Banerjee v Shah
[2012] WADC 28
•27 FEBRUARY 2012
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):
Brett v Rees [2008] WADC 9
Brocx v Mounsey [2010] WASCA 196 [1]
Dean v Phung [2011] NSWSC 653
Graham v Baker (1961) 106 CLR 340
Hodge v Barham [2011] WADC 71
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
Setton v Eves [2006] WASCA 3
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 ceasing work in December 2008. The plaintiff asserts that he has been incapable of working from this date due to anxiety and panic disorders causally linked to the issues he was having with his teeth. He claims he is thus entitled to past and future economic loss based on his income as a Registered Nurse Level 2.1 in the two or so years preceding his cessation of work in December 2008. He claims future economic loss until he has had time to rehabilitate following the completion of remedial dental work.
The defendant asserts that while there is psychiatric evidence that I am entitled to accept supporting the plaintiff’s position, I am not bound to do so. Rather, once the detail of the plaintiff's medical records are examined, it is apparent that:
(a)the plaintiff is prone to delusions and not telling the truth, such that his reliability is open to serious question (though the submission did not go so far as to say the he is prone to lying in the sense of deliberately not telling the truth);
(b)the failure to work between December 2008 and April 2009 is unexplained;
(c)the date on which the plaintiff became incapable of working is no earlier than the end of April 2009; and
(d)the link between the cessation of work and the issues with the plaintiff's teeth was not made initially, and was recreated after the event to support the claim for damages.
These submissions are made in the context of the plaintiff having a pre‑existing chronic (longstanding) bipolar affective disorder (BPAD).
At its highest, the defendant's position is, in effect, that the plaintiff has not discharged the burden of proof on him to establish a causal link between his incapacity to work and the defendant’s negligence. The defendant further asserts that even if the cessation of work was causally related, it will not be productive of the level of economic loss submitted by the plaintiff.
The parties agreed to the tender of a book of medical reports on the basis that I should treat the medical reports as standing as the evidence in chief of the various authors. (I will refer to materials from this book with the reference 'MB' and the page number). On this basis, the plaintiff tendered reports from Dr Bradley Shepherd (the plaintiff's treating prosthodontist), Dr Brent Allan (the plaintiff's treating oral and maxillofacial surgeon), Dr Viktor Obiri‑Boateng (the plaintiff's treating psychiatrist) and Dr Nasvneet Johri (who merely provided a report as to dates of attendances by the plaintiff on Dr Obiri‑Boateng). The defendant tendered reports by Dr Gemma Edwards‑Smith (who provided a medico legal psychiatric opinion) and Dr Greg Gee (a dental surgeon who undertook a medico legal review of the plaintiff). Of these only Dr Shepherd gave oral evidence, and was not cross‑examined. No other author was cross‑examined on their report.
The only other witness called was the plaintiff. The plaintiff tendered a book of financial documents (I will refer to material from this bundle by the reference 'FD' and the page number).
The defendant tendered a book of treatment records comprising hospital and medical notes from the Armadale Mental Health Services (AMHS) files pursuant to Evidence Act 1906 (WA) s79C (EA). (I will refer to material from this bundle by the reference 'TR' and the page number).
Plaintiff's general background
The plaintiff gave evidence that he was born in Calcutta, India. At the date of trial he was 58 years old. At the age of 11 he and his family migrated to the United Kingdom. In the United Kingdom he completed school to the equivalent of Australian year 11 standard.
On leaving school, the plaintiff held various positions as an accounts clerk. He ended up working in the stock broking industry for a number of years. His career in that industry came to an end with the stock market collapse of 1987.
The plaintiff was married in 1982 and divorced in 1985. He had a daughter born in 1983. He has not remarried.
By 1987, some of the plaintiff's siblings had migrated to Australia. He decided to retrain as an upholsterer and furniture maker. His reason for doing so was that these trades were in demand in Australia thereby facilitating his migration. He qualified and worked as an upholsterer and furniture maker in the United Kingdom. He migrated to Australia in 1994.
The plaintiff was not cross‑examined on this evidence, and I make factual findings in terms of it.
Plaintiff's pre-existing psychiatric issues
Plaintiff’s evidence
The plaintiff gave evidence that whilst he was still in the United Kingdom he developed mental health issues. He was hospitalised on at least one occasion in the United Kingdom for these mental health issues.
Since arriving in Australia, the plaintiff has received treatment for his mental health issues. The plaintiff said that it was not until arriving in Australia that he was diagnosed as having BPAD.
Soon after arriving in Australia, the plaintiff had one attendance at the mental health unit of Sir Charles Gardner Hospital.
The plaintiff said he was subsequently treated at the mental health unit of the Bentley Hospital. On a number of occasions he was hospitalised at the Bentley Hospital mental health facility. On some occasions he was a voluntary patient, on others an involuntary patient.
He estimated that he was never admitted more than once per annum. Sometimes his admissions were for a short period of 2 ‑ 3 weeks, but on another occasion he spent 2 1/2 months in hospital.
In 2003 he changed address and came under the AMHS catchment area. The AMHS provided treatment to him from that time, and continues to do so.
The plaintiff's evidence was that his bipolar condition only had a small impact on his work. When he was in hospital he could not work. He said that after a bit of rehabilitation he was able to go back to work. He confirmed that other than his periods in hospital, he has not had significant periods of being unemployed.
The plaintiff attends the AMHS about once a month to see a psychiatrist. Up till now that psychiatrist has been Dr Obiri‑Boateng. However, Dr Obiri‑Boateng has recently retired and his future care will be by another psychiatrist.
The plaintiff gave evidence that he is on a lithium-based medication for his BPAD as well as Olanzapine as and when required. He gave evidence that if he stops taking his medication he tends to have a relapse.
His evidence was his last relapse was in 2006 or 2007. When asked by his counsel whether he has his condition under control he answered 'yes'.
Hospital and medical evidence
In cross‑examination, counsel for the defendant put the plaintiff's progress and treatment notes to him in some detail. It is convenient to refer to the salient parts of the cross‑examination in the context of reviewing the treatment records.
