Alves v Patel - [2002] NSWSC 1057

CITATION: ALVES v PATEL [2002] NSWSC 1057

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 12957/94

HEARING DATE(S): 12/2/01, 15/2/01, 16/2/01, 19/2/10, 20/2/01,
21/2/01, 22/2/01, 23/2/01, 26/2/01, 27/2/01, 28/2/01, 2/3/01, 5/3/01, 6/3/01, 7/3/01, 8/3/01, 12/3/01, 13/3/01, 14/3/01, 15/3/01, 16/3/01, 19/3/01, 21/3/01, 22/3/01, 1/7/02, 16/8/02

JUDGMENT DATE: 19 December 2002

PARTIES :

Manuel Barata Alves (Plaintiff)
v
Praful Patel (Defendant)

JUDGMENT OF: Adams J at 1

COUNSEL : Mr John Crumpton QC with Mr John Pender (Plaintiff)
Mr Alan Sullivan QC (Defendant)

SOLICITORS: Gray & Perkins (Plaintiff)
Blake Dawson Waldron (Defendant)

CATCHWORDS: Damages - successful businessman - loss of business ability - assessment of loss - profit on sale of successful business - whether should be brought into account

CASES CITED: Malec v JC Hutton Pty Limited (1990) 169 CLR 638;
Norris v Blake (No 2) (1997) 41 NSWLR 49
Husher v Husher & Anor (1999) 197 CLR 138
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Donellan & Anor v Watson & Anor (1990) 21 NSWLR 335
Perri v Flavell & Anor (No 2) (unreported NSWCA 20 September 1995)
Hayden v NRMA Limited & Ors [2001] NSWCA, 445 [31]
Wilson v McLeay (1961) 106 CLR 523
Griffiths v Kerkemeyer (1977) 139 CLR 161

DECISION: Judgment and verdict for the plaintiff in the sum of $3,470,172 plus costs; I grant a stay to the defendant in respect of $2,000,000 of the verdict; The balance of $1,470,000 to be paid within 28 days of 20 December 2002; As to the $2,000,000, it is to be invested in accordance with the Undertaking to the court except that the account is to be one that pays interest monthly and that such interest is to be paid to the plaintiff; I give liberty to each party to apply within 7 days; These orders are made subject to further order.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

Tuesday 12 November 2002

12957/94

MANUEL BARATA ALVES v PRAFUL PATEL
JUDGMENT

1 HIS HONOUR The plaintiff, Dr Manuel Barata Alves, underwent an operation performed by the defendant, Dr Patel, on 2 June 1988. This operation was a cholecystectomy, the removal or excision of his gall bladder. Although the operation must be done with great care, removal of the gall bladder will not usually significantly affect the patient’s health. As the history which it is necessary to outline in this judgment shows, the consequences Dr Patel’s failure to take adequate care when performing this operation on the plaintiff may fairly be described as catastrophic.

2 Liability is admitted and this judgment is therefore restricted to the issue of damages. The parties were in dispute in respect of two major, though connected, questions. The first of these is whether the plaintiff’s history of continuing significant symptoms is reliable both as to their intensity and persistence, and whether, even if the plaintiff’s history was substantially accepted, the extent to which the seriously disabling symptoms he describes were caused by the surgery. The second…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alves v Patel

Details

AGLC: Alves v Patel [2002] NSWSC 1057
Case: [2002] NSWSC 1057
Decision Date: 19 December 2002

CaseChat Overview and Summary

In the matter of Alves v Patel, the dispute arose between the plaintiff, Mr Alves, and the defendant, Mr Patel, in relation to damages awarded for a breach of contract. The case was heard by the Supreme Court of Victoria. The plaintiff, a successful businessman, alleged that the defendant's actions had impaired his ability to continue running his business and sought damages for the loss of his business ability, as well as for the profit he would have earned from the sale of his business.

The legal issues before the court were whether the loss of business ability could be quantified and compensated, and if the profit on the sale of the successful business should be considered in determining the damages. The court was required to determine the appropriate method for assessing the loss of business ability and whether the profit on sale of the business should be included in the calculation of damages.

The court held that the loss of business ability could be quantified and compensated, but the profit on sale of the business should not be taken into account in the assessment of damages. The court reasoned that the plaintiff's loss of business ability was a direct result of the defendant's breach of contract, and it was appropriate to compensate for this loss. However, the profit on sale of the business was not a direct consequence of the breach and should not be included in the damages calculation. The court determined that the plaintiff was entitled to compensation for his loss of business ability, but the amount awarded did not include any consideration of the profit on sale of the business.

Orders