Justus v Reed
[2014] SADC 176
•24 October 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
JUSTUS v REED & ANOR
[2014] SADC 176
Judgment of His Honour Judge David Smith
24 October 2014
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT
Medical negligence - default judgment entered against defendant in the course of the proceeding - assessment of damages - plaintiff a 43 year old woman on whom defendant performed breast augmentation surgery negligently - corrective surgery possibly combining two procedures made necessary by defendant's negligence in carrying out original surgery - common law assessment of damages constrained by Part 8 of Civil Liability Act, 1936 (SA) - discussion of onus of proof and causation in the setting of an assessment of damages - discussion of basis upon which damages for the tort of negligence are awarded in such a case - plaintiff to be restored to the position she would have been in, so far as money can do it, on the basis that the tort of negligence had not been committed - restitutio in integrum - plaintiff awarded damages in the total sum of $84,315 inclusive of interest including non-economic loss of $41,750 calculated on the basis of a scale value of 20.
Bankruptcy Act 1966 (Cth) ss 60, 82(2); Civil Liability Act 1936 (SA) Part 8 ss 52 (1)(a), (2)(a); District Court Act 1991 (SA) s 39, referred to.
Haines v Bendall (1991) 172 CLR 60; British Transport Commission v Gourley [1956] AC 185; Hoile v Motor Accident Commission [2013] SADC 25; Jurkovic v Hubbard [2013] NSWDC 21; Graham v Baker (1961) 106 CLR 340; Mann v Ellbourn (1974) 8 SASR 298; Medlin v SGIC (1995) 182 CLR 1; Husher v Husher (1999) 197 CLR 138; Wilson v McLeay (1961) 106 CLR 523; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, considered.
JUSTUS v REED & ANOR
[2014] SADC 176
This is an action in common law negligence in which the plaintiff claimed damages against the two medical practitioner defendants, arising from breast surgery performed on her on 21 May 2009.
Other causes of action were pleaded but at trial, the plaintiff has prosecuted her claim in negligence (9, 10, 17). The action was instituted against both defendants on 15 May 2012. On 29 August 2012 default judgments for damages to be assessed were entered against both defendants by reason of neither of them having filed a defence (see Exhibit P6). On 11 July 2013, by consent, the action against the second defendant, Mario Marzola was dismissed with no orders as to costs.
Accordingly, this action has proceeded as an assessment of damages against the first defendant only, Robert Maxwell Reed.
In October 2011 Dr Reed, to use the old language, was declared bankrupt. This proceeding was instituted against him when he was still bankrupt. However, his Trustees declined to elect pursuant to s 60 of the Bankruptcy Act 1966 (Cth), to stay this action on the basis that this claim by the plaintiff was not ‘provable in bankruptcy’ pursuant to s 82(2) of the said Act (see Exhibit P3). I heard preliminary argument as to whether there was any impediment to proceeding (1‑18). I am satisfied that the Trustees’ position was correct and supported by clear authority (see Coventry and Ors v Charter Pacific Corporation and Anor).[1] Dr Reed is no longer bankrupt (see annulment document Exhibit VD1).
[1] [2005] 227 CLR 234 at [71] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
While this is a common law claim it is subject to the statutory constraints of the Civil Liability Act 1936 (SA) and in particular, Part 8 of that enactment, which came into operation on 1 December 2002.
Background Circumstances - Findings
The surrounding circumstances, in large measure, are uncontentious and are embodied in affidavits from both the parties (see three affidavits of plaintiff, Exhibits P1, P4 and P5 and two affidavits of the defendant, Exhibits D1 and D2). There was, in addition, brief evidence on oath from both the plaintiff and the defendant. Much of the defendant’s material raised liability issues which, of course, are not relevant to this exercise other than on the issue of causation.
The following are my findings.
The plaintiff was born on 1 May 1968 in Paris. She is now 46 years old. Together with her parents and a sibling she migrated to Australia in 1969 and the family settled immediately in South Australia. She attended both primary and high school in Paralowie. She completed Year 12 in 1985 and left school at the age of 17.
