Hammond v Blackstock

[2023] NSWDC 51

District Court

New South Wales

Medium Neutral Citation:

Hammond v Blackstock [2023] NSWDC 51

Hearing dates:

21 February, 1 & 8 March 2023

Date of orders:

10 March 2023

Decision date:

10 March 2023

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the amount of $1,378,241.70;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Pursuant to s 98 and s 99 of the Civil Procedure Act 2005 (NSW), at the time the plaintiff’s solicitor renders his bill of costs to the plaintiff he is required to file a certificate with the Court file evidencing the fact that he has not charged the plaintiff any professional fees for the wasted listing of the matter on 21 February 2023;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – professional negligence – medical – cosmetic surgery – damages claim against medical practitioner concerning adverse results from breast augmentation surgery; DAMAGES – assessment of heads of damage claimed by plaintiff

Legislation Cited:

Civil Liability Act 2002 (NSW), s 13, s 15, s 16

Civil Procedure Act 2005 (NSW), s 14, s 98, s 99

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Penrith City Council v Parks [2004] NSWCA 201

State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

Category:

Principal judgment

Parties:

Kristen Hammond (Plaintiff)
Leslie Blackstock (Defendant)

Representation:

Counsel:
Mr A Campbell (Plaintiff)
No appearance by the defendant

Solicitors:
Gerard Malouf & Partners (Plaintiff)
No appearance by the defendant

File Number(s):

2018/135513

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Procedural context and issues	[2]
Evidence overview	[3]
Facts	[4] – [45]
Plaintiff’s background circumstances	[5] – [9]
Consultation with Dr Blackstock	[10]
Operation by Dr Blackstock on 28 September 2016	[11] – [13]
Post-operative problems	[14] – [19]
Medical treatment	[20] – [24]
Review by Dr Min Fee Lai, consultant plastic surgeon	[25] – [32]
Review by Dr Robert Kaplan, consultant psychiatrist	[33] – [35]
Disabilities that remain	[36] – [45]
Assessment of damages	[46] – [85]
Disposition & costs	[86]
Orders	[87]

Nature of case

1. The plaintiff, Mrs Kristen Hammond, claims damages for professional negligence against Mr Leslie Blackstock, a former medical practitioner, in respect of breast augmentation surgery he performed on her whilst still a registered medical practitioner. He performed that operation on Wednesday 28 September 2016, at his consulting rooms at a house in Woodriff Street, Penrith, NSW.

Procedural context and issues

2. In the absence of any appearance by the defendant, or any other litigation activity on his part, a default judgment has been entered in favour of the plaintiff, leaving the remaining question of damages to be assessed. The proceedings were listed for hearing on 21 February 2023. The matter could not proceed on that day due to procedural failures on the part of the plaintiff’s solicitor which necessitated an adjournment. Following a further interlocutory listing on 1 March 2023, those procedural failures were remediated so that the assessment could proceed. That hearing proceeded on 8 March 2023. The proceedings are governed by the Civil Liability Act 2002 (NSW) (“CL Act”). At the hearing it was made clear to the plaintiff’s legal representatives that the plaintiff was not to have those wasted costs visited upon her because her solicitor had been at fault.

Evidence overview

3. The plaintiff tendered a Court Book which was marked Exhibit “A”. It contained relevant reports from two medico-legal assessors, relevant photographs and details of out-of-pocket expenses. A supplementary bundle was marked Exhibit “B”. The Court Book included a statement from the plaintiff dated 16 February 2023. That statement was supplemented with an affidavit from the plaintiff sworn on the morning of the hearing together with some further photographs which portray something of the scarring and the surgical sequelae of which the plaintiff complains: Exhibit “C” and Exhibit “E”. In the circumstances of the defendant’s non-appearance, in order to facilitate a quick and just assessment, I dispensed with the need to serve a sealed copy of that material on the defendant: s 14 of the Civil Procedure Act 2005 (NSW). The plaintiff and her husband gave oral evidence which I found to be entirely credible and compelling.

Facts

4. The factual circumstances relevant to the assessment of the plaintiff’s damages are as follows.

Plaintiff’s background circumstances

5. The plaintiff is presently aged 31 years. She successfully undertook tertiary training in order to become a registered nurse. She pursued that career until the occurrence of the events which are the subject of these proceedings. Presently, she cannot and does not work in paid employment as a nurse.

