Seok Jin Hong v Myoung Ok Lee No. DCCIV-96-623 Judgment No. D3599

[1997] SADC 3599

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Kitchen

Hearing

24/04/97.

Catchwords

25 Year old male University student - underwent cosmetic surgery on nose - incompetently done - two further operations to correct - plaintiff abandoned University studies in year underwent operations because of pain and discomfort - claim for HECS fees allowed - claim for exemplary damages rejected - delayed entry into work-force but little evidence of what might have earned - non-economic loss past $5,000 future nil - economic loss future $5,000 past nil - special damages $2,932 - total award before interest $14,632

Representation

Plaintiff SEOK JIN HONG:
Solicitors: REILLY BASHEER DOWNS &; HUMPHRIES

DCCIV-96-623

Judgment No. D3599

5 May 1997

(Civil)

Seok Jin Hong v Myoung Ok Lee

Civil

Judge Kitchen

On 30th October 1996 the plaintiff obtained an interlocutory judgment against the defendant for damages to be assessed in proceedings he issued on 22nd May 1996 claiming damages for the defendant's negligence in carrying out surgery on his face in April 1995.The defendant failed to file an appearance in the plaintiff's action.

The proceedings come before the Court for assessment of damages.

The plaintiff is25 years old.He was born in Korea on 5th May 1971 where he lived until he came to reside in Australia in 1990.In Australia the plaintiff completed his year 11 and year 12 schooling.He was accepted into a tertiary course of study in 1995 at the University of Adelaide for what he described as a degree in computer engineering and scienceand was reading four subjects in that year.

In about April 1995 the plaintiff saw an advertisement in the "Sydney Weekly" a periodical published in the Korean language.Exhibit P2is a tear sheet from that periodical together with a translation of it into English by the plaintiff.In the course of the plaintiff giving evidence I judged him to have a good command of English and I am prepared to accept that the translation is a sufficiently accurate rendering for my purposes.

I infer the plaintiff was unhappy or sensitive about some of his facial features and that prompted him to respond to the advertisement.In the course of his case there was tendered an affidavit sworn byMr. K.J. Diamantis, a surgeon, verifying the contents of two reports prepared by him dated 28th June 1995and 7th January 1997 (ExhibitP1).In the report dated 28th June 1995 Mr. Diamantis relates:

"I initially consulted Mr Hong on the 26th of April 1995 at which stage the patient did complain of a nasal infection which had been present for several days.Mr Hong informed me that he did suffer a motor vehicle accident about 2 weeks prior to this in Sydney and underwent some form of nasal reconstruction as a consequence."

In his evidence the plaintiff said he was involved in a motor vehicle accident butit was about four years ago.He explained he told Mr. Diamantis an untruth because he wished to give a reason, other I infer than mere vanity, why he chose to undergo cosmetic surgery.Such an admission does him no credit and brings me to approach his evidence with caution where his evidence alone is relied on in proof of his case.

The advertisement the plaintiff saw is captioned "You will get satisfaction from all the surgery that I am doing.Cosmetic surgery (pretty nose) double eyelid surgery" followed by a list of various facial features or blemishes for which treatment was offered, including "Eyelid surgery (we make your eyelid, eye lining looking beautiful):Nose plastic surgery (you can change your hook nose: Pimple, scarwrinkles.Any skin problem will be solved completely all at once", and set out several telephone numbers.

The plaintiff related that he telephoned a number shown in the advertisement, it was in Campsie in New South Wales, and spoke to a female who identified herself to him as Dr Debra Lee.It is the plaintiff's case that she is the defendant.He spoke to her about undergoing surgery on his eyelids, the cost of that and about the availability of accommodation in Campsie.He decided to undertake the surgery and he travelled to Campsie arriving on a date in April 1995.He went to what he described as the defendant's house which incorporated a hospital -I think he meant an operating room or surgery - where she showed him a booklet of photographs from which heselected the "look" he would like. He underwent the procedure on his eyelids the same day at a cost of $l,l00.He described that he was given a local anaesthetic by injection into his eyelids with further injections in the course ofthe surgical procedure because he experienced pain as it progressed and during which he was fully conscious.He said he had some five such injections during the one and a half hours the operation occupied.

The plaintiff produced three photographs (Exhibit P3) which he said were taken immediately after the surgery was completed and before any dressing was applied to his eyes.The photographs bear the numerals '95 4 13printed on them which I interpret to mean 13th April 1995.