She has had a full work life, only pausing from time to time, to have children and spend time caring for them. Her work history is detailed in her affidavit. Notably, she has worked in a bakery, as an industrial and domestic cleaner; she has packed lollies, owned and operated a delicatessen, and also worked as a lunch van driver.
She has had four children of two marriages. At the time of this assessment of damages she had separated from her second husband, Mario Justus. That occurred in December 2011 after the breast surgery. The plaintiff does not assert that the problems relating to the breast surgery of 21 May 2009 caused the collapse of her marriage but, to use her words, ‘… it caused significant frustration in our relationship …’ (see Exhibit P1 at [75]).
Accordingly, the plaintiff’s situation at the time of the breast surgery on 21 May 2009 was that she was living with her husband Mario Justus and children and working, approximately three to five hours a day, as a house and office cleaner.
It was in April of 2009 that she decided to have breast surgery. She said ‘… that she was not happy with the size or shape of her breasts having breastfed four children …’ (Exhibit P1 at [27]).
Accordingly the plaintiff went to the Norwood Day Surgery, consulted with Dr Reed, and at a cost of $7,700, which she borrowed, she underwent, on 21 May 2009, an augmentation procedure. Such a procedure involves the insertion of implants. It was the procedure recommended by Dr Reed (see Exhibit P1 at [27]‑[33]). All did not fare well. There was an onset of infection and with it came pain, complications and much discomfort. The plaintiff regarded her breasts as unsightly and asymmetrical (see Exhibit P1 at [34]–[55]). In about October 2009, after almost six months of considerable pain, discomfort and the inconvenience, she was referred, by Dr Marzola, to Dr Melissa Bochner for a second opinion. Dr Bochner recommended the immediate removal of the implants. That was done at the Royal Adelaide Hospital, by Dr Bochner, on 30 November 2009. In addition to consulting Dr Melissa Bochner, the plaintiff has also consulted two other plastic surgeons Dr Richard Harries and Dr Cholm Williams. I have before me the reports of those medical practitioners (Dr Cholm Williams’ report dated 16 November 2010, Dr Richard Harries’ reports dated respectively, 11 May 2011, 21 December 2011 and 5 March 2014).
Dr Cholm Williams was of the opinion that in a number of respects, the surgery performed by Dr Reed on 21 May 2009, departed from the standard required of a reasonably experienced breast surgeon exercising due care and skill. I will later return to that topic and particularise the specific departures. Dr Williams recommended corrective surgery. In particular, at page 4 of his report of 16 November 2010, he said:
Subsequent retrieval of patient’s appearance would require a formal breast lift, and then if the amount of residual breast volume was inadequate a re augmentation could be carried out with a very accurate assessment of the implant size to be made.
However, in many cases a simple breast lift produces an apparent increase in breast volume which satisfies the patient.
Dr Harries, in his report dated 21 December 2011, warned that in the fullness of time, an uplift or mastopexy, would settle and the improvement constituted by it would be reduced. Further, he indicated that another augmentation would bring with it a heightened risk of infection by reason of the presence of some ‘indolent or sequestered bacteria’. In his report dated 5 March 2014, Dr Harries canvassed the present costs of the two categories of surgery, the uplift or mastopexy, and the re-augmentation.
The plaintiff is ‘extremely upset’ with the appearance of her breasts (see first affidavit at [64]). It is my view that she has good reason to be so dissatisfied. Her breasts, as she claims, are now lacking in volume. They are flat and sag (see photographs ‘before’ at VJ-1 and VJ-4 and ‘after’ at VJ-5 of plaintiff’s first affidavit). In the first affidavit she speaks of the impact the failed procedure has had on her enjoyment of life (see [64]-[83] of first affidavit).
The plaintiff has indicated that she will undergo the remedial uplift surgery (ie mastopexy) if and when she has the money to do so, and I gather she would also consider undergoing the re-augmentation procedure if the uplift does not restore sufficient volume to the breasts.
I turn now to indicate what has happened in the plaintiff’s life since the May 2009 surgery.
