DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The plaintiff in this proceeding is a 45 year old woman who claims damages for personal injury and consequential loss suffered by her as a result of the alleged negligence and/or breach of contractual duty by the defendant following the plaintiff’s consultation with and treatment by the defendant for dental services “… from on or about 21 December 1998 until in or about December 1999.”^[1]

Defendant’s non‑appearance at Trial:

2. [2]
   At the commencement of the Trial of this proceeding, there was no appearance by or on behalf of the defendant. For record purposes, I recite a short chronology of events immediately preceeding the commencement of the trial.

3. [3]
   Despite the solicitors on the record for the defendant having acted for him for a number of years since filing a Notice of Intention to Defend in this court on 5 September 2002, a “Notice That Party Acting In Person” was filed on 9 March 2007 and a copy of that notice was forwarded to the plaintiff’s solicitors by the defendant’s former solicitors under cover of letter dated 16 March 2007, which is Exhibit 1 in these proceedings.  Further correspondence dated 21 and 22 March 2007 from the plaintiff’s solicitors to the defendant personally was tendered by plaintiff’s counsel, (Exhibit 2 in this proceeding), dealing with formal trial matters in respect of advising the defendant of the Medical Practitioners intended to be called and inquiring whether the defendant required copies of any relevant documents.

4. [4]
   I was informed at the hearing that at the call-over of cases (on 21 February 2007) when this matter was set down for hearing the defendant was represented at that call-over hearing by counsel and solicitors, so that it could be reasonably assumed that the defendant was well aware that the trial was to proceed on 26 March 2007.

5. [5]
   Notwithstanding the defendant’s failure to appear and the correspondence tendered, before the trial commenced I requested that the plaintiff’s solicitor contact the defendant’s former solicitor to inquire as to whether he could inform the court of any further developments so far as the defendant was concerned of his knowledge of the trial date. The response communicated to the Court was that the defendant’s former solicitor had stated to the plaintiff’s solicitor that as a result of a discussion the defendant’s former solicitor had with his client before the Notice That Party Acting in Person had been filed, the solicitor “was under the impression ……that the defendant may not turn up to-day……”.^[2] 

6. [6]
   Pursuant to r 476 of the Uniform Civil Procedure Rules 1999, the trial then proceeded in the defendant’s absence.

The facts:

7. [7]
   The plaintiff’s evidence is that in August 1998 she consulted the defendant who is a dental practitioner to have amalgam fillings in her teeth “… removed and replaced with inert fillings purely for health reasons.”^[3]

8. [8]
   During the course of her consultations with the defendant for these services, she had a conversation with him concerning the appearance of her front teeth, as she had noted that her “… front left tooth crossed over the right one just a little bit and I said that it would be really nice to have them straight … and I said but I’m not willing to have braces.”^[4]  At the time the plaintiff was writing a book and intended to pursue future speaking engagements, as well as promotional work for the book and wished to present herself as best she could.  She advised the defendant that it would “… be nice if my teeth were straight” but she “… was completely unwilling to have braces.”^[5]

9. [9]
   The plaintiff’s evidence was that in response to the plaintiff’s comments about not wearing braces, the defendant said to her “But you don’t need braces. I can organise an expansion plate for you that means you could have straight teeth without having to have braces.”^[6]  This was the first person who had told her that her teeth could be straightened “without any braces”.^[7]

10. [10]
    The plaintiff’s evidence was that the defendant explained to her how the “… expansion plate [would be] fitted on the top jaw and it’s got a little mechanism in it that winds out so every couple of nights you wind it out and it widens the arch.  So where I had kind of a V on the top and the bottom it actually expanded the top jaw into a more of a U-shape and creating that space means that the teeth – the front teeth would be straight.”^[8]

11. [11]
    The plaintiff further stated that the dental plate was fitted “on about the 30^th of October 1998”^[9] and that she wore the plate “… through to January 2000”.^[10]

12. [12]
    The plaintiff further stated that she “periodically” consulted the defendant at his surgery during the period from October 1998 to January 2000, during which time “… he put some bonding on my teeth”.^[11]  She further stated that when she returned to the defendant on “… the first occasion after the plate was inserted …” she complained to him “… that it was very painful and uncomfortable like continuously and made it extremely difficult to eat.”^[12]  Her evidence was that the defendant responded to this by saying “well that’s to be expected because we’re putting pressure on your teeth so you know you’ve got to expect that.”^[13]

13. [13]
    The plaintiff further stated that she relied upon the defendant’s skill and expertise as a dental practitioner in his continued treatment of her despite the fact that she continued to suffer pain and discomfort in the treatment she received.

