JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BANERJEE -v- SHAH [2012] WADC 28
CORAM: COMMISSIONER GETHING
HEARD: 17-19 JANUARY 2012
DELIVERED : 27 FEBRUARY 2012
FILE NO/S: CIV 3759 of 2009
BETWEEN: ROBERT BANERJEE
Plaintiff
AND
DR ALPESH SHAH
Defendant
Catchwords:
Negligence - Dentist - Personal injury - Assessment of damages
Legislation:
Civil Liability Act 2002 (WA)
Result:
Damages assessed
Plaintiff awarded $401,459
Representation:
Counsel:
Plaintiff: Mr K J Bradford
Defendant: Mr G R Hancy
Solicitors:
Plaintiff: Bradford & Co
Defendant: Norton Rose Australia
Case(s) referred to in judgment(s):
Brocx v Mounsey [2010] WASCA 196 [1]
Graham v Baker (1961) 106 CLR 340
Houlahan v Pitchen [2009] WASCA 104
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jongen v CSR Ltd [1992] Aust Torts Rep 81-192
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Mastaglia v Burns (2006) 32 WAR 427
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Paul v Rendell (1981) 34 ALR 569
Raso v Raso [2007] WADC 53, [135] ‑ [136]; (2007) 51 SR (WA) 1
Traeger v Harris [No 4] [2011] WADC 45
Van Der Velde v Halloran [2011] WASCA 252
Villasevil v Pickering [2001] WASCA 143
Wynne v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485
COMMISSIONER GETHING: In this action, the plaintiff seeks damages from the defendant arising out of prosthodontic treatment by the defendant between April and June 2007. The plaintiff saw the defendant after the removal of a tooth securing a two‑tooth bridge in his lower jaw. The plaintiff agreed to allow the defendant to remove all his teeth and provide implant secured prosthetic full arch teeth, referred to as 'bridges', to his upper and lower jaws. As a result of what the plaintiff alleges is negligence by the defendant, the plaintiff suffered a sequence of difficulties with the implants and bridges provided by the defendant. He subsequently sought dental care from other practitioners. Since December 2008 he has had a new, limited, bridge to his upper jaw with only six teeth. Since August 2009, he has had no teeth in the lower jaw, only the implant stubs. Consequently, he is on a soft food diet. He has commenced the process of remedial dental work, but this will take a further 12 or so months to complete.
Negligence is admitted. The matters for me to determine are to assess general damages and past and future economic loss. The other heads of damages have been agreed at $84,000.
A key issue in the case is whether the defendant is liable to compensate the plaintiff for economic losses suffered as a consequence of the plaintiff…
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- Banerjee v Shah [2012] WADC 28
- Case
- [2012] WADC 28
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the extent of the plaintiff's damages, including both past and future economic losses, as well as non-economic losses. A key issue was the appropriate discount to apply to future economic losses to account for potential contingencies that could affect earning capacity. The court also needed to decide on the proper method of calculating superannuation losses and the applicable discount for contingencies in those calculations.
In reaching its decision, the court considered established principles regarding the assessment of damages for personal injury. It referenced several precedents, notably Wynne v New South Wales Insurance Ministerial Corporation and Villasevil v Pickering, to guide the calculation of future economic losses. The court determined that a discount for contingencies was not necessary in this case due to the specific circumstances of the plaintiff and his employment. The court allowed the plaintiff's claim for lost superannuation contributions, applying a 9% rate to the gross earnings and subsequently adjusting for taxes, administration fees, and contingencies, which amounted to a 15% deduction. The court awarded damages for past loss of superannuation, including interest, and for future loss of superannuation based on the income figure. The total damages were calculated and awarded accordingly.
The court ordered the defendant to pay the plaintiff $13,996 for past loss of superannuation, inclusive of interest, and $4,826 for future loss of superannuation. The defendant was also directed to pay additional amounts for other claimed damages, bringing the total awarded to the plaintiff.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The calculation of future economic loss is invariably discounted to take account of the various possibilities which might otherwise have affected earning capacity going into the future: Wynne v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485, 497. The major adverse contingencies usually taken into account are sickness, accident, unemployment and industrial disputes: Wynne (497); Brocx v Mounsey [2010] WASCA 196 [1], [61], [112]. Positive considerations which may be taken into account include advancement and increased earnings: Wynne (497), Brocx [1], [61], [112]. These contingencies are to be considered in terms of their likely impact on the earning capacity of the person who has been injured, not by reference to the workforce generally: Wynne (497), Brocx [1], [61], [112]. In Western Australia, the discount for contingencies is 'rarely more than 15% and usually between 5% ‑ 10%': Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167 [38]; see also Brocx [1], [63], [112]; Montemaggiori, [64]. The representative period I have chosen takes into account sickness, leave and other uncertainties related to this plaintiff and his contract based work. Future economic loss is only for a limited period of 13 months. Accordingly, I do not consider that the present case is one in which it is appropriate to make a further deduction for contingencies. The plaintiff claims damages for lost superannuation contributions on the calculated gross earnings at the rate of 9%, which I allow. I then need to deduct an amount to take account of taxes, administration fees and contingencies in the superannuation arrangements of the plaintiff: Jongen v CSR Ltd [1992] Aust Torts Rep 81-192 (61,706), 61,713 ‑ 61,714; Villasevil v Pickering [2001] WASCA 143, [1], [45] ‑ [70], [87]. In my view, the appropriate figure is 15%: Hodge v Barham [2011] WADC 71 [334]; Traeger v Harris [No 4] [2011] WADC 45, [316]; Brett v Rees [2008] WADC 9 [115]; Raso v Raso [2007] WADC 53, [135] ‑ [136]; (2007) 51 SR (WA) 1. I calculate damages for past loss of superannuation as follows:Total gross earnings = $167,168Loss of superannuation: $167,168 x 9% x 85% = $12,788 I allow interest at an average rate of 3% per annum:Interest:$12,788 x 3% x 3.15 years = $1,208 I award $13,996 in respect of past loss of superannuation, inclusive of interest. The plaintiff claims, and I allow, damages for loss of future superannuation, but only on the income figure, not the lump sum. I calculate future loss of superannuation as follows:Total gross future loss = $63,088Loss of superannuation: $63,088 x 9% x 85% = $4,826 I award $4,826 in respect of future loss of superannuation. In summary terms, I assess damages as follows: