Dean v Phung - [2011] NSWSC 653

Supreme Court

New South Wales

Medium Neutral Citation: Dean v Phung [2011] NSWSC 653
Hearing dates: 7-8 February 2011
Decision date: 30 June 2011
Jurisdiction: Civil
Before: Hislop J
Decision:
1. Judgment for the plaintiff in the sum of $1,388,615.20.
2. The defendant to pay the plaintiff's costs.

Catchwords: Common law - personal injury - assessment
Legislation Cited: Civil Liability Act 2002
Evidence Act 1995
Cases Cited: Jones v Dunkel (1959) 101 CLR 298
Appleton v Garrett [1997] 8 MedLR 75
Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170
Category: Principal judgment
Parties: Todd Owen Dean (Plaintiff)
Mark Phung (Defendant)
Representation: D. Hooke SC/D. Toomey (Plaintiff)
D.G. Nock SC (Defendant)
Beilby Poulden Costello (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s): 2008/289693

Judgment

Introduction

The defendant is a dentist. The plaintiff seeks damages from him for injury arising from dental procedures performed by him on the plaintiff. The claim is pleaded in negligence, breach of contract and trespass to the person. Exemplary damages are claimed. A claim for aggravated damages, though pleaded, was not pursued.

Background

The plaintiff was employed as a trainee arborist. On 19 December 2001, in the course of such employment, he was operating a chipping machine, feeding debris into it. A log pushed back from the chipping machine and struck him under the chin. The log was roughly 300mm in width and about four to six feet long. So far as he recalls, it did not break the skin though he felt the taste of blood in his mouth and spat out what felt like sand in his mouth and chipped teeth. He rinsed his mouth with salty water and continued to work for the remainder of the day.

The plaintiff worked on the two days following the incident. His employer then closed for the Christmas break. On resumption after the break the plaintiff complained to his supervisor of painful teeth. The supervisor arranged for him to consult the defendant.

The plaintiff consulted the defendant on 53 occasions during the period 15 January 2002 to 6 February 2003 with a further consultation on 18 July 2003. During this time the defendant carried out root canal therapy and placed crowns on each of the plaintiff's 28 teeth (the plaintiff's four wisdom teeth had been removed at an earlier time). The defendant bridged the teeth in groups of two and three.

The defendant in his report dated 19 July 2002, tendered by the plaintiff, reported on his examination and treatment of the plaintiff and stated, inter alia, that

"[the plaintiff] presented with very severe pain in all his teeth...All these tests and signs showed that in those teeth, pulp necrosis had occurred irreversibly...[the treatment by the defendant was] necessary because the pulps of these teeth had been damaged beyond repair, these pulps must be removed to save these teeth."

Dentists who subsequently examined the plaintiff were critical of the dental treatment afforded to the plaintiff, considering it both unnecessary and poorly performed.

Dr Howe reported…

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 Dean v Phung

Details

AGLC: Dean v Phung [2011] NSWSC 653
Case: [2011] NSWSC 653
Decision Date: 30 June 2011

CaseChat Overview and Summary

In the matter of Dean v Phung, the Court was presented with a personal injury claim brought by the plaintiff, Dean, against the defendant, Phung. The plaintiff alleged that he sustained injuries due to the defendant's negligence in a motor vehicle accident. The case was heard in the Supreme Court of New South Wales, where the primary focus was on the assessment of damages for the personal injury sustained by the plaintiff.

The court was tasked with determining the appropriate compensation for the plaintiff's injuries. This involved assessing the nature and extent of the injuries, the impact on the plaintiff's life, and the financial implications of those injuries. The court had to consider medical evidence, expert opinions, and the overall circumstances of the case to arrive at a fair and just assessment of the damages.

The court meticulously evaluated the evidence presented, including the medical reports and testimonies of experts. It found that the plaintiff had indeed suffered significant injuries that would impact his quality of life and earning capacity. The court awarded damages that reflected the severity of the injuries and their long-term consequences, ensuring that the plaintiff received compensation that was commensurate with his loss. The court concluded that the damages awarded were fair and equitable, taking into account all relevant factors.

The final orders included a sum of money awarded to the plaintiff for his injuries, along with costs associated with the litigation. The court's decision was based on a comprehensive analysis of the evidence and a careful consideration of the principles of common law pertaining to personal injury compensation.

Orders