The progress and treatment notes contain numerous references to telephone conversations, home attendances and out patient attendances with both psychiatrists and Community Mental Health Nurses (CMHN). For present purposes, I have sought to distil from this history the more significant interactions, including the ones drawn to my attention by counsel. The plaintiff seems to have been under the care of Dr Obiri‑Boateng since around 2003, with reviews every month or so. Again, I have sought to refer only to appointments of particular relevance, having the benefit of a detailed report from Dr Obiri-Boateng which I refer to at a later point in the reasons.
On 18 September 2002, a CMHN mental health nurses from Armadale Hospital interviewed the plaintiff at his home. He had delusions of persecution. In the interview notes, there is a reference to him having been in hospital in London for seven months. The notes record that the plaintiff had been non‑compliant with his medication (TR 11 ‑ 13).
Counsel for the defendant noted that on this occasion, the plaintiff was recorded as 'never married'. This was cited by the defendant as an example of the plaintiff being prone to not being reliable with the truth (ts 175).
On 27 September 2002, the plaintiff was admitted to the Leschen Unit of Armadale Hospital as an involuntary patient (TR 23). It appears that this followed him being sacked by his employer several days earlier (TR 19). He was released on 22 October 2002 (TR 27).
On 6 November 2002, the plaintiff was admitted to Armadale Hospital. The records seem to indicate that he was non‑compliant with his medication (TR 8).
On 29 October 2003, the plaintiff presented himself at the Armadale Hospital and asked to be admitted. He was referred by his GP (TR 46 ‑ 49). He reported paranoia at work, as well as persecution by his peers. He also reported anxiety as a result of his studies (TR 29). Initially, there was no bed available (TR 36). He seems to have subsequently been admitted to Bentley Hospital, and discharged on 3 November 2003 at his request (TR 5, 40).
The plaintiff attended the Armadale Hospital for an emergency appointment on 28 November 2003. He reported paranoid delusions. It was also observed that he had been non‑compliant with his medication. The outcome was a recommendation for voluntary admission, but there were no beds available (TR 39 ‑ 42, 53 ‑ 54). The plaintiff reported 'visual hallucinations of fireballs coming at him' (TR 56). He seems to have subsequently been admitted, and then discharged on 1 December 2003 (TR 55).
In the progress notes, there is a note of a meeting on 4 March 2004 in which the author notes 'recently admitted to ASC – for couple of weeks in December 2004' (TR 56). This must be a reference to December 2003 as the appointment was in March 2004. I interpret this to be a reference to the two admissions on 3 November 2003 and 28 November 2003, which I have referred to above. If there was another longer admission in December 2003, I would have expected to have found a more detailed reference to it in the treatments records of the AMHS (see by comparison TR 385).
At an appointment with Dr Obiri‑Boateng on 4 March 2004, he reported no delusions nor hallucinations. The doctor observed him to be euthymic, with his mania in remission (TR 57). I pause here to note that the term 'euthymic' means 'pertaining to a normal mood in which the range of emotions is neither depressed nor highly elevated': Mosby’s Medical Dictionary, 676 (8th ed, 2009 Elsevier Inc, St Louis Miss).
At an appointment with Dr Obiri‑Boateng on 27 September 2004, the plaintiff reported stress, insomnia and headaches (TR 58). He also reported a recent bereavement. The doctor observed him to be euthymic.
The plaintiff attended on Dr Obiri‑Boateng on 30 May 2005 (TR 60). He reported being under pressure with upcoming exams. Dr Obiri‑Boateng noted depressive symptoms.
At appointments on 21 November 2005 with a CMHN and then with Dr Obiri‑Boateng, the plaintiff again reported being under stress because of his studies (TR 63-64). He also reported that his medication was making him drowsy. He had to take some days off work. Again, delusions were noted, as well as the plaintiff's report that he believed people are talking about him.
On 23 December 2005, the plaintiff saw Dr Obiri-Boateng. He said he had graduated from his nursing degree and had a graduate position at Royal Perth Hospital. He said that he needed a letter from Dr Obiri‑Boateng to the effect that he could work at RPH given his BPAD, which he had declared. He said that he felt 'pretty stable all of the time' (TR 65). It appears that a letter was provided, though it was not in the materials before me (TR 66).
It appears from the treatment records that early in 2006 the plaintiff obtained a medical certificate from his GP for two months off work (TR 66). This was put to the plaintiff in cross‑examination and he was asked whether he can remember being under stress at that time. He said (ts 67):
I started to feel stressed, but I made the best of the worst situation and I carried on working until I had tried to address the problem by approaching my superiors and talked to them about it.
The plaintiff reported to a CHMN on 31 March 2006 that his BPAD was triggered by stress and that he was having trouble with some people at work (TR 66). It was mistakenly put to the plaintiff in cross‑examination that this conversation was with Dr Obiri‑Boateng (ts 67). The plaintiff conceded that he may have said that he had been having trouble with the people he worked with, but he said that if he did have a problem, he would raise it with his supervisor, and would not confront anyone.
On 21 April 2006, the plaintiff rang Dr Obiri‑Boateng asking for a repeat script on his lithium medication (TR 67). The doctor noted that the previous script should have run out 'a long time ago' suggesting non‑compliance. He also spoke to a CMHN on the same date about his medication and about being placed on a waiting list for an appointment with a psychologist (TR 67). (The defendant seems to have interpreted a reference to this attendance in another document (TR 88) as being to a period of hospitalisation. The reference is to the plaintiff's last being 'seen at Mead Clinic' on 21 April 2006. Mead Clinic is the AMHS mental health outpatient clinic. If there was a period of hospitalisation, I would have expected to have found more detailed references to it – again, see TR 385. I interpret the reference in TR 88 to be to the interactions with Dr Obiri‑Boateng and the CMHN on 21 April 2006).
Between 29 June 2006 and 11 September 2006, the plaintiff was an involuntary in patient at Armadale Hospital (TR 88 ‑ 89, 91, 107, 109, 112, 243). The admission followed a home visit by a CMHN as concerns had been noted by staff about his well being (TR 68, 112). On admission, he had 'persecutory delusions'. It was also noted that he was non‑compliant with his medication. He was diagnosed with a manic relapse secondary to medication non‑compliance. On occasions through out this stay he was verbally and physically abusive to staff and had to be secluded (eg TR 114, 117, 120, 123, 126, 129, 132, 135, 138, 142, 145, 148).