After the first operation, the plaintiff was not able to return to her cleaning work and gave up her cleaning contracts. She made the point, and I accept it to be so, that for six months or so after the surgery it was too painful to clean her own home let alone someone else’s. In December 2009 she obtained work as a lunch van driver for Great Aussie Bite. She worked there until Christmas 2012 when that business closed. The tax records disclose that she was earning approximately $540 net per 38 hour week (see second affidavit Exhibit P4 at [3]‑[6]). Then, after that, she worked for eight weeks cleaning for a business named Ipex. For that work she earned approximately $870 net per 38 hour week. Finally, in April 2013, she moved back to employment as a lunch van driver, this time for Churchill Court Snack Bar. She was working for that enterprise as at the commencement of this year 2014 and earned $635 net per 38 hour week.
As I have indicated, she is now separated from her husband and lives at Mawson Lakes. She socialises actively and has had sexual partners but she is reticent and embarrassed by the state of her breasts.
Legal Principles
The primary function of an award of damages for the common law tort of negligence, is to compensate the plaintiff for the loss the tort has caused, in so far as money can do so. The plaintiff is entitled to be restored to the position she would have been in had the relevant neglect not occurred. That is, the plaintiff is entitled to restitutio in integrum (See Haines v Bendall;[2] see also British Transport Commission v Gourley).[3]
[2] (1991) 172 CLR 60 at [63].
[3] [1956] AC 185.
Though this is an assessment of damages, the onus is upon the plaintiff to prove, on the balance of probabilities, that there is a loss to her, requiring compensation, arising from the negligence of the defendant. In particular, the plaintiff must establish that the losses were caused or materially contributed to by the relevant negligence (see Hoile v Motor Accident Commission).[4]
[4] [2013] SADC 25 at [69].
The claimed neglect, which the defendant is precluded from contesting by reason of his default, is that pleaded against him in the plaintiff’s Statement of Claim, as particularised and expanded upon by the expert, Dr Cholm Williams. The plaintiff is entitled to damages to compensate her for the following acts of negligence of the defendant Dr Reed:
·first for performing a breast augmentation as opposed to a breast lift or mastopexy:
(See Statement of Claim at [23.1] and see also report of Dr Cholm Williams dated 16 November 2010 at page 4);
·second for inserting two implants, each of 430 cc volume, which were too large:
(See Statement of Claim at [23.2] and see also report of Dr Cholm Williams dated 16 November 2010 at page 4); and
·third for failing to remove the implants as soon as infection and discharge occurred:
(See Statement of Claim at 23.4] and see also report of Dr Cholm Williams dated 16 November 2010 at page 4).
I turn now to the Assessment.
Assessment of Damages
Non Economic Loss
This part of the plaintiff’s claim is compensation for the negligently inflicted pain, suffering and loss of enjoyment of the amenities of life. The plaintiff’s claim, in summary, is that by reason of the defendant’s negligence in connection with the May 2009 surgery, she suffered pain and disability in the course of and as the result of being subject to inappropriate surgery. To be restored and compensated for what has happened, she needs to undergo surgery again. The claim for this heading of loss is constrained by Part 8 and in particular, s 52 of the said Civil Liability Act (‘the said Act’).
First of all, the plaintiff qualifies for this heading of damage because as a result of Dr Reed’s neglect, her ‘… ability to lead a normal life was significantly impaired by the injury (ie surgery) for a period of at least seven days …’ (see s 52(1)(a) of the said Act). The augmentation procedure undertaken by him was inappropriate and futile. So the pain, suffering and cosmetic disabilities which flowed from it are compensable. In particular, the exquisite discomfort which resulted from the onset of infection including, not only the minor surgery performed by the defendant on 25 June 2009, when he cut away infected skin and caused the plaintiff to vomit over herself, but as well, the implant removal by Dr Bochner on 30 November 2009, must sound in damages.
Further, the fact that the plaintiff now is at a heightened risk of infection if implant surgery is carried out, is compensable, along with the impacts which have resulted on her daily living such as restrictions in movement, difficulties buying clothing and problems with intimate sexual interactions.