The plaintiff lodged in accommodation in Campsie which he said the defendant arranged for him, in premises across the road from the defendant's surgery and for which he paid a total of $200 to $300 (he was not more precise) for seven nights lodgings.He had planned to stay there for only two or three nights but on the second of the two days following the operation on his eyelids, when he attended upon the defendant for dressings and medication, she, the plaintiff said, commented that his eyelids did not "match" his nose and suggested he have surgery to his nose.He agreed and also asked that she remove chickenpox scars which were apparent on the left and right side of his face near the orbits. The price for those procedures was $850 for the nose reconstruction and $450 to remove the chickenpox scars.Both operations were performed on the same day, two days after the procedure on his eyelids.From his evidence I think the scar removal procedure was agreed upon immediately after the nose reconstruction, which occupied about an hour, and it was performed thirty minutes later.

The plaintiff described that the procedure on his nose was very painful despite six or seven local injections the defendant administered during the operation - he said he screamed with pain.

The plaintiff produced a photograph (Exhibit P4) taken after the nose and chickenpox scar operations.That photograph has the numerals '95 4 15 imprinted which I take to be 15th April 1995.

The plaintiffspent a total of seven days in the accommodation which the defendant had arranged for him recuperating from these three procedures.He saw the defendant each day for attention to his dressings or for medication. He then returned to Adelaide.

The plaintiff's claim in his statement of claim is limited to the procedure carried out on his nose and its consequences.

The procedure on the plaintiff's nose involved the insertion of a prosthesis, a block of contoured silastic.

The plaintiff said he experienced a lot of pain in his face after he returned to Adelaide.He said his face was swollen, his nose appeared to be infected and he could see the lower end of the silastic, which the defendant had inserted into his nose, protruding into his right nostril which was very swollen.He consulted his local general practitioner, Dr Rose, who immediately referred him to Mr. Diamantis a specialistin otolaryngology with a special interest in cosmetic facial surgery whom he was able to consult on 26 April 1995. Mr. Diamantis, the plaintiff said, removed a suture from his nose and sent the plaintiff to Flinders Medical Centre where a Dr Ling took out the silastic from his nose.The plaintiff was in hospital for three days between 3rd and 6th May 1995 following that procedure.

The plaintiff returned to see Mr. Diamantis.He said his nose was deformed in that it was "flatter" than it had been before he underwent the operation at the hands of the defendant and the nose was asymmetricalin that the right nostril was drawn upwards above the level of the other nostril.Mr. Diamantis advised that he should undergo a reconstruction of his nose using cartilage from his ears.In the event the reconstruction which Mr. Diamantis carried out on 24th August 1995 did not require, the plaintiff said, use of any ear cartilage;the surgeon was able to use cartilage in the nose to effect the reconstruction.

The plaintiff described it took him two to three weeks to recover from that operation during which he had pain in his whole face.He said he experienced insomnia and mental distress because he could not study.He had withdrawn from his tertiary course in about July 1995 which he said, and I accept, was prompted by the physical and mental or emotional, trauma of the procedures carried out on his nose by the defendant and their consequences, and that he had been unable to carry out the academic work load necessary for him to continue in the balance of that year with any prospect of success.

In his report dated 28 June 1995 Mr. Diamantis wrote:

"Thank you for your letter requesting a medico-legal report on Mr. Jimmy Hong. I initially consulted Mr Hong on the 26th of April 1995 at which stage the patient did complain of a nasal infection which had been present for several days.Mr Hong informed me that he did suffer a motor vehicle accident about 2 weeks prior to this in Sydney and underwent some form of nasal reconstruction as a consequence.

My initial consultation demonstrated an infective right sided marginal nasal scar with silastic protruding through the wound.Additionally the patient had a continuous fine silk suture running along the boarder (sic) of the right nostril which may be best described as a rim incision for a rhinoplastic procedure.

I was unable to remove the silastic from the wound at the time of consultation and referred Mr Hong to Flinders Medical Centre for further attention.My understanding is that the patient did at Flinders Medical Centre undergo surgery to remove a block of Silastic from the nasal wound and certainly Mr Hong presented to my rooms on the 9th of May with a block of contoured silastic which he claimed had been removed from his nasal dorsum and collumellar. Certainly the contours of the Silastic were consistent with his explanation.

At examination on the 9th of May, the patient's incisions were healing satisfactorily but there was evidence of some supra-tip saddling and also the possibility of notching of the right ala.

The surgical approach used on Mr Hong by the initial Medical Practitioner reflected some immaturity or lack of training characterised by:

A: The use of a large piece of Silastic to reconstruct a nasal deformity.