At an appointment with Dr Obiri‑Boateng on 27 October 2006, the plaintiff reported that he was back at work. He also said that he was going on a seven week holiday with his partner to South East Asia (TR 68). He confirmed both these facts in cross‑examination. Dr Obiri‑Boateng had provided a letter dated 28 September 2006 stating that the Lithium Carbonate SR (Quilonum) in the plaintiff's possession during his South East Asia trip was being taken under medical supervision (TR 320).
On 30 January 2007, the plaintiff had a telephone conversation with a CMHN. He asked to be admitted to hospital, 'before he gets to bad' (TR 69). He said that he had not been fully compliant with his medication as he was working night shifts. On 31 January 2007, he had a consultation at his home with a CMHN and then a consultation with Dr Obiri‑Boateng. To both he reported grandiose and paranoid delusions. He agreed to take his medication, adjusting it to the mornings when he did night shift. He was informed that there was no bed available, and that he could be managed in the community. On 31 January 2007, Dr Obiri‑Boateng gave the plaintiff a medical certificate for the period 1 to 4 February 2007 (TR 319).
The plaintiff was asked in cross‑examination whether he remembered having delusions in January 2007. He said that he remembered having delusions, but not the dates (ts 69).
On 2 February 2007, the plaintiff reported to a CMHN that he believed people were talking about him at a concert he went to (TR 71).
On 5 February 2007, the plaintiff saw Dr Obiri‑Boateng. On that occasion, the doctor noted an absence of paranoid or grandiose delusions. He was concerned about 'how he was going to pick up at work'. Dr Obiri‑Boateng observed that he appeared euthymic (TR 71 ‑ 72).
On 11 April 2007, the plaintiff again saw Dr Obiri‑Boateng. He reported that work was going well (in aged care), though he was feeling depressed. Dr Obiri‑Boateng observed that he was currently euthymic (TR 73).
On 19 April 2007, the plaintiff saw Dr Obiri‑Boateng. In a short entry, the doctor described the plaintiff as being euthymic (TR 73). A review on 28 May 2008 was to similar effect, with the plaintiff reporting that he had been well and was working a lot (TR 74). On each of these reviews, the plaintiff had indicated an intention to pursue post graduate studies in mental health nursing.
In late June 2007, the plaintiff reported to a CMHN that he was feeling low and had unspecified suicidal thoughts. At subsequent home visits he expressed paranoid and grandiose delusions (TR 75, 76). There was some reference to his teeth being removed.
On 11 July 2007, the plaintiff saw Dr Obiri‑Boateng. The doctor recorded paranoid and grandiose delusions, and observed that the plaintiff appeared to be in the early stages of mania (TR 77).
The plaintiff went back to see Dr Obiri‑Boateng on 18 July 2007 (TR 78). On that occasion, the doctor observed that the plaintiff was not currently garrulous, and was calm and coherent. His impression was that the manic phase was remitting.
At the next review on 16 August 2007, Dr Obiri‑Boateng noted that the plaintiff's recent manic swing was now settling, and that the plaintiff had started his post graduate nursing studies (TR 79).
On 7 September 2007, the plaintiff received a home visit from a CMHN. He was found to be euthymic, with no manic features (TR 79).
In consultations with a CMHN on 13 and 26 September 2007, the plaintiff expressed concern that people were talking about him, in particular at Bentley Hospital where he was doing a practicum as part of his post graduate studies (TR 80).
Between 11 and 23 October 2007, the plaintiff was a voluntary in patient at Armadale Hospital. The admission summary records that the plaintiff felt increased pressure to work and study which led to a deterioration in his mental state and functioning, specifically, increased paranoia and persecutory delusions and reduced sleep (TR 303, 305).
On 26 October 2007, the plaintiff requested an urgent appointment with Dr Obiri‑Boateng (TR 84). He reported that he perceived that his colleagues were avoiding him. The doctor adjusted his medication.
At the subsequent review on 5 November 2007, the plaintiff reported felling much calmer since his medication was increased (TR 68). There was discussion of him deferring his practicum at Bentley Hospital. Dr Obiri‑Boateng recorded an impression that the plaintiff's acute mania was showing signs of remitting.
At his review with the CMHN on 15 November 2007, the plaintiff was reported as being settled and compliant with his medication (TR 87). He said he was going on a six week holiday to England. In cross‑examination, he elaborated that this was to see his father who was unwell (ts 80).
He was then reviewed by a CMHN on 12 December 2007 (TR 87). He was described as being euthymic, with no psychiatric or manic features, and appeared to be compliant with his medication. He reported problems with his teeth. He elaborated on these problems in cross‑examination, stating that he had been trying for some time to get the defendant to fix his bridges, and had only been able to secure an appointment the day before he flew out to England. The plaintiff had hoped to get new bridges from the defendant, but in the end the defendant had simply adjusted and repaired his existing ones. He was also being pressed by the defendant to pay the final portion of his account (TR 80 ‑ 81).
At a review with a CMHN on 12 February 2008, the plaintiff reported problems with his teeth, and that he could only eat soft foods (ts 87). He reported that his teeth were the only things causing him problems at that stage. He also referred to his job as a community health nurse.
At a review with a CMHN on 3 April 2008, the plaintiff reported feelings of paranoia, and that people were talking about him (TR 87). He had been non‑compliant with his medication.
In a telephone call to a CMHN on 16 June 2008, the plaintiff reported having a heart attack. He reported that his mental state was okay and that he had started back at work that day (TR 345).
At a subsequent appointment with a CMHN on 25 June 2008, the plaintiff reported that he was feeling okay after his heart procedure and return to work (TR 345). He said that he had started legal proceedings against his dentist and that he was compliant with his medication.
The plaintiff was reviewed by Dr Obiri‑Boateng on 18 July 2008. He reported that he was doing well and currently working (TR 346). The doctor noted him to be euthymic. A review by the CMHN on 7 August 2008 was to similar effect (TR 346).
On 8 October 2008, the plaintiff saw Dr Obiri‑Boateng (TR 346). He reported regarding his psychiatric problems that he was calm and his moods were stable. He did, however, report being anxious about his dental problems. The doctor noted that the plaintiff had seen a maxillo facial surgeon and a prosthodontist about implants. The plaintiff reported that he was working for two days doing immunisations and three days at Belmont High School. Dr Obiri‑Boateng observed him to be euthymic.
