Denyer v N Istekli and M Mertoglu (a firm)
[2018] ACTMC 8
•9 May 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Denyer v N Istekli & M Mertoglu (a firm) |
Citation: | [2018] ACTMC 8 |
Hearing Date: | 3 May 2018 |
DecisionDate: | 9 May 2018 |
Before: | Magistrate Theakston |
Decision: | The judgment for the plaintiff is to be in the amount of $20,140. |
Catchwords: | DAMAGES – Assessment – Personal injury – Tattoo removal |
Cases Cited: | Del Ponte v Del Ponte (1987) 11 NSWLR 498 Dryden v Bowditch [2008] ACTSC 131 Pavic v ACT [2007] ACTSC 95 Pozgay v EJ O’Connor & Sons and Anor [2000] ACTSC 59 |
Parties: | Joseph William Denyer (Plaintiff) N Istekli & M Mertoglu (a firm) (Defendant) |
Representation: | Counsel Mr D Crowe (Plaintiff) No appearance (Defendant) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) No appearance (Defendant) | |
File Number: | CS 122 of 2017 |
MAGISTRATE THEAKSTON:
Background
This matter involves a failed attempt to remove a tattoo. The defendant partnership traded as Universal Laser and Skin Clinic.
While the defendant was initially represented and entered a defence, the defendant’s lawyers ultimately withdrew and the defendant took no further part in the proceedings. Consequently, a deputy registrar struck out the defence and entered judgment for the plaintiff. The matter then came before me for the assessment of damages.
The plaintiff gave evidence, and I accept he was a witness of truth.
Many years ago the plaintiff had the given name of his then wife tattooed onto his upper right arm. That relationship subsequently ended and later the plaintiff married his current wife. The tattoo was a source of robust conversations between the plaintiff and his current wife. In mid-2014, the plaintiff decided to have the tattoo removed. He conducted internet research about the available options and ultimately attended upon the defendant for that purpose.
The plaintiff initially underwent three 20 minute sessions over a period of three months where the defendant applied laser treatment to the letters within the tattoo, leaving the border untouched. The treatment was very painful and for days thereafter left the site painful and very sensitive to touch. The plaintiff described the results at that time as being similar to the appearance of the tattoo today. That is, the name is still very visible, with the letters now almost white in contrast to the surrounding skin. There is also mild raised scarring.
Following the initial treatment, the defendant conducted 15 more treatments to the area, 10 by way of laser and five where the skin was scrapped until it bled. The plaintiff described this second series of treatment as more painful than the first, as the power of the laser was increased, and the scrapping procedure was inherently more painful than the laser treatment. I understood that each treatment again took approximately 20 minutes, and was followed by discomfort similar to that which he had experienced before. This series of treatment occurred over a period of 18 months until the plaintiff lost confidence in the defendant.
On six occasions the treatment occurred on Saturdays and the plaintiff was too uncomfortable to attend his second job with Comcar the following day. On each occasion he forwent net earnings of $600 and the associated accumulation of superannuation.
Following the second series of treatment the plaintiff obtained advice from a plastic and reconstructive surgeon. That process cost the plaintiff $360, and the plaintiff was advised that the appearance would not improve over time and further laser treatment would not assist. The tattooed skin could be excised, but that would result in the scarring of the skin.
Before commencing the treatment, the plaintiff was not advised of a risk that the treatment may create the result that it did. If he had been so advised, he would not have proceeded with the treatment.
The plaintiff indicated that the tattoo now appears worse than it did before the treatment. I observed the plaintiff’s arm while he was in the witness box and note that the letters are still readily visible. The plaintiff is self-conscious of the appearance of the site, which now attracts more attention than it originally did. He feels emotional and embarrassed when the site is pointed out by others, and irritated that he needs to explain what occurred. He is reminded of these issues every morning when he sees the site when shaving.
A medico legal report from a hand and plastic surgeon, confirmed that the appearance and scarring of the tattoo were stable and will not change substantially in the future. The report noted that each letter is readily visible and readable due to the distinct colour contrast against the adjacent and normally coloured pink skin. It indicated that further laser treatment would not improve the appearance of the site and that while surgical excision was possible, it would leave a readily visible scar of approximately 13cm in length, which may widen over time.
The plaintiff indicated that he had no plans to have the remnants of the tattoo surgically removed. He is now 53 years old. There was no suggestion that the site will cause the plaintiff any future physical discomfort.
Damages
I will award the plaintiff $350 for past out of pocket expenses and $4,000 for the loss of income and associated superannuation arising from him missing six shifts with Comcar.
In relation to general damages, in Del Ponte v Del Ponte (1987) 11 NSWLR 498 at 506, Priestly JA stated:
In assessing damages where cosmetic matters are relevant, the courts can only deal with the facts as they emerge in the particular cases before them and do their best with such factual material as is available in regard to seeing into the future. In doing this the courts must evaluate as best they can the effect of injuries on individual plaintiffs for the present and the future on such material as is then available to them, including matters which are within their own general experience.
In Pozgay v EJ O’Connor & Sons and Anor [2000] ACTSC 59 at [23], Master Connolly, as he was then, observed in the context of assessing damages for facial scarring:
I must consider the impact of the injuries on the plaintiff – that is to say I must consider the subjective experience of the plaintiff, and not consider what would be the impact of the present injury on some objective ‘reasonable’ man or woman.
In the present case, the plaintiff is a 53 year old man, who underwent a prolonged and painful set of cosmetic procedures that he would not have otherwise experienced but for the failure of the defendant to warn him that the ultimate outcome was possible. The treatment yielded a result that the plaintiff is self-conscious about, and causes him periodic embarrassment when commented on by others. However, the disfigurement is on a part of his body that is usually covered, even in warmer weather. The disfigurement is also at the same site as a previous tattoo that had a history of triggered relationship difficulties.
In contrast to the circumstances in Dryden v Bowditch [2008] ACTSC 131 and Pavic v ACT [2007] ACTSC 95 the disfigurement is not on a part of the body that would be difficult to hide and or be of particular interpersonal significance, such as on the face or hands. Additionally, the plaintiff is clearly not of an age that would mean the disfigurement could cause him social difficulty during stages of his life where he may be particularly vulnerable to comments by others, such as during his childhood or adolescent years.
Counsel for the plaintiff submitted that $25,000 would be an appropriate amount for general damages. That figure seems to me to be high, having regard to the above features of this case and the comparative decisions of Dryden and Pavic. I assess general damages at $15,000. The plaintiff’s past pain and suffering is a major component of general damages and I therefore apportion the assessment at 67% for the past and 33% for the future. Accordingly, I award $780 for interest on the general damages.
Therefore the components of damages are:
(a)General damages $15,000
(b)Interest thereon $780
(c)Past out of pocket expenses $360
(d)Past wage loss $4,000
(e)Total $20,140
Order
The judgment for the plaintiff will be in the amount of $20,140.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston. Associate: Sam Lynch Date: 9 May 2018 |
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