14. [14]
    The plaintiff’s further evidence was that the defendant advised her that she could remove the extension plate during the day but wear it at night, which she found “… was really really painful, much more painful because my teeth had moved during the day and so I would have a lot of pain when it went in at night and then over you know after an hour or so it would settle a little bit to the regular dull ache and I told him about that,”^[14]  but she was advised to “… just keep wearing the plate.”^[15]  The plaintiff further stated that she felt the teeth in her “top jaw” became unstable and that she “… could see and feel the movement of my teeth.”^[16]

15. [15]
    The plaintiff further stated that when she consulted the defendant “on various occasions” she told him about the “pain and discomfort” she was enduring and she gave the following evidence:^[17]

“And did he at any stage suggest that he should stop treating you and that you should be treated by an orthodontist?--  No.

Did he at any time of the commencement of his treatment give you any warning about any adverse consequence that might be suffered by you both in terms of pain or teeth malalignment or jaw malalignment should you carry on with the treatment that he, in fact, gave you?--  No.”

16. [16]
    The plaintiff gave further evidence that she developed “gingivitis” as a result of her inability to floss her teeth and that she now has “some gum recession”.^[18]

17. [17]
    The plaintiff’s further evidence was that she continued to consult the defendant “until January of 2000”,^[19] at which time she sought other advice.

18. [18]
    The plaintiff was subsequently advised that she needed “… braces top and bottom to realign your teeth …”.^[20]  As a result of this advice, she “… was really shocked and very distraught and very upset about it,” as she was “… 37 years old [and] there was no way in the world I wanted to have braces.”^[21]

19. [19]
    The plaintiff’s evidence was that this further treatment would prolong the period of discomfort and embarrassment and affect her earning capacity “… because of all of the appointments I was going to have to attend”^[22] with respect to the additional dental work to be undertaken.

20. [20]
    The plaintiff’s evidence was that at or about this time (February 2000) she was “… working in the speaking industry … doing presentations to corporate groups around communications, stress motivation … [which] affected my performance because of the pain and also it affected my speech.”^[23]  In addition she “… was concerned about my appearance.  It looked awful.”^[24]

21. [21]
    The plaintiff subsequently underwent “extensive orthodontic work”^[25] by a number of specialists set out in Exhibit 3 in this proceeding and it was not until December 2003 that the braces fitted to her teeth were ultimately removed and the problems she has encountered were resolved. 

Liability:

22. [22]
    The plaintiff’s claim is pleaded in negligence and contract alleging breaches by the defendant of his general duty of care to the plaintiff and of his failure to carry out his contractual obligations “… in a reasonable and competent manner in all of the circumstances.”^[26]  From a practical point of view, the particulars of the alleged breach of contract and/or breach of duty of care by the defendant are identical.

23. [23]
    The principles of the general duty of care owed by one person to another are long established and have been repeated from time to time since Donohue v Stevenson.^[27] They were succinctly restated by Mason J as he then was in The Council of the Shire of Wyong v Shirt and Ors (1980) 146 CLR 40 at 47-48 [referred to also by Brennan J in Jaensch v Coffey (1983) 155 CLR 549 at 563] when he said:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors”.

24. [24]
    The High Court further discussed the “foreseeability” test in Nagle v Rottnest Island Authority (1993) 177 CLR and cited with approval what was said in Shirt’s case that: “…a risk may constitute a foreseeable risk even though it is unlikely to occur.  It is enough that the risk is not far-fetched or fanciful”.

25. [25]
    The duty of care owed by a medical practitioner to his patient was likewise succinctly stated by the High Court in the matter of Rogers v Whitaker (1992) 175 CLR 479 at 483 (Rogers v Whitaker) when it said:^[28]

“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment.  That duty is a ‘single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skills and judgment’^[29], it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case.  It is of course necessary to give content to the duty in the given case.

The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill …(in the particular area of expertise).”

26. [26]
    In Rogers v Whitaker, the High Court cited with approval the dictum of King CJ in the matter of F v R who said in that case:^[30]

“The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law.  That is a question for the court, and the duty of deciding it cannot be delegated to any profession or group in the community.” 

The High Court then referred to King CJ’s further dictum with approval:^[31]

“… that the amount of information or advice which a careful and responsible doctor would disclose depended upon a complex of factors:  the nature of the matter to be disclosed; the nature of the treatment; the desire of the patient for information; the temperament and health of the patient; and the general surrounding circumstances.” 

Reference was also made to a passage in the judgment of the Supreme Court of Canada in Reibl v Hughes.^[32]

27. [27]
    In Rogers v Whitaker, the court further stated:^[33]

“In legal terms the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended.  But the choice is in reality meaningless unless it is made on the basis of relevant information and advice.  Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone, or for that matter of the medical profession.  Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which a responsible professional opinion will have an influential, often a decisive role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order.  Generally speaking, it is not a question the answer to which depends upon medical standards or practices.”