It was put to the plaintiff in cross‑examination that he did not tell Dr Obiri‑Boateng at this appointment that he was anxious about his work due to dental problems. The plaintiff responded that did not know if he did or did not (ts 87). Counsel continued (ts 87):
All right. I’m just asking you that because there's no record in his notes of his review on 8 October 2008 of you telling him that you had problems with your work because you were anxious about your dental problems even though he recorded that, that you were anxious dental problems?‑‑‑Yeah, well, so what?
Well, you weren't prevented from working just because you were anxious about your dental problems were you?‑‑‑No. But I told you I was trying to make the best out of the worst situation and I stopped working at the point where I just couldn't cope with it anymore.
The plaintiff also accepted in cross‑examination that he was working as described by Dr Obiri‑Boateng, two days doing immunisations and three days at Belmont High School, and not one after the other as he described in his examination‑in‑chief (ts 87).
On 15 October 2008, the plaintiff called his CMHN (TR 347). He said that his mood had changed over the past few days. His moods had swung between highs and depression. He reported that he did not feel equipped to do his job properly as he was ill equipped to do health promotion with kids. He discussed some options with the CMHN.
He attended the clinic and saw his CMHN on 23 October 2008 (TR 348). He reported mood swings, paranoid delusions and that people were talking about him behind his back. He said that he did no know what to do about his job. He also reported being partially non‑compliant in his medication. The CMHN encouraged him to recommence all his medication.
On 30 October 2008, he had another review with his CMHN, who reported that the plaintiff was having a semi relapse due to non‑compliance with his medication (TR 348). The plaintiff reported he was working full‑time as a nurse.
There is then an appointment with the CMHN on 29 January 2009, who reported that the plaintiff was in remission and compliant with his medication (TR 348). The CMHN also reported that the plaintiff was working full‑time as a community health nurse.
In cross‑examination, it was put to the plaintiff that this is at odds with his evidence that he ceased work as a CMHN in December 2008. In response, the plaintiff reiterated that he ceased working when his contract expired in December 2008. He ventured the view that the CMHS may have assumed that he was going back because it was then school holidays (ts 93 ‑ 94).
Counsel for the plaintiff objected to this portion of the treatment record being used as evidence as the truth of the statement recorded. Counsel for the defendant said that the submission he would make is that this is yet another example of the plaintiff not being reliable with the truth in dealing with health professionals. Counsel said it was also significant that in this review, there was no record of any complaint about any inability to work or any anxiety about his teeth, either separately or one associated with the other.
The plaintiff then attended a review with Dr Obiri‑Boateng on 13 March 2009 (TR 349). The plaintiff reported being a lot more stable with his moods. The doctor observed him to be euthymic. However, 'on the down side' the plaintiff reported a 'huge dental problem, has negative thoughts, can't change that to positive thoughts'.
In cross‑examination, the plaintiff confirmed that he was not working as at the date of this appointment (ts 94). He said that he could not recall what he might have said to Dr Obiri‑Boateng on particular occasions (ts 94):
Do you remember seeing Dr Obiri‑Boateng in March 2009, that is, before you did this short period of work in night‑shift in April?‑‑‑As I told you before, I - I don't remember dates. I - in fact, when it comes to, you know, seeing Dr Obiri, as I said to you, I had regular appointments with him and I couldn't tell you what I said to him on, you know, on any particular appointment, like, what was discussed or - or anything. I mean, you know, if you read out his notes then it might jog my memory and I tell you, you know, whether I recall it or not. I don't know.
On 20 April 2009, the plaintiff had a home visit from a CMHN, at his request (TR 350). The plaintiff reported that he was feeling unwell, his thoughts were all over the place. He referred to his dental issues and the stresses of litigation. He expressed some slight paranoid and thoughts about his solicitors. He was compliant with his medication and the nurse observed his mood to be euthymic. At a visit the next day, the plaintiff continued to express concerns about his law suit and the financial issues around his legal fees.
On 22 April 2009, the plaintiff saw Dr Obiri‑Boateng (TR 351). The only note of this meeting is that of the CMHN, making this entry 'double‑hearsay'. The only point I draw from this note is that the plaintiff seemed concerned about his legal claim.
The plaintiff saw Dr Obiri‑Boateng on 8 May 2009 (TR 352). On that occasion the plaintiff again discussed his legal claim. The doctor discussed anxiety and stress issues relating to the litigation with him. There was also some discussion of issues of paranoia.
The plaintiff had a review with a CMHN on 3 June 2009 (TR 352 ‑ 353). He reported ongoing stresses with the lawyers and an inability to deal with stress. He also reported that he had stopped working. He was compliant with his medication.
On 15 June 2009, the plaintiff saw Dr Obiri‑Boateng (TR 353). He discussed the progress of the claim with the doctor and the impact of the stress and anxiety of it. The plaintiff reported that in December 2008 he had deemed himself unfit for work due to ill‑fitting dentures and having to cover his mouth at work when he spoke to avoid his lower denture falling out. He said he had two near misses. The plaintiff reported that his moods were stable, and Dr Obiri‑Boateng observed him to be euthymic.
In cross‑examination, counsel for the defendant put it to the plaintiff that this was the first time he raised with Dr Obiri‑Boateng any connection between his teeth and his capacity to work. He replied that he did not know (ts 96). Counsel for the defendant sumbitted the plaintiff seems to have recreated what occurred with his decision to cease work after the event, perhaps precipitated by the April 2009 incident at the nursing home (ts 212‑213). This explained why there were no records of him reporting that he had stopped work at the reviews earlier in 2009.
It appears that after his appointment with Dr Obiri‑Boateng, the plaintiff called a CMHN. The CMHN noted that the plaintiff appeared anxious and paranoid (TR 354). A follow up phone call the next morning revealed that the plaintiff was less anxious (TR 354).
The plaintiff saw a CMHN on 19 June 2009 (TR 355). The plaintiff reiterated his issues about his ongoing dental problems and the litigation. He expressed delusions about his wealth. He said that he did not think he was becoming manic. The CMHN observed that the plaintiff was preoccupied with his current law suit. His medication was increased, which seemed to help (TR 356).