B: The use of silk to suture a cosmetic nasal wound.

C: The use of a rim incision which is frequently associated with notching of the soft nasal triangle.

Mr Hong does require a reconstructive rhinoplasty using cartilage obtained from one or both ears and plans have been made to perform this surgery in mid July. Mr Hong should not require further reconstruction after this procedure but it is likely that the patient will have a residual right ala notch as a result of the surgery carried out in Sydney."

In a subsequent letter to the plaintiff's solicitors Mr. Diamantis reported (Exhibit P2 dated 7th January 1997):

"Thank you for your request for a medico-legal report on Mr Jimmy Hong dated the 21st of November 1996.Subsequent to the report dated the 28th of June 1995 Mr Hong was seen for one consultation on the 7th of August and indeed underwent surgery at Eastside Day Surgery on the 24th of August 1995.

At the consultation on the 7th of August it was noted that there was marked weakness of the supra-tip region with associated columellar weakness and a decreased projection.The reduced projection was not consistent with the patient's ethnic origin. Additionally there was a scar in the region of the right incision which was somewhat excessive but pleasingly there had been no significant injury to the soft triangle as I suspected may have been the case at earlier consultations.

As a consequence the patient underwent a routine bony rhinoplasty with narrowing of the bony nasal pyramid.Additionally septal cartilage was taken to augment both the nasal dorsum and the columellar although the improvement on augmentation was limited by the amount of scarring present from either the previous surgery or the initial trauma.

At a post-operative visit one week following the surgery I noted that Mr Hong's cosmesis had improved significantly but the infra-tip lobule was certainly flattened as may be expected in a reconstruction procedure.Mr Hong was due to return for a further review on the 27th of September 1995 but did not keep this appointment.I have therefore not seen the patient since this time.

Reconstructive surgery with the use of cartilage following either previous surgery or previous trauma unrelated to the surgery is difficult and almost invariable produces a result which is sub-optimal when compared with the pre-morbid state.I reiterate that this is usually related to scarring of the septum and lower lateral cartilages where it tends to reduce the height of the nasal tip regardless of any augmentation undertaken.

Should you have any further questions regarding Mr Hong or his management please do not hesitate to contact the writer by telephone, facsimile or letter.

With kind regards.

Yours sincerely,"

In July 1996 the plaintiff withdrew from the tertiary course he had re-enrolled for in January 1996 to take the same subjects he had withdrawn from in July 1995.His evidence concerning the reason for that was extremely vague and unconvincing so far as he attributed that action to his experiences in 1995.He said he did not go on because he suffered a lot of distress associated with his appearance and his enthusiasm had waned.From my observation of the plaintiff while he was giving evidence I could not see anything unusual about his appearance, and when I asked Mr Humphries, who appeared for the plaintiff, if there was anything about the plaintiff's appearance he wished to draw to my attention, perhaps by a closer inspection, he said there was nothing.The plaintiff related that he was told by Mr Diamantis, after the operation that surgeon carried out, that his nose would be "okay".The plaintiff did not return for the review Mr Diamantis wished to conduct on27th September 1995.The plaintiff gave no satisfactory explanation for that.

The plaintiff enrolled in January 1997 for the first year of a Batchelor's degree in Asian Studies.He said that upon matriculation in 1994 he had nominated a degree in commerce as his first choice for a University course, but he was offered a place in his second choice, computer studies, which he hoped would lead to a career in computer systems operation with a bank or the like. No evidence was adduced as tothe salary which such a position might command. In his new academic direction he looks forward to being qualified to enter into export/import as a business man.Again no evidence was given concerning the remuneration such a position might command.

I find that by about the end of September 1995 the plaintiff had fully recovered from his surgical ordeals.He makes no complaint now of any physical sensations in relation to his nose and, as I have said, his appearance is unremarkable.Judging from the photographs ExhibitP3 the plaintiff's nose is narrower than it was before the defendant's procedures but I suspect that is the result the plaintiff was hoping to achieve.Insofar as the plaintiff implied any continuing psychological or emotional effect persisted after about the end of September 1995 I am not persuaded on the balance of probabilities that that is the case.

There is no doubt and I find that the defendant was incompetent in the procedures she carried out on the plaintiff's nose.Not only has she chosen not to defend the plaintiff's claim to that effect, the opinions of Mr Diamantis upon the defendant's lack of appropriate skill or training are testament to her incompetence.

