The respondent gave birth to her son in 2008. The baby was born with severe disabilities which severely reduced his life expectancy. The respondent claimed that these disabilities were caused as a result of the negligence of the staff who delivered her baby, and was  therefore the responsibility of the Local Health District that the hospital fell within.

The respondent suffered significant psychiatric injuries, including nervous shock, anxiety and depression. The medical reports provided by the respondent indicated that the development of these psychiatric injuries was as a direct consequence of the trauma associated with the respondent learning of the severity of the disabilities of her son, and the associated level of care he required, and would require for the remainder of his life.

The respondent therefore claimed damages at first instance in the Supreme Court, in the nature of  mental harm arising from the negligence of the Local Health District, and resulting disabilities of her son.

The Local Health District admitted liability and damages were awarded under the heads of pain and suffering, and past and future wage loss.

Particularly, the respondent was able to satisy the court that she had a diminshed future earning capacity because of her psychiatric injuries.

The appellant (the Local Health District) appealed the award of damages on 2 grounds:

1. The Primary judge should not have relied upon the expert medical evidence provided by the respondent, and instead should have relied upon the medical evidence put forth by the appellant.
2. The primary judge was in error in casting an onus on the appellant to establish the respondent’s residual future earning capacity, and therefore the value of future wage loss.

The central issue in dispute between the parties was whether it was the responsibility of the appellant or the respondent, to establish whether the respondent had completely lost all of her earning capacity as a result of her psychological injuries, or whether she was still able to work in some capacity, even if it was a reduced capacity.

This issue was integral to determining the amount that the respondent should be awarded in damages, with respect to future wage loss. Essentially, it had to be decided whether she was entirely unable to work in the future because of her illnesses, or whether her capacity for work was merely reduced.

 It was held on appeal that the primary judge was not in error in relying on the medical evidence of the respondent, as opposed to that of the appellant. The appellant did not provide sufficient evidence to suggest otherwise.

In relation to the appellant’s second ground of appeal, it was decided that the onus was on the appellant to determine the respondent’s residual earning capacity with respect to future wage loss.

Provided that the respondent had established that there was a diminished earning capacity as a result of psychiatric injuries, the onus lay on the appellant to prove that whatever residual earning capacity remained, the respondent had failed to exercise it. As such, the respondent was only required to satisfy the court that she had suffered a loss of earning capacity, however was not required to quantify that loss.

The initial award of damages in regard to future wage loss was accurate, and the appellant was ordered to pay the respondent’s costs of the appeal.