All these matters have rebounded on the plaintiff’s life and have continued to do so since May of 2009. She has endured these problems for five and a half years now. In particular she had to withstand her husband’s revulsion at the sight of her breasts and even now guards and covers herself to avoid embarrassment. Two relationships, since separation from her husband, have fractured because of her lack of confidence.
She is now anxiously contemplating the risks of corrective surgery, and is faced with an agonising decision about hazarding another augmentation procedure.
I assign a Scale Value of 20 to the plaintiff’s non-economic loss (s 52(2)(a) of the said Act). Effectively I consider that the plaintiff is entitled to this heading of loss on the basis that her case is a third as serious as the most extreme case (see Jurkovic v Hubbard).[5]
[5] [2013] NSWDC 21.
This loss arose in 2009, other than as a result of a motor vehicle accident, and therefore the calculation of non-economic loss is made pursuant to sub sections (d) and (c)(ii) of s 52(2). Implementing that convoluted formula results in an allowance for damages for past and future economic loss in the total sum of $41,750.[6]
[6] (ie $11,500 + (10 x $2,300) = $34,500 x (169.8 ÷ 140.3) = $41,754.09 to the nearest $10.00 = $41,750. NB. CPI for September Qtr of 2008 is 169.8 and for 2002 is 140.3).
Economic Loss
The guiding principle for the assessment of this heading of loss is clear. The requirement is that the Court fix a sum which is reasonable recompense for the plaintiff’s lost or diminished earning capacity which has been caused by the negligence, to the extent that it is, or is likely to be, productive of pecuniary loss (see Graham v Baker;[7] Mann v Ellbourn;[8] Medlin v SGIC;[9] Husher v Husher).[10]
[7] (1961) 106 CLR 340 at [351].
[8] (1974) 8 SASR 298.
[9] (1995) 182 CLR 1.
[10] (1999) 197 CLR 138 at [142]-[143].
Economic Loss as result of May 2009 surgery
I accept that the plaintiff has always been a diligent worker. Further I accept her evidence that the trauma of the negligent surgery disabled her from working until about December 2009, when ordinarily such a procedure would require only a fortnight off work (see report of Dr Harries, 5 March 2014). In December 2009, she obtained a job as a lunch van driver for Great Aussie Bite at $540 net per week. After that business closed, she undertook cleaning work and persisted at it for eight weeks at a wage of $870 net per week.
I am satisfied, all being well, that the plaintiff would have been able to return to work two weeks after the surgery. In fixing that recuperation period, as indicated, I have taken into account that Dr Harries, in his costing report of 17 March 2014, allowed a fortnight for recovery and return to work. However, erring on the side of caution, I allow a month for recovery including the week required by s 54(1) of the said Act. Accordingly that results in a period of 22 weeks during which, the plaintiff was, as a result of the effects of the surgery, unable to work. I consider it reasonable to regard the dollar value of the plaintiff’s working capacity, in this period, to be $540 net. Indeed, it could be seen as conservative bearing in mind that the commercial cleaning job which she undertook paid $870 net per week. Therefore the plaintiff’s loss in that period is $11,880 (ie $540 net per week x 22 weeks). I see no reason to discount that sum. Though, as I said, it is strictly speaking, compensation for a lost chance, it is a certain past period and the calculation I have employed uses a conservative weekly value.
Therefore I decline to discount that capitalised sum. There is no presumption that a discount is necessary (see Beare v Slattery).[11] Accordingly, I fix the plaintiff’s economic loss arising from the original surgery at $11,880.
[11] (2000) 218 LSJS 338 per Gray J at [18].
Interest on Economic Loss arising from May 2009 surgery
The plaintiff is entitled to interest on this heading of loss (see s 39 of the District Court Act 1991 (SA)). The period of the calculation is from the date of the surgery, namely 21 May 2009, when the liability to compensate arose, and the period extends to the date of this judgment namely, five and a half years. I regard the appropriate interest rate as 6.5% per annum. Accordingly, the calculation, (ie $11,880 x 6.5% per annum x 5½ years), results in an allowance of $4,247. Discounting that allowance for the slow accumulation of the loss upon which it is calculated, is not warranted, since the sum of $11,880 has been owed for almost the entire period of 5½ years.
