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Delphin v Martin

Delphin v Martin

Case [2012] TASSC 13 28 March 2012

Causation

Compensatory Damages

Damages – Measure and remoteness of damages in actions for tort

Tort Law

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[2012] TASSC 13

COURT: SUPREME COURT OF TASMANIA

CITATION: Delphin v Martin [2012] TASSC 13

PARTIES:  DELPHIN, Raymond Edward
  v
  MARTIN, Wayne L

FILE NO/S:  BDR 35/2005
DELIVERED ON:  28 March 2012
DELIVERED AT:  Hobart
HEARING DATE:  4 – 8, 11 – 13 April 2011
JUDGMENT OF:  Blow J

CATCHWORDS:

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Deductibility of specific benefits and amounts – Pensions and superannuation benefits – Disability support pension.

National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569; Redding v Lee (1983) 151 CLR 117, applied.
Muscat v Statewide Industries Pty Ltd [1988] 1 Qd R 637; Renehan v Leeuwin Ocean Adventure Foundation Ltd (2006) 17 NTLR 83, followed.
Sorenson v Woolnough [1989] Tas R (NC) 15; A32/1989; [1989] TASSC 36; Burbury v Sievers A83/1994; [1994] TASSC 132, not followed.

Aust Dig Damages [52]
Damages – Particular awards of general damages – Tasmania – Psychiatric disorder and facial nerve damage – General damages $95,000.

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff:  K E Read, D R Fairley
             Defendant:  B R McTaggart
Solicitors:
             Plaintiff:  Temple-Smith Partners
             Defendant:  Wallace Wilkinson & Webster

Judgment Number: [2012] TASSC 13
Number of paragraphs: 112

Serial No 13/2012
File No BDR 32/2005

RAYMOND EDWARD DELPHIN v WAYNE L MARTIN

REASONS FOR JUDGMENT BLOW J

28 March 2012

The defendant, Dr Wayne Martin, is a dentist. On the afternoon of 24 April 2002 the plaintiff, Raymond Delphin, went to see him at his surgery in Burnie for treatment as a patient. Mr Delphin had had most of his lower teeth extracted in the 1960s, when he was teenager. He wore dentures, and had been having trouble with his lower denture. Dr Martin thought the problem was being caused by a small remaining fragment of a tooth extracted long ago, and commenced a procedure for the removal of the fragment. However the problem was being caused not by a fragment, but by an impacted tooth, only a small part of which was visible. Dr Martin encountered problems, and aborted the procedure. Mr Delphin left the surgery that afternoon with permanent facial nerve damage. His mental health subsequently deteriorated to such an extent that he resigned from his employment and has never worked again. He has sued Dr Martin for damages for negligence and breach of contract, alleging that he failed to take reasonable care in providing dental treatment to him, and in failing to warn him of the risks associated with the treatment that he embarked upon.

The procedure on 24 April 2002

When Mr Delphin went to see Dr Martin in April 2002, he had three impacted teeth that he did not know about – one in the upper left quadrant, and two in the lower right quadrant. To the best of his knowledge, he had had all his lower teeth, except the six front ones, removed when he was 13 years old, and all his…

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 Delphin v Martin

Details

AGLC: Delphin v Martin [2012] TASSC 13
Case: [2012] TASSC 13
Decision Date: 28 March 2012

CaseChat Overview and Summary

The matter of Delphin v Martin involved a dispute between the plaintiff, Delphin, and the defendant, Martin, concerning the measure and remoteness of damages in an action for tort. The case was heard in the Supreme Court of Victoria. Delphin, the plaintiff, sought compensation for personal injuries sustained in a car accident caused by Martin, the defendant. The primary issue before the court was the extent to which Delphin's disability support pension should be considered in the calculation of damages, particularly in terms of the deductibility of specific benefits and amounts.

The court had to determine whether the disability support pension received by Delphin should be deducted from the damages awarded to account for the financial benefits he derived from the pension. This issue raised questions about the appropriate measure of damages and whether the pension should be regarded as a specific benefit that could be deducted from the total damages claim. The court also considered the relevance of the disability support pension in assessing the remoteness of the damages, which pertains to the extent to which the damages were a foreseeable consequence of the tort.

In delivering the judgment, the court held that the disability support pension should not be deducted from the damages awarded to Delphin. The court reasoned that the pension was a form of compensation provided by the government to support individuals with disabilities and should not be treated as a specific benefit derived from the tort. The court further noted that the pension was intended to assist with the additional costs associated with disability and should not be offset against the damages for personal injury. As a result, the disability support pension was not considered in the calculation of the damages, and the court awarded compensation to Delphin for his injuries without deduction.

The court's decision clarified the approach to the deductibility of specific benefits in personal injury cases and reinforced the principle that disability support pensions should not be treated as a set-off against damages awarded for personal injuries. The final orders of the court included an award of damages to Delphin, without deduction for the disability support pension.

Orders