6. The plaintiff’s background was that she had a difficult early life which led to some attachment issues. Her parents were unsuitable and for a while she lived in a refuge. She was cared for by strict grandparents. She regarded them as her real parents. It was against that background that the plaintiff encountered mental health problems which were ultimately defined as PTSD and a borderline personality. Notwithstanding the described difficulties of the plaintiff’s early years she successfully completed her nursing training without difficulty. She married at age 19 years. She has had three children, they are aged 9, 12 and 15 years. Despite her earlier difficulties she lived a relatively stable and successful life.

7. In 2012, the plaintiff was diagnosed with Crohn’s disease and Barrett’s oesophagus. Those gastrointestinal conditions were being well managed and did not impede her ability to work in her chosen career. She explained that those conditions were capable of being aggravated by stress, which is what she has encountered post-operatively due to the substandard and damaging treatment provided to her by Dr Blackstock.

8. Before she was operated upon by Dr Blackstock she was earning $950 per week net as a registered nurse in a local hospital, where she nursed orthopaedic patients and patients in the emergency department. She enjoyed that work and found it professionally fulfilling. She was looking forward to pursuing and advancing her nursing career as far as she could until the conventional retirement age of 67 years.

9. The plaintiff is of slight build and she has a quiet and thoughtful disposition. She explained that after having three children, she felt her breasts had changed in appearance. She decided that she wanted to have breast augmentation surgery to improve the appearance of her breasts and to improve her self-esteem. It appears from her evidence, and that of the expert psychiatric evidence, that those pre-operative thoughts were the origins of her feelings of body dysmorphia. It was for those reasons that she consulted Dr Blackstock to seek surgery for breast augmentation.

Consultation with Dr Blackstock

10. Following the birth of her children the plaintiff wanted to increase her breast size from A or B-cup to C-cup size. She also wanted her breasts lifted. When she consulted Dr Blackstock about breast augmentation surgery he reassured her that her underlying Crohn’s disease would not be adversely affected by the surgery he recommended. Dr Blackstock persuaded her to have breast implants of a slightly larger than size C-cup.

Operation by Dr Blackstock on 28 September 2016

11. On 28 September 2016, at the age of 23 years, Dr Blackstock operated on the plaintiff at his Penrith premises, which could not be described as a standard operating theatre.

12. The procedure was performed under sedation. The plaintiff was aware of much of what was happening to her. Initially, she felt severe pain when the first cut was made. Dr Blackstock then paused the procedure and he had to wait some minutes before continuing after the anaesthesia became more effective.

13. During the operation the plaintiff became aware of the smell of burning flesh and a scraping sensation on her chest. She described that sensation by equating it to a xylophone being played on the ribs of her chest wall. Remarkably, Dr Blackstock sat her up during the operation for her to see his partly completed work. In those events she saw her surgically lacerated breasts. That was a disturbing and distressing experience for the plaintiff.

Post-operative problems

14. Initially, the plaintiff was relieved that the procedure had been completed. She did not immediately become aware that her implanted breasts were over-sized because her chest had been tightly bound with bandages.

15. On the following day, at home she found herself to be in “suffocating” pain. Apparently, the large and disproportionate size of the implants caused some interference with her breathing. She rang Dr Blackstock who advised her this was normal. She later rang him again to tell him she thought she had a wound infection. He declined to speak to her directly, and his staff member told her to see her general practitioner. She saw her general practitioner who prescribed antibiotics.

16. A few days post-operatively whilst taking antibiotics, the plaintiff travelled overseas with her husband on a pre-arranged holiday. She struggled with severe pain during that trip. She noticed that instead of the swelling of her breasts settling down post-operatively as Dr Blackstock had told her, her breasts were “incredibly unnatural looking” and the surgical wounds remained infected. She also noticed that her breast size had become F-G-cup sized rather than C-cup. She found that her breasts were so large she could not bend over without experiencing excruciating pain due to the size of the implants. She was extremely upset by those circumstances.

