on numerous occasions with contractions, but was sent home each time. Eventually she was admitted on 23 September and her labour was protracted and very difficult. Various intervention was used during delivery and when Joseph was finally delivered, the cord was wrapped around his neck and he was not breathing. Joseph suffered severe injury, including hypoxia, encephalopathy and cerebral palsy as a result of oxygen deprivation during his birth at the Hospital. He is profoundly disabled, has a significantly shortened life expectancy and requires lifetime care.
Joseph by his tutor, his mother, commenced proceedings in the Supreme Court of New South Wales against the South Western Sydney Local Health Network in negligence and claimed substantial damages. He alleged that those engaged in his birth were professionally negligent. The parties successfully settled the claim for an undisclosed amount.
Joseph’s mother, Ms Sorbello (formerly Buksh), has devoted herself to Joseph’s care since his birth. Joseph’s father, Mr Sultan, left his family in January 2011, when Joseph was aged two. They later divorced and Mr Sultan remarried.
Joseph’s parents, Ms Sorbello and Mr Sultan, in turn commenced proceedings against the Health Network and claimed damages for nervous shock. On the day before the hearing of the matter, the Health Network admitted that it owed the parents a duty of care; that it had breached those duties; and that its breaches had caused some damage.
What remained in issue between the parties was the extent of damage suffered by the parents, the quantum of damage, the extent of any economic loss and the need for treatment.
Her Honour Schmidt J noted that there was no issue that Ms Sorbello suffers a depressive condition as the result of the Hospital’s negligence, but that her past and future capacity to work, as well as the quantification of her non-economic loss, was in issue.
Her Honour assessed non-economic loss at 35%. Schmidt J also found that, but for the Hospital’s negligence and the injury which Ms Sorbello suffered as a result, she would have returned to her past full-time employment at the conclusion of her maternity leave, and that the extent of Ms Sorbello’s psychiatric condition did not permit her to work, even if she wanted to.
As to Joseph’s father, Mr Sultan, the Health Network argued that Mr Sultan suffered no injury as the result of its admitted negligence, and that he had pursued a cynical, belated attempt to profit from his son’s misfortune.
Her Honour found that Mr Sultan suffered a psychiatric injury, and that he continued suffering from its effects after he left his family in January 2011. Schmidt J assessed non-economic loss at 20%. Her Honour also found that Mr Sorbello’s symptoms have over time improved and that with the pursuit of treatment he will recover his health, and assessed future economic loss on the basis that he can presently work half-time and that he will recover and be able to return to full-time work by 12 months from now.
Accordingly, Schmidt J upheld the parents’ claim for pure mental harm: Sorbello v South Western Sydney Local Health Network  NSWSC 863.
This article was written by Jackie Waugh, Wolters Kluwer Torts editor, and first appeared in the Australian Tort, Personal Injury, Health & Medical Law tracker.