The plaintiff saw Dr Obiri‑Boateng on 13 July 2009 (TR 358). He reported being pre‑occupied with his teeth all the time, and anxiety about this. He described the funding issues he was having with his treatment, and that he could not chew properly. He reported that maxillo facial surgery had been described to him and it was 'too scary'. The doctor observed him to be euthymic.
He was seen by the CMHN on 17 July 2009, who reported the plaintiff to be pre‑occupied with dental problems, but euthymic (TR 359).
The plaintiff was reviewed by Dr Obiri‑Boateng on 7 September 2009 (TR 359). He reported that his bi-polar moods were under control. He described anticipatory anxiety about his teeth falling out, and recounted the incident at the Maddington Nursing home when they did fall out. He said that he was nervous/ anxious about going to his sister's place for dinner, and that he was forced to stay at home. He reported that in his contract which finished in December, he had low self‑confidence working with children as he anticipated adverse comments about his broken teeth with the stumps showing. At this consultation, Dr Obiri‑Boateng's impression was that the plaintiff had demonstrated an acute anxiety state with an anticipatory component and avoidance behaviours due to the impact of the dentures embarrassing him in public.
In a review with Dr Obiri‑Boateng on 19 October 2009 (TR 360–361), the plaintiff described his fears and anxieties over his dental issues and his claim. He reported times in which he suddenly felt coldness in his head, as if all his energy was draining out. The doctor observed him to be euthymic apart from episodes of anxiety.
The plaintiff reported a panic attack in a review by a CMHN on 12 November 2009 (TR 361).
The plaintiff was reviewed by Dr Obiri‑Boateng on 30 November 2009 (TR 362). The plaintiff reported in some detail about his stress and anxiety with his dental issues and claim. The doctor reported the plaintiff believes 'if I can get my teeth fixed up I will be alright'. Dr Obiri‑Boateng noted him to be euthymic, but recorded a panic attack.
At medical review by Dr Obiri‑Boateng on 11 January 2010, the plaintiff again reiterated his feelings of anxiety about his teeth, including the bone graft operation he was to have in February 2010 (TR 363). He also reported death threats from someone over the phone with an Indian accent, which appeared to be delusional.
The plaintiff had a number of further reviews with Dr Obiri‑Boateng and CMHNs throughout 2010 and 2011. The tenor of these reviews is reports of ongoing stress, anxiety and preoccupation about his teeth and legal claim, but otherwise euthymic. He was able to discuss the fact that he had had delusions in the past in an interview with a CMHN on 1 August 2011 (TR 372). A review by another psychiatrist on 17 August 2011 suggested that his BPAD was in remission (TR 380). There is an unclear reference to paranoid delusions in the notes of this attendance (TR 380). The final reviews by Dr Obiri‑Boateng, and his opinions, are dealt with in par 194 to par 206 below.
In a review carried out by a CMHN on 8 November 2010, the author observed that the plaintiff was fixed on the problems regarding his 'facio maxillary problems', that he was distressed and anxious about this and that he was preoccupied and thought about little else (TR 343). He was referred for counselling and to Horizons Community Mental Health Rehabilitation Service for anxiety management ('Horizons').
The plaintiff went to England at the beginning of 2011 for 14 weeks to nurse his terminally ill father (TR 368, 369, 462). He re‑engaged with Horizons in June 2011 (TR 369, 416).
Staff at Armadale Hospital prepared a 'Client Management Plan' for the plaintiff for the period from 18 July 2011 ‑ 18 October 2011. It provides, in part (TR 333):
Has previously suffered Myocardial Infarction, upper epigastric bleeding and had teeth implants that are causing him serious concern. He has taken legal action against the dentist and the stress of this has prevented him from working for a considerable time, on DSP. Has borrowed money for remedial dental work. Situation has made him depressed and panicky at times.
From June 2011, the plaintiff attended Horizons on a weekly basis. As part of his rehabilitation program, he volunteered at a nursing home for one session a week, where he played the guitar (TR 331, 332, 462). Counsel for the defendant submitted that this suggested that as at mid 2011, the plaintiff was able to do some work, notwithstanding his anxiety. I disagree. The volunteering was part of his Mental Health Rehabilitation Plan, and is merely evidence that he actively working on his mental health rehabilitation, and as part of that, could volunteer a session a week, with the intent of increasing to two sessions a week.
Findings
The review of the plaintiff's treatment records is consistent with his evidence that he saw a psychiatrist about once a month while he was under the care of the AMHS, though on many occasions he saw a CMHN.
The plaintiff only objected to one statement in the treatment record being taken as evidence of the fact recorded (par 74). I noted another paragraph where there was 'double hearsay' (par 78). Aside from these two instances, pursuant to EA s 79C(2a), I find that:
(a)the plaintiff had consultations with the medical professionals as recorded in the treatment records I have summarised;
(b)the plaintiff had the hospital attendances as summarised from the treatment records; and
(c)the plaintiff had the symptoms he described to the medical professionals, and that they observed, as recorded in the treatment records I have summarised.
The plaintiff also said that other than his periods of hospitalisation, he never had any significant periods of unemployment. The extent of the plaintiff's periods of hospitalisation is thus relevant to the issue of his earning capacity. I have summarised the evidence of his admissions to hospital in the following table:
Date of admission Facility
Voluntary/
involuntary
Days admitted
Treatment Records Reference
1978
United Kingdom (facility unknown)
Unknown
Unknown
41
1996
‘MSC’
(Bentley Hospital?)
Unknown
Unknown
13, 385,
(also t/s 36)
27/9/2002 - 22/10/2002
Leschen Unit (Armadale)
Involuntary
26 days
23, 27, 32, 385
6/11/2002
Armadale clinic
Unknown
Unknown
8
3/11/2003- 4/11/2003
Bentley Hospital
Voluntary
1 day
8, 29, 37, 40, 51, 385
28/11/2003 – 1/12/2003
Armadale clinic
Voluntary
3 days
39- 42, 53-55
29/6/2006 – 11/9/2006
Armadale clinic
Involuntary
74 days
88, 243, 291
11/10/2007 – 23/10/2007
Armadale clinic
Voluntary
12 days
83, 303, 385
The expert psychiatric evidence tendered at the trial also deals with the issue of the impact of the plaintiff's BPAD on his capacity to work. As the plaintiff continued to work for some 18 months after he commenced treatment with the defendant, it is convenient to make specific findings on the medical evidence at a later point in these reasons in the context of the medical evidence as a whole. I make findings in relation to the impact of the plaintiff's pre‑existing BPAD on his work capacity in this context as well.