17. The plaintiff’s post-operative psychological distress continued to the point that she found that she could no longer work as a nurse, both because of her discomfort and distress as a result of what had happened to her, and because she had developed a feeling or a belief that she could no longer be a cog in the wheel of a system where, unknowingly, patients whilst in her care, could be harmed, as she had been.

18. Whilst the latter concern may by some be thought to be irrational, I do not consider that to be so when viewed subjectively, from her damaged perspective.

19. As a result of her post-operative difficulties, the plaintiff’s earning capacity as a nurse has been destroyed. Consequent upon her realisation of that fact, in 2022 she decided not to renew her nursing registration.

Medical treatment

20. The plaintiff’s concerns over her post-operative problems have continued to bother her until the present time. In 2018 she sought out remedial medical assistance.

21. On 12 May 2018, the plaintiff saw Dr Knight, a plastic surgeon for remedial advice. Under general anaesthetic, he surgically removed the implants Dr Blackstock had inserted and in doing so he noted many incorrect elements that were evident within the procedure Dr Blackstock had carried out.

22. Dr Knight’s surgery provided the plaintiff with some interim relief. As a result, she has less pressure on her chest, she is now able to breathe more easily and was able to move about more freely, including being able to use her arms above her head, to an increased degree.

23. The remedial surgery in May 2018 was of an interim nature. The plaintiff still faces a series of further operative procedures that must be spaced out over time, aimed at ameliorating the damage caused by the surgery Dr Blackstock had performed on her. Plainly, those procedures will expose the plaintiff to significant further trauma, and distress and discomfort.

24. For the purpose of these proceedings, the plaintiff has been reviewed for medico-legal purposes as follows.

Review by Dr Min Fee Lai, consultant plastic surgeon

25. On 30 April 2018, at the request of her solicitor, the plaintiff was examined by Dr Min Fee Lai, a consultant plastic and reconstructive surgeon.

26. Dr Fee Lai stated that in his opinion Dr Blackstock’s surgery was not in accordance with what was considered as being competent peer professional practice that is widely accepted in Australia. I infer from this that plainly, the treatment was negligent.

27. Dr Fee Lai was highly critical of the conditions under which the plaintiff’s breast surgery was carried out in conditions where the supposedly sterile field was breached when the surgical drapes moved at the time the plaintiff, whilst sedated, was sat up half-way through the procedure. He described this process as being fraught with issues.

28. Dr Fee Lai was critical of Dr Blackstock’s surgical technique and his after care of the plaintiff, particularly regarding his inappropriate and inadequate management of the plaintiff’s post-operative infection.

29. Dr Fee Lai ascribed the plaintiff’s problems as being due to a lack of appropriate training and expertise on Dr Blackstock’s part. I also infer from this that Dr Blackstock was plainly negligent.

30. Dr Fee Lai assessed the plaintiff’s left breast as having a Baker Grade IV capsule as a result of the augmentation procedure undertake by Dr Blackstock. This has a poor prognosis.

31. Some of those problems have lessened following Dr Knight’s operation on the plaintiff in 2021: Plaintiff’s statement dated 16 February 2023.

32. Dr Fee Lai considered the plaintiff’s future remedial treatment outlay would be of the order of $95,000. This is for removal of implants, capsulotomies, staged repairs to anatomical structures, and correct re-implantation, all of which amounts to major surgeries.

Review by Dr Robert Kaplan, consultant psychiatrist

33. On 14 January 2021, at the request of her solicitor, the plaintiff was assessed by Dr Robert Kaplan, a consultant forensic psychiatrist.

34. Dr Kaplan noted the plaintiff’s medical history and psychological problems he identified his diagnosis as Post-Traumatic Stress Disorder, Major Depressive Disorder, Dysthymia and Body Dysmorphic Disorder against the background of a Borderline Personality Disorder, all of which require that she undergo psychiatric treatment and treatment by a psychologist.

35. Dr Kaplan’s opinions in that regard must be viewed against the background that prior to Dr Blackstock’s surgery, the plaintiff was leading a stable, successful and competent life, including successfully raising three children.

Disabilities that remain

36. Some of the plaintiff’s ongoing disabilities have been outlined by the abovementioned medico-legal experts in their respective reports.