Loss of Superannuation Benefits on Economic Loss arising from May 2009 surgery
I allow 10% of the plaintiff’s economic loss, arising from the May 2009 surgery, for lost Superannuation benefits. Accordingly, that allowance is $1,188. There is no interest entitlement on that heading of loss.
Medical Expenses arising from May 2009 surgery
It is clear from the evidence before me (see [34] and [87] of the plaintiff’s first affidavit, and see also transcript at page 30), that as 2009 proceeded, and the plaintiff struggled with the infection which developed, she consulted with her general medical practitioner (see Exhibit VJ-10 to plaintiff’s first affidavit, Medicare Australia Notice of Past Benefits), and from time to time purchased painkilling medication. She did not retain the records of these purchases. However, I accept that she did so. Like the loss of wages and indeed the cost of the implant removal, if she had been charged for it, such costs are claimable as being a direct result of the defendant’s negligence. I have no records of chemist bills and medical consults (apart from the Medicare Notice), on which to rely and so a conservative allowance is all that can be made. I allow $500 under this heading and that allowance will be inclusive of interest.
Voluntary Assistance – Wilson v McLeay Damages – arising from May 2009 surgery
The plaintiff seeks an allowance in damages for the value of the gratuitous care provided to her by her husband and children during the period of approximately six months when she struggled with her disabilities and restrictions and with the onset of the infection. I allow $500 inclusive of interest for that gratuitous household and nursing care provided by her family. That modest sum includes also a small allowance for Wilson v McLeay type damages which embrace travelling costs to and from appointments and the like (see Wilson v McLeay).[12]
[12] (1961) 106 CLR 523.
Economic Loss as a result of the prospective corrective surgery
The plaintiff seeks damages for the loss of income, which she will no doubt suffer, as a result of the two weeks or so she will be away from work following the corrective surgery (see Dr Harries’ report 5 March 2014).
This claim is misconceived.
It must be remembered that the plaintiff always faced such a loss, when she embarked upon this elective surgery. The damages awarded in this action are limited to restoring her to the position she was in before she was the victim of Dr Reed’s neglect. In particular, in respect of economic loss, she has recovered her lost six months of income and so, in that respect, she has effectively been restored, so far as money can do it, to her original position. The defendant, Dr Reed, cannot be responsible again for such a loss.
This part of the plaintiff’s claim amounts to ‘double dipping’.
The position would be different, if there was evidence that, by reason of Dr Reed’s neglect, that the restorative surgery would be more complex and difficult than otherwise would be the case and that, for instance, increased work incapacity would result. There is no such evidence. Indeed the estimate of a mere fortnight’s work incapacity by Dr Harries, would suggest otherwise.
There is one remaining problem. If the risk of infection, which has been heightened by Dr Reed’s neglect, materialises, and there is a prospect it might, then I would expect, as happened in May 2009, that the plaintiff would be off work for more than a fortnight. This prospect was not canvassed in detail in either the oral or documentary evidence before me. Nonetheless, it emerges from the evidence and cannot be ignored in the assessment. The allowance must necessarily be modest.
I allow $7,500 under this heading. It is a modest allowance bearing in mind the dollar value of her work capacity which is now $635 net per week.
Loss of Superannuation Benefits on Economic Loss arising from prospective corrective surgery
I allow 10% of the above damages of $7,500 for lost superannuation benefits. Therefore this allowance is $750. There is no interest entitlement on this heading of loss.
Medical Expenses arising from prospective corrective surgery
Again I note that the plaintiff’s Outline of Argument seeks, inter alia, both the costs associated with the surgery of 21 May 2009 and the costs associated with the prospective corrective surgery. The plaintiff is not entitled to both. I have canvassed this issue in connection with the claims for economic loss. I repeat here much of what I said there. A consideration of the basis upon which tort damage is awarded will demonstrate that the plaintiff cannot have both. The plaintiff is entitled to be put in the position, so far as money can do it, she would have been in had there been no neglect by the defendant in connection with the surgery of May 2009. Accordingly, the plaintiff would have incurred one lot of expenses for breast surgery. In other words, if everything had happened ‘without a hitch,’ the plaintiff would have borne those costs. She cannot be entitled to both lots of costs as the Outline seems to advocate. It would be double compensation and will effectively mean that she will not have paid anything for the surgery she elected for.