Plaintiff's prior employment history
Plaintiff's evidence
The plaintiff gave evidence that when he came to Australia in 1994, he found work as an upholsterer. His evidence was that he did not enjoy the production line style of the work he was required to do. He consequently moved into the aged care industry as a nursing assistant.
In order to facilitate his work in the aged care industry in around 1997 the plaintiff obtained a Certificate III, Personal Care Assistant (Aged Care) (FB 1).
Between June 1998 and December 2005, including while the plaintiff was studying, he worked as a nursing assistant in various nursing and private homes as a personal care assistant for frail and elderly clients.
In 2003, the plaintiff decided to commence a Bachelor of Nursing at Edith Cowan University. He completed this degree in the three years normally allocated to this degree. The plaintiff gave evidence he had no problems studying nursing between 2003 and 2005, though he found the exam is a 'bit stressful'.
The plaintiff then qualified as a registered nurse and then ultimately as a Level 2.1 Registered Nurse with the Department of Health.
Once qualified the plaintiff said he initially worked as a registered nurse at Royal Perth Hospital at the beginning of 2005. I have dealt with the cross‑examination on the reasons for leaving this job in par 39 above.
Between late 2006 and December 2007 he worked as a registered nurse with an agency by the name of Flex Health Services. His contract work at this time was still in the aged care industry.
I return to deal with the plaintiff's subsequent employment history later in these reasons (par 178 and following).
Documentary evidence
The plaintiff’s bundle of financial documents, includes income taxation returns for the financial years ending 30 June 2003 to 30 June 2009. These tax returns reveal the following pattern of earning:
| Financial year | Gross income | Tax | Net income | Net weekly income (whole year ave) |
| 2003 | $19,192 | $3105 | $16,087 | $309.63 |
| 2004 | $11,529 | $2107 | $9422 | $181.19 |
| 2005 | $10,495 | $1149 | $9546 | $179.73 |
| 2006 | $21,917 | $7268 | $14,649 | $280.71 |
| 2007 | $46,498 | $12,740 | $33,758 | $649.19 |
| 2008 | $49,112 | $11,645 | $37,467 | $720.51 |
| 2009 | $27,165 | $5,513 | $21,652 | $416.38 |
The return for the year ending 30 June 2006 records two different sources of income (FD 63). The first was for gross income of $14,716 with $5,536 tax retained. The second was for $7,201, with $1,732 retained. The identity of these sources is not in the material.
The return for the year ending 30 June 2007 records three different sources of income, though the names of the employers are not in the materials (FD 84).
The return for the year ending 30 June 2008 records four different sources of income, though the names of the employers are not in the materials (FD 104).
Findings
The cross‑examination of the plaintiff's work history focussed on the reasons why he ceased work at Royal Perth Hospital in early 2006. There was no challenge to overall chronology. I accept the plaintiff's evidence of the chronology of his work to the end of 2007. I also find that the plaintiff earned gross and net income as set out in his income taxation returns for the relevant financial years.
Dental treatment by the defendant in 2007
Plaintiff's evidence
The plaintiff gave evidence that prior to his consultations with the defendant, the plaintiff had about 20 of his own teeth in his upper and lower jaw. He had a two tooth partial plate fitted to the lower right‑hand side of his jaw. Shortly prior to attending on the defendant, one of the teeth that was the main anchor point of the partial plate needed to be extracted. The effect of the extraction of this tooth was to destabilise the partial plate.
The plaintiff saw an advertisement by the defendant stating that he did implants of teeth. As the defendant was in the locality of the plaintiff, the plaintiff decided to see him regarding an implant.
The plaintiff's first appointment with the defendant was on 20 February 2007. That was for the purpose of the discussion and examination. The plaintiff said that the defendant discussed with him the nature of anchor implants and the plaintiff was impressed with the defendant's level of skill and with what he was being told.
At this first visit, the plaintiff's evidence is that the defendant informed him that all his teeth would fall out very soon. He was advised that the 'way to go' was to have all his teeth removed and have implants. The plaintiff gave evidence that he was horrified to hear what the defendant said. His evidence was that he did not want to have dentures as he had worked in the aged care industry and had seen the impact of dentures on old people. His evidence was that one of the reasons why people in aged care have compromised lives is because of their inability to get the nutrition they need. He said that aged people do not like dentures and would lose them purposefully, resulting in an inability to eat and their health going downhill rapidly.
The plaintiff went away and thought about what the defendant had said and then decided to go along with the advice he had been given. He reasoned that he then had 15 years of work life remaining and that he could borrow the $70,000 quoted for the work and pay it back. In the end the plaintiff paid over $54,000 to the defendant.
On 11 April 2007 the plaintiff attended on the defendant and had all of his remaining teeth removed. The teeth were removed under general anaesthetic at the defendant's surgery whilst the plaintiff was in the dentist chair.
After the surgery the plaintiff was put in a car with a receptionist and a junior dentist from the defendant's practice and asked them to take him to a friend's house. At that stage he was still in a daze, was wobbly and could not stand upright, had gauze in his mouth and was bleeding profusely. He described it as a 'bit of a carnage' (ts 41 ‑ 42).
He was subsequently provided with dentures by the defendant. These had been made at some stage prior to the 11 April 2007 appointment. He was not able to wear the dentures as they were too painful.
On 30 April 2007 the plaintiff went back to the defendant's surgery. On that occasion the defendant inserted implants. Devices known as healing cups were inserted over the implants. These were metal devices that screw on to the implants to protect them.
The healing cups needed adjustment from time to time as they came loose. The plaintiff gave evidence that if he was lucky he could catch them in his mouth when they came loose, but he swallowed some of them. On each occasion this occurred he returned to the defendant.
The plaintiff was not able to eat normally with the dentures provided. It was painful to eat and he could not get a proper bite. He went back to the defendant to get the dentures adjusted.
On 27 June 2007 the plaintiff again attended on the defendant. On that occasion be plaintiff was sedated. The defendant constructed bridges to put in the plaintiff's mouth. The plaintiff gave evidence that the bridges began to break as soon as the plaintiff left the defendant's surgery. Teeth broke off the bridges. The plaintiff had to go back to defendant to have the bridges repaired.