37. Following Dr Blackstock’s surgery, physically the plaintiff has been left with restricted upper torso and arm movements. She has hardness in her left breast. It is painful to touch and she experiences pain when pressure is applied. As a result she avoids physical intimacy. She experiences painful difficulty with lifting, bending and carrying, especially when embracing her children.

38. The plaintiff complains that since her breasts were augmented they became too large and too heavy. As a result of the surgery, she needed an F-cup brassiere which caused her discomfort. As a result, she was suffering from bra strap shoulder indentation, and back and neck pain. She had difficulty wearing a seatbelt and difficulty carrying a handbag. Those problems were to a degree lessened after the surgery performed by Dr Knight.

39. The plaintiff’s ongoing pain and her significant emotional difficulties that followed Dr Blackstock’s surgery have caused her to have adverse psychological reaction to those matters, including a resultant reticence for intimacy. My impression of her evidence was that those problems were emotionally crippling for her. This resulted in significant acopia on her part. This also led to a two year period of marital separation, where her husband remained in the family home only to help manage their children and also manage the household with regard to the heavier commonplace tasks which she found she was no longer able to fulfil.

40. The plaintiff’s husband had his own business to run, and therefore the domestic situation was difficult to manage. Ultimately, on the strength of their lifelong connection since early childhood, the marital relationship was restored. However, the plaintiff still has issues with intimacy due to her reaction to the disfigurement caused by Dr Blackstock.

41. The plaintiff continues to have altered breast and nipple sensation. She continues to experience a capsular contraction of the left breast. This requires ultrasound physiotherapy to try and break down the scarring. She has extensive breast scarring. This causes her to be emotionally upset. She does not like to view her breast deformities. She has suffered a significant loss of self-esteem.

42. The plaintiff has difficulty placing her arms by her side or undertaking above head hand movements. It is difficult for her to find a comfortable sleeping position and she finds she cannot lay on her stomach.

43. The plaintiff is petrified at the prospect of having further remedial surgery. This is a dilemma for her as she needs that further surgery. Ultimately, she resolved this issue by explaining that because she knows she needs further surgery, she will only have it if she is able to satisfy herself of the competence and skill of the surgeon and as to the safety of the proposed operating conditions, as was the case with the ameliorative operation carried out by Dr Knight.

44. In addition, due to the plaintiff’s underlying Crohn’s disease, she has encountered gastro-intestinal complications which will require additional specialist consideration and management. She required a surgically implanted port-a-cath to manage this complication. This has caused some additional and very noticeable scarring to the upper right side of her chest that is not easily concealed by her clothing.

45. All of these continuing disabilities are considerably troubling for the plaintiff and they have the effect of disrupting her life.

Assessment of damages

46. My assessment of the plaintiff’s damages now follows.

Non-economic loss

47. As a consequence of Dr Blackstock’s surgery and the plaintiff’s resultant disabilities, she has been unable to resume her work as a nurse. This loss is devastating for her as she placed a high value on being able to work in that profession. She will no longer gain the satisfaction which she obtained from that work.

48. In addition, the plaintiff’s psychological disabilities have had a crippling effect on her. In view of her earlier background, in which she overcame many obstacles in her life, she could ill-afford the blighting effect of the psychological problems she has described, and which are summarised at paragraphs [37] to [44] above.

49. In addition, her physical disabilities limit her daily activities and her ability to lead an unrestricted life. All aspects of her family, personal, domestic and work activities have been adversely impacted to a significant degree and this will most probably continue.

50. Furthermore, the plaintiff faces the prospect of a series of uncomfortable, burdensome, but necessary remedial surgeries which will add to her distress and her loss of enjoyment of life.

51. In addition to those matters, the daily reminder the plaintiff must face as to the disastrous cosmetic results of Dr Blackstock’s surgery is a significant factor to be weighed when assessing non-economic damages.

52. Taking all those matters into account, I assess the plaintiff’s damages for non-economic loss for pain, suffering, loss of enjoyment and loss of amenity of life pursuant to s 16 of the CL Act at 42 per cent of a most extreme case. This is the monetary equivalent of $296,000.

Past economic loss

53. If Dr Blackstock’s surgery had been performed competently, and if the recovery from it had proceeded uneventfully, which was the plaintiff’s expectation, she would have been away from work for between 4 – 6 weeks, as she had been advised. However, that was not the case.