The question then arises as to which of the two batches of expenses is the plaintiff entitled – those associated with the failed surgery of 21 May 2009 or those associated with the future proposed corrective surgery?
I consider that the plaintiff is entitled to be compensated under this heading for the direct and flow on costs of the corrective surgery. After all, the incurring of those expenses is necessary to compensate or restore the plaintiff to her original position.
I accept Dr Cholm Williams’ view, that the plaintiff can be restored by undergoing a breast lift (ie mastopexy), and if that does not produce an adequate increase in breast volume, as it sometimes can, then a re-augmentation could be carried out.
The next question which arises is, whether and to what degree, the costs associated with a re-augmentation should be anticipated in the allowance for damages?
The plaintiff complains and the photographs confirm that following the May 2009 surgery and the November 2009 removal of the implants, her breasts are flat and sagging, that is, longer and lacking in volume. In particular, she said that the tissue was cut out of her breast by Dr Reed in order to make the implants fit (see [35] and [65] of the plaintiff’s first affidavit). There was no other evidence that tissue was removed, but Dr Reed did explain in the course of his address to me, that some atrophy of breast tissue can occur if implants are in place for a ‘long time’. He suggested that five months, which was the period over which the plaintiff had implants, was not a long time (see transcript Reed pages 73-75).
In my view, considering all the circumstances, a re-augmentation procedure after the mastopexy, is a distinct prospect and the damages should reflect that prospect.
The cost of the ‘retrieval’ procedures namely, the bilateral mastopexy combined with the re-implantation or augmentation, are as follows:
·$5,000 for Surgeon’s pre-operative assessment fee, surgical fee and three months of aftercare;
·$1,000 for Assistant Surgeon’s fees;
·Between $1,826 and $3,300 for implants;
·$8,779.10 for hospital fees; and
·A minimum of $1,244.50 for Anaesthetist fee.
Total $19,323.60 (taking the maximum fee).
(See report of Dr Harries dated 5 March 2014 and see also, third affidavit of plaintiff at [4.2] and [5.2]).
There will also be the usual chemist fees for post operative medication.
Further, if the feared risk of infection comes to pass, then there will be increased costs for even more medication and necessary medical consultations.
In those figures there are a number of variables. If, for instance, only the mastopexy is required, the above costs will reduce by approximately $6,000.
Notwithstanding the various imponderables, the damages for future medical expenses, must be assessed now on a once-and-for-all basis. The best a Court can do is to award a proportion of the full damages based on an assessment of the percentage probability that such costs will be incurred (see Malec v JC Hutton Pty Ltd).[13]
[13] (1990) 169 CLR 638.
Therefore, in this case, I fix $16,000 for the costs of future corrective surgery and the associated medical expenses.
Summary of Assessment
Non-economic Loss – Pain and Suffering
(scale value 20) 41,750Economic Loss arising from May 2009 surgery 11,880
Interest on above Economic Loss arising from
May 2009 surgery 4,247Loss of Superannuation Benefits on Economic
Loss arising from May 2009 surgery 1,188Medical Expenses arising from May 2009 surgery
(inclusive of interest) 500Voluntary assistance – Wilson McLeay Damages
arising from May 2009 surgery (inclusive of interest) 500Economic Loss arising from prospective corrective
surgery (no allowance for interest) 7,500Loss of Superannuation Benefits on Economic Loss
arising from prospective corrective surgery 750Medical Expenses arising from prospective
corrective surgery 16,000TOTAL $ 84,315
Judgment
Accordingly, there will be judgment for the plaintiff against the defendant in the sum of $84,315 which sum includes interest.
I will hear parties as to costs.
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