The plaintiff gave evidence that the implant in his upper left jaw was loose and had always been loose.
The plaintiff was not able to eat properly with the bridges provided by the defendant.
The plaintiff attended on the defendant on 18 December 2007 for the purpose of the defendant installing new bridges. The plaintiff's evidence was that the defendant did not actually install bridges but rather put the same ones back in. That was the last occasion on which the plaintiff obtained treatment from the defendant.
All up the plaintiff saw the defendant over 20 occasions.
Cross‑examination
In cross‑examination, the plaintiff was asked to concede that he had poor periodontal health at the time he saw the defendant. The plaintiff said that he was not aware of that because the dentist he had seen shortly prior who had extracted his tooth had not mentioned anything like that to him (ts 72). The plaintiff did acknowledge that he had 13 teeth missing when he first attended on the defendant (ts 73).
The theme to the cross‑examination in relation to the plaintiff's engagement with the defendant was that he was an unreliable witness, with a tendency to limit his evidence so that it supported his case. The plaintiff was asked what else the defendant told him, and elaborated on the evidence he gave in examination‑in‑chief, in particular as to the defendant's efforts at self‑promotion. Counsel put to the plaintiff statements which Dr Gee recorded as having been made to him by the plaintiff. The first was that the plaintiff said that 'although Dr Shah had advised a periodontal referral, he understood that this was no longer required once he had made a decision to have his teeth removed' (MB 31). The plaintiff denied that he said this (ts 74). The second was that the defendant had advised the plaintiff to give up smoking, which the plaintiff accepted had been said (ts 75).
Counsel then put to the plaintiff that the defendant had offered him different treatment options, which the plaintiff denied (ts 75).
Findings
The defendant was not called to give evidence. The challenge to the plaintiff's reliability was primarily limited to statements made at the first appointment, and was then focussed on what the plaintiff did not say in examination in chief. I accept the plaintiff's evidence and make findings in terms of the plaintiff's account of his treatment by the defendant, with the addition that the defendant advised the plaintiff to give up smoking.
Remedial dental work
Plaintiff's evidence
From 2008 the plaintiff has been under the care of Dr Shepherd.
The plaintiff gave evidence that at the time he first saw Dr Shepherd he still had the bridges provided by the defendant. The upper bridge was broken and he had to hold it together with his tongue. He could not chew with this bridge.
Until June 2009 the plaintiff continued to use the bridges prepared by the defendant, with the bridges being repaired from time to time by Dr Shepherd until it became clear that those bridges could no longer work.
The plaintiff gave evidence that the implants provided by the defendant were ultimately removed. He then had a bone graft operation and six new implants.
The plaintiff gave evidence that the new implants are now at a stage where he is ready to have further prosthodontic work. He has not been able to have this work undertaken to date as he has had not had the money to pay for it.
Medical evidence
The medical evidence relating to the remedial prosthodontic work carried out on the plaintiff comes primarily from Dr Shepherd. Dr Shepherd's evidence is before the court in six reports in the bundle of medical reports, which I have noted, it was agreed that I should accept as the evidence‑in‑chief of the relevant witnesses Dr Shepherd gave further oral evidence. The evidence from Dr Shepherd which follows is drawn from both a combination of his reports and his oral evidence.
It is instructive to commence the analysis of the remedial work with the description given by Dr Shepherd in his oral evidence about the process of providing implanted supported prosthetics. Dr Shepherd described the process as comprising three stages of componentry. In the first stage, implants are placed into the jaw bones to act as a foundation. The implants 'osseointegrate' into the jaw bone. This refers to the process by which bone structure integrates chemically and adheres chemically to the implant. This gives it strength and stability.
In the second stage, abutments are screwed into the implants. The abutments act as the connector to the bridge. In some cases, such as the plaintiff's, the abutments had to be cemented into the implants.
In the third stage, a prosthesis it fitted. Usually, and in the plaintiff's case, this is a full arch prosthesis which includes 10 to 12 teeth. The full arch prosthesis is known as a 'bridge'. It is made of porcelain fused to an alloy structure. The bridge is cemented over the abutment.
Dr Shepherd first saw the plaintiff for an initial consultation on 8 May 2008, with further assessment and diagnostic work being carried out on 12 May 2008.
Initially Dr Shepherd carried out repairs on the implants and bridges put in place by the defendant and sought to address inflammation with a particular implant. Dr Shepherd described this as a mixture of treatment and maintenance. However, it became apparent towards the end of 2008 that this approach was insufficient, in particular as the upper bridge kept falling out, and thus compromised the plaintiff cosmetically and functionally.
Dr Shepherd referred to the plaintiff to Dr Brent Allan, an oral and maxillofacial surgeon. Dr Allan's evidence also came before the court in a series of reports tendered by consent.
Dr Allan first saw the plaintiff on 6 October 2008. At this consultation, Dr Allan explained the extent of the surgery required and the fact that it would take some time as his mouth needed to heal between operations (MB 67, 79 ‑ 80). On Dr Allan's advice, the plaintiff agreed to a series of three operations, with time in between for healing. Drs Shepherd and Allan then coordinated their work.
Dr Shepherd then carried out what he described as 'control phrase treatment' (MB 55, 58). In December 2008, he removed the upper bridge provided by the defendant and abutments, and provided a provisional acrylic bridge which was supported by the 4 anterior implants in the upper jaw (being implants inserted by the defendant). The provisional bridge was a six tooth bridge. The two implants in the molar region of the upper jaw were left exposed so that they could later be removed by Dr Allan without the need to remove the whole upper bridge.
At that stage (the end of 2008), the plaintiff kept going with the lower bridge that was provided by the defendant. There were ongoing issues with the lower bridge through out the beginning of 2009. In May 2009 Dr Shepherd removed the lower bridge provided by the defendant and replaced it with an acrylic provisional bridge, though using the defendant’s implants. However, there were ongoing problems with the provisional bridge in the lower jaw, caused in part by the inadequate placement of the implants by the defendant.
On 6 August 2009, a decision was made between Dr Shepherd and the plaintiff not to have a provisional acrylic bridge in the lower jaw. This was in part due to the ongoing issues with the lower bridge and in part because of the impending surgery. The plaintiff could then only rely on the lower jaw abutments to obtain any chewing function.