54. Consequently, adopting a broad approach, the plaintiff’s past loss of earnings as a nurse is calculated from November 2016 to 8 March 2023, a period of 330 weeks, at $950 per week net. This yields a calculation of $313,500 net.

55. In my view that calculation is necessarily conservative because it does not incorporate the usual CPI or other award increases that would ordinarily have accrued over a period of over 6 years. Therefore, I consider that calculation to be a conservatively reliable measure of the plaintiff’s earnings as a nurse but for the disabilities caused by Dr Blackstock’s negligence.

56. An offset allowance must be made for the plaintiff’s mitigatory earnings as an on-call part-time casual check-out operator at a supermarket where, since November 2022, she worked variable hours between 3 to 20 hours per week. The evidence on these mitigatory earnings was not quantified with precision either as to hours or as to the rate of earnings.

57. Therefore, doing the best I can to identify a reasonable offset calculation I consider that at the higher rate of 20 hours per week at $20 per hour net, over 18 weeks between November 2022 and the commencement of the hearing, the offset sum should be calculated at $7200. The result is rounded down to $300,000 net.

58. I therefore assess the plaintiff’s damages for past loss of earnings in the rounded net sum of $300,000.

Past loss of superannuation

59. The plaintiff is entitled to compensation for the past loss of employer funded superannuation at 11 per cent of her damages for past economic loss of $300,000. That sum is therefore assessed at $33,000.

Future economic loss

60. I am satisfied that the evidence shows that the plaintiff’s earning capacity has been greatly impaired as a result of Dr Blackstock’s negligence: Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5. But for that negligence, the plaintiff would have continued to be able to pursue her career as a nurse until the normal retirement age of 67 years, subject to the conventional vicissitudes that would ordinarily apply as a discounting factor.

61. In addition to that factor, I consider that a slightly higher discount rate should be allowed in light of the plaintiff’s past history of Crohn’s disease and the possibility that her earlier psychological issues might have been the subject of occasional flare-ups. In my view, a slightly higher discount of 20 per cent would be an appropriate allowance for those combined factors that might have otherwise intermittently interfered with the plaintiff’s capacity to work in her job as a nurse, noting it is a sought-after profession where there is a shortage of skilled employees: s 13 of the CL Act.

62. As the plaintiff’s loss of earning capacity as a nurse is calculable, this indicates that it would be inappropriate to approach the assessment of the plaintiff’s future loss of earning capacity as a buffer sum.

63. A projection of nurses’ earnings of $950 per week net over a remaining working life of 36 years to age 67 on the 5 per cent actuarial tables (x 884.8) less 20 per cent for vicissitudes yields the sum of $672,448. As already stated that calculation is conservative.

64. An offset is required to allow for the prospect that the plaintiff may earn mitigatory earnings. However, in my view, the on call casual intermittent supermarket work she has been doing for the past few months is not a sufficient basis for estimating with precision an appropriate offset amount.

65. Any offset estimation must take into account the plaintiff’s ongoing physical and psychological difficulties including the exacerbating effect that her consequential stress has on her equilibrium and on her Crohn’s disease.

66. In my view, the combination of those factors and her present disabilities, militate against the plaintiff being able to exercise a significant, substantial, and consistently ongoing mitigatory earning capacity.

67. In those circumstances, I consider that the most appropriate method to be employed for assessing the plaintiff’s residual mitigatory earning capacity is to assess a buffer sum: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

68. Doing the best I can to be fair to the plaintiff in respect of her need for reasonable compensation whilst at the same time balancing that consideration against the need to be fair to the defendant, I assess the offset buffer sum at $250,000.

69. After offset, I assess the plaintiff’s damages for future loss of earnings in the net sum of $422,448.

Future loss of superannuation benefits

70. The plaintiff is entitled to compensation for the future loss of employer funded superannuation at 14.5 per cent of her damages for future economic loss of $450,000: Najdovski v Crnojlovic [2008] NSWCA 175. I therefore assess the plaintiff’s damages for future loss of employer funded superannuation contributions in the amount of $61,254.