It was submitted the court should award exemplary damages against the defendant, Mr Humphries stating from the bar table that he had spoken to the Registrar of the Authority which oversees medical practitioners in New South Wales and was informed that the defendant is not a medical practitioner registered in that State.As I informed Mr Humphries, I am not prepared to accept that information as evidence in the plaintiff's case.

The occasions for an award of exemplary damages are those where a defendant has been guilty of"conscious wrongdoing in contumelious disregard of another's rights" (per Knox CJ in Whitfield v DeLauret & Co. Ltd.(1920) 29 CLR 71 at 77) and perhaps where compensatory damages (including any aggravated damages) would be inadequate to punish the defendant for his outrageous conduct so as to mark the Court's disapproval of such conduct and to deter the defendant from repeating it:Rookes v Barnard (1964) AC 1129.

If it had been proved that the defendant had carried out the procedure on the plaintiff's nose in contravention of the law in New South Wales I would have been prepared to consider an award under the head Mr Humphries seeks, but it seems to me that the unanswered plea in the plaintiff's statement of claim that the defendant represented she was a medical practitioner, when she was not, cannot be acted upon by the court as proof of that as a fact or that the procedure the defendant carried out upon the plaintiff was in contravention of the law.

The plaintiff by his counsel seeks damages for pain, suffering and loss of amenities, the recovery of the amount he paid for the nasal procedure, the medical and like expense incurred for the operations he underwent to correct the defendant's incompetent work, the liability the plaintiff incurred under the HECSScheme for the wasted academic year 1995 and for the loss he will suffer by reason of his delayed entry into the workforce.He also seeks as a component of the award the HECS fees he incurred in 1996 a year in which he abandoned his studies, but I have already said I am not satisfied that his withdrawal from study in that year was attributable to the consequences of the events in 1995.He, further, claims a proportion of the amount, $200 to $300, he paid for accommodation in Campsie in relation to the operation on his nose. In my opinion the plaintiff is not entitled as part of an award of damages to recover the cost of the operation he underwent on his nose at the hands of the defendant or the accommodation cost which might be identified as related to that.The plaintiff's claim is that his nose reconstruction by the defendant was incompetently done and he has incurred expense in having the consequences of the defendant's incompetence corrected.For that expense he is entitled to be compensated. He is not also entitled to, in effect, be reimbursed the amount paid to the defendant for the accommodation costs related to the operation by the defendant.If the nose operation carried out by the defendant had been competently done, the cost of it would have been the amount paid by the plaintiff to the defendant plus the accommodation costs.In the event that occurred the plaintiff has had to pay amounts to Mr Diamantis and others to remedy the result of the defendant's negligence;it is those amounts to which he is entitled.

I am prepared to accept the plaintiff's evidence that HECS fees for each semester in 1995 were the same as those in 1996 (Exhibit P8), namely $915 per semester.They are not payable until the plaintiff begins to earn income so there should be some discount to reflect the present value of a sum payable in the future.The present value of$1 at 3% payable in three years time is approximately 91.5 cents.I will use that as a guide.

The plaintiff's loss of earning capacity for his delayed entry into the workforce is an appropriate head of loss, but in the absence of any evidence as to what he might have earned in his first year of employment and allowing for the plaintiff not completing or deferring his tertiary course, for reasons unrelated to the consequences of his mistreatment by the defendant, the plaintiff cannot complain if the award under that head is small.I will allow $5,000.00.

In relation to the claim for pain and suffering I think the plaintiff must accept some of that would have occurred if, for example, Mr Diamantis had carried out a reconstruction of the plaintiff's nose in the first place;it seems to me the plaintiff would likely have undergone such an operation in any event.

I assess the plaintiff's damages as follows:

Pain and suffering and loss of amenities$ 5,000.00

Special damages

Mr Diamantis$2,123.55

Dr Rose$30.70

Dr Dhillon (Anaesthetist)$327.80

Eastside Day Surgery$450.00

$ 2,932.05

Impairment of earning capacity$ 5,000.00

Reimbursement ofHECS fees

for 1995 discounted to a present

value$ 1,700.00

In relation to the item Special damages I note that benefits have been paid by the Health Insurance Commission and that pursuant to the Health And Other Services (Compensation) Act 1995 (Commonwealth) the plaintiff has received notice that those benefits are payable by him from the damages he receives (Exhibit P6)..

The total assessment is $14,632.05.For some of the amounts (or a proportion of them) in the assessment the plaintiffis entitled to interest to the date of judgment.I fix a lump sum of $400.00 in lieu of interest.There will be judgment for the plaintiff against the defendant in the sum of $15,032.05.