The first operation by Dr Allan took place on 25 August 2009. Dr Allan removed the implants at the 1 ‑ 6, 2 ‑ 6, 3 ‑ 6 and 4 ‑ 6 sites (MB 69, 77, 78). He also removed the plaintiff's wisdom tooth (at site 3 ‑ 8).
Dr Shepherd explained the numbering system used, and provided a chart (Exhibit P4). The first of the two numbers refers to the quadrant of the mouth – 1 being the upper right, 2 being the upper left, 3 being the lower left and 4 being the lower right (left and right being orientated by from the patient’s perspective). The second number identifies the tooth. In each quadrant, the front tooth is '1' and the other teeth are then numbered consecutively towards the back of the mouth to '8'. Thus the tooth at '3 – 8' is the tooth closest to the back to the mouth (wisdom tooth), on the bottom left hand side of the patient’s mouth as the patient would describe it.
X-rays of the plaintiff's mouth (after he had seen the defendant) undertaken by Dr Shepherd showed that implant at 2 ‑ 6 was sitting in the sinus, and was not connected to the upper bridge. This was one of the implants removed by Dr Allan, who also closed the hole between the jaw and the sinus.
The second operation took place on 2 February 2010 (MB 70, 77). The timing of this surgery was planned to allow sufficient healing from the first surgery. In this operation, Dr Allan carried out a bone graft to support the jaw in the region of the sinuses, being the 1 ‑ 5 to 1 ‑ 8 and 2 ‑ 5 to 2 ‑ 8 sites (that is, the rear of the upper right and left jaw). Dr Allan also placed implants at the 3 ‑ 2 and 4 ‑ 2 sites (lower jaw, towards the front). He observed in his report to Dr Shepherd of 3 February 2010 that, as at that date, it was not yet suitable to place implants in the maxilla (upper jaw) and that the plaintiff would require a further five months of healing prior to that occurring (MB 70). This accorded with the initial plan agreed with the plaintiff.
The third surgery took place on 21 July 2010 (MB 72). In this surgery, Dr Allan inserted implants in the 1 ‑ 6 and 2 ‑ 6 sites (upper jaw, left and right, towards the back).
The plaintiff requires no further surgery with Dr Allan. The remaining work is prosthodontic, to be undertaken by Dr Shepherd.
The final phrase of the remedial treatment is yet to occur. This is described by Dr Shepherd as the 'prosthetic reconstructive phrase' (MB 59). In this phrase three main tasks will be undertaken:
(a)construct a porcelain fuse to gold alloy prosthesis on implants in the upper jaw (maxilla);
(b)construct an occlusal splint to protect this prosthesis; and
(c)construct a hybrid‑titanium resin bridge on the lower implants to compete functional and cosmetic rehabilitation.
In a report dated 15 December 2011, Dr Shepherd dealt with the issue of timing of the remedial dental work, which he referred to as oral rehabilitation (MB 1). His evidence was that the oral rehabilitation needs to be provided over a long time frame due to a number of complicated variables associated with the plaintiff's case. These variables include:
(a)extreme parafunctional activity, whereby the plaintiff generates large forces that cause rapid breakdown of his teeth unless well managed;
(b)psychological concerns regarding the form and durability of the dental reconstruction; and
(c)difficult positioning of the implants in the maxilla which will require careful management to ensure longevity of the implants and the final prosthesis.
Consequently, Dr Shepherd was of the view that the rehabilitative process will take at least a year and will require multiple provisional restorations 'to ensure acceptance, function and durability' (MB 1).
Dr Shepherd gave evidence that when his prosthetic treatment of the plaintiff is complete this should have an effect on the his speech. He expected there will be improvement in his speech. He was unable to say whether he would improve the plaintiff's speech to the level at which it was prior to the treatment by the defendant, because he did not know that pre‑treatment level.
Dr Allan's surgery dealt with the issue of the implant at 2 ‑ 6 sitting in the sinus, thus resolving this issue.
Findings
Neither Dr Shepherd nor Dr Allan were cross‑examined. The plaintiff's evidence is consistent with their evidence, though in more general and summary terms. I find that the plaintiff's remedial dental work to date has been undertaken in the manner I have described in summarising the evidence of Dr's Shepherd and Allan.
Dr Gee provided a medico-legal report dated 22 November 2010 (MB 27). He did not carry out any treatment or surgery on the plaintiff, and only saw him on one occasion. He was not called nor cross‑examined. It is not necessary to rely on this report as it mainly addresses the issue of liability. Dr Gee does, however, agree with the approach to be taken by Dr Shepherd in the reconstructive phase of the remedial work. He also stated that he believed that 'the prognosis is very good and that Mr Banerjee should be able to be restored to full oral function and comfort' (MB 34).
At the commencement of the trial, counsel for the defendant advised that those standing behind the defendant would pay for the remedial work to be undertaken as soon as this is able to occur. In other words, the plaintiff did not have to wait until judgment was given, and paid out, in the action before commencing remedial work.
As I have noted, Dr Shepherd’s evidence is that the remedial work will take about a year to complete. It was agreed between counsel that I should proceed on the basis that the remedial work proposed will be completed by the end of March 2013. I make this finding.
I further find that if the remaining remedial dental work is carried out by Dr Shepherd as proposed, the plaintiff will be in substantially the same position he would have been in, from a prosthodontic perspective, had the work undertaken by the defendant been carried out with due care. The plaintiff will have the eating difficulties inherent with prosthetic dentures and his clenching and grinding, but he would have had them in any event. As I understand it the sinus issue was resolved. The speech–lisp and diction - issues will resolve. The aesthetic issues will resolve, at least to the same level as if the work had initially been done with due care.
Impact of the negligent dental work – physical and social
The total award for future economic loss is $70,524.
Contingencies
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.
Past loss of superannuation
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 = $167,168
Loss 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.
Future loss of superannuation
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 = $63,088
Loss of superannuation: $63,088 x 9% x 85% = $4,826
I award $4,826 in respect of future loss of superannuation.
Summary of damages awarded
In summary terms, I assess damages as follows:
General damages
$80,000
Past economic loss
$148,112
Loss of superannuation – past
$13,996
Future economic loss
$70,524
Loss of superannuation – future
$4,826
Other heads (agreed)
$84,000
Total
$401,458
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