Past domestic assistance

71. The plaintiff’s capacity to carry out the normal tasks of running her household was completely curtailed by her disability for a period of 330 weeks from November 2016 until the hearing, (allowing for a 6 week period of normally anticipated incapacity if all had gone well)

72. During that time Mr Hammond took over the responsibility for all the domestic tasks usually performed by the plaintiff, but to a lesser standard. Those tasks included washing, ironing, cooking, cleaning, general shopping, vacuuming, and mopping floors and tending to the needs of the children. Mr Hammond’s input was to the extent of about 20 hours per week.

73. It is against that background that pursuant to s 15 of the CL Act, the plaintiff makes what I consider to be the modest claim for 8 hours per week at the average statutory rate of $32 per hour. That calculation, yields the sum of $256 per week or $84,480 over the entire period of 330 weeks.

74. I therefore assess the plaintiff’s damages for past domestic assistance in the sum of $84,480.

Future domestic assistance

75. The plaintiff makes a claim for the likely cost of ongoing paid domestic assistance. I consider it unlikely that Mr Hammond would be able to continue to provide that assistance gratuitously, especially as he has to run his own business.

76. In my view the plaintiff’s claim under this head of damage has been expressed conservatively, at 2 hours per week, at $55 per hour or $110 per week over her remaining median statistical life expectancy of 55.34 years.

77. In my view, some discounts need to be applied to that projection. First, allowance must be made for the possibility that as she ages, she might have needed help with the heavier domestic tasks in any event. On that account, I discount the period of projection to 45 years.

78. The ensuing projection of $110 per week over 45 years on the 5 per cent actuarial tables (x 950.4) yields $104,544. In my view, that sum should be further discounted by 15 per cent on account of conventional vicissitudes. This yields the discounted sum of $88,862.

79. I therefore assess the plaintiff’s damages for future domestic assistance in the sum of $88,862.

Future out-of-pocket expenses

80. The plaintiff makes a claim for future treatment expenses. That claim has three components. First, there are the anticipated surgical expenses totalling $95,000 as estimated by Dr Fee Lai. I consider those staged procedures are reasonable and I am satisfied that after a year or two, following judgment, when in funds, the plaintiff will most likely have those procedures.

81. In those circumstances, the sum of $95,000 should be discounted by the 5 per cent actuarial deferral factor of 0.907 for 2 years, which yields the sum of $86,165.

82. In my view, an additional allowance of $5000 should be added to that sum for the likely cost of future medical consultations, medications and psychological counselling sessions.

83. I therefore assess the plaintiff’s damages for future out-of-pocket expenses in the rounded sum of $90,000.

Past out-of-pocket expenses

84. The plaintiff’s claim for out-of-pocket expenses is conservative in its terms: Exhibit “F”. Her claim is masked by the fact that Dr Knight’s surgery was carried out in the public hospital system. I therefore assess those out-of-pocket expenses as stated in Exhibit “B” in the sum of $2197.70.

Summary of damages assessment

85. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non-economic loss	$296,000
(b) Past economic loss	$300,000
(c) Past superannuation loss	$33,000
(d) Future economic loss	$422,448
(e) Future superannuation loss	$61,254
(f) Past domestic assistance	$84,480
(g) Future domestic assistance	$88,862
(h) Future out-of-pocket expenses	$90,000
(i) Past out-of-pocket expenses	$2,197.70
Total	$1,378,241.70

Disposition and costs

86. The plaintiff is entitled to a judgment for a damages award of $1,378,241.70 and she should have a verdict and judgment in her favour for that amount. As the plaintiff has succeeded in obtaining a judgment in her favour, she should also have an order that the defendant should pay her costs of the proceedings on the ordinary basis.

Orders

87. I make the following orders:

1. Verdict and judgment for the plaintiff in the amount of $1,378,241.70;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered

3. The exhibits may be returned;

4. Pursuant to s 98 and s 99 of the Civil Procedure Act 2005 (NSW), at the time the plaintiff’s solicitor renders his bill of costs to the plaintiff he is required to file a certificate with the Court file evidencing the fact that he has not charged the plaintiff any professional fees for the wasted listing of the matter on 21 February 2023;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

**********

Decision last updated: 10 March 2023