28. [28]
    Further, at p 490, the court said:

“The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.  This duty is subject to the therapeutic privilege.”

29. [29]
    The plaintiff’s evidence in this matter was that it was the defendant who offered and in effect volunteered to straighten her front teeth “without having to have braces”^[34] and then embarked upon a treatment regime for which she relied entirely upon the defendant’s knowledge and expertise to achieve the intended result.

30. [30]
    Subsequently, she sought other advice when problems occurred in respect of pain, gum difficulties and loose teeth which ultimately had to be addressed by specialist orthodontic treatment.

Medical evidence relevant to liability:

31. [31]
    Apart from the various medical reports tendered within Exhibit 3, evidence was also called from a Dr Bassin, who examined the plaintiff in the first instance on 23 December 1999 and “… identified an orthodontic problem and advised her she would benefit from orthodontic specialist treatment and referred her to a highly qualified specialist doctor …”.^[35] As a result of that referral, the plaintiff was ultimately treated by a number of specialists referred to in paragraphs [37] to [43] hereof.

32. [32]
    The medical report dated 6 November 2002 from Dr Squires, orthodontist, within Exhibit 3 confirms among other things that:

• the defendant’s treatment planning, other than general, simplistic statements regarding the defendant’s intentions to align the plaintiff’s teeth was non-existent;
• no problem list or treatment objectives were provided.  The defendant’s statement regarding the ability of the patient’s lower dental arch to compensate for upper dental arch movement is fallacious;
• treatment time forecast was too short;
• the treatment approach adopted was at best simplistic, at worst, plainly wrong.”

33. [33]
    Dr Squires further states that in his opinion:

• “The treatment rendered to the plaintiff by the defendant indicates … that the defendant had no real comprehension of orthodontic diagnosis treatment planning nor treatment.” 
• The defendant failed to investigate properly the plaintiff’s dental condition “… so as to ensure that the plaintiff was not exposed to the risk of gum recession and/or tooth loosening and/or jaw malalignment in the future.”^[36]

Findings on liability:

34. [34]
    Applying all of the relevant principles to the instant facts of this proceeding, I make the following findings on liability:

1. (a)
   In or about August 1998 the plaintiff consulted the defendant, who is a dental practitioner, with respect to having some amalgam fillings removed from her mouth;

2. (b)
   In the course of those consultations, the plaintiff discussed with the defendant the general appearance of her teeth, particularly her two front teeth which slightly overlapped each other and her desire to have them straightened without the necessity to wear braces;

3. (c)
   The defendant offered to provide the plaintiff with a course of treatment to straighten the teeth without the necessity to wear braces by the insertion of “an expansion plate”;

4. (d)
   On or about 30 October 1998 the defendant fitted a dental plate into the plaintiff’s mouth for the purpose of straightening the plaintiff’s front teeth;

5. (e)
   From time to time thereafter and on approximately 28 occasions until 8 December 1999 the plaintiff attended on the defendant for follow-up treatment including among other things adjustments to the dental plate;

6. (f)
   During the course of this period of approximately 13 months, the plaintiff suffered continuous problems with her teeth, including pain, gum recession, loosening of her teeth, as well as embarrassment and anxiety as a result thereof;

7. (g)
   I further find that the plaintiff informed the defendant of these problems during the course of this 13 month period;

8. (h)
   I find further that the defendant did not warn the plaintiff of the risks and/or consequences inherent in the treatment he provided to the plaintiff, which were factors to which the plaintiff would have attached particular significance, particularly in the light of her being about to embark upon a new career which involved constant public exposure;

1. (i)
   I find further that the defendant did not refer the plaintiff to a specialist orthodontist for diagnosis and/or treatment at any time during the period in which she was his patient.

35. [35]
    I find further that the defendant breached his duty of care and/or contractual duty which he owed to the plaintiff in the following manner:

1. (a)
   Failing to investigate, diagnose and/or treat properly the plaintiff in circumstances where the defendant knew or ought reasonably to have known that by failing to do so there was a risk that the plaintiff could suffer a number of dental and other ancillary problems;

2. (b)
   Failing to investigate, diagnose and/or treat the plaintiff’s dental condition so as to ensure that the plaintiff was not exposed to the risk of gum recession and/or tooth loosening and/or jaw malalignment from which the plaintiff ultimately suffered resulting in pain, embarrassment and anxiety when a reasonable and/or competent person in the defendant’s position would have done so;

3. (c)
   Failing to refer the plaintiff to a specialist orthodontist for diagnosis and/or treatment when a reasonable and/or competent person in the defendant’s position would have done so.

36. [36]
    I therefore find that the plaintiff has suffered personal injury loss and other damage as a result of the negligence and/or breach of contractual duty owed by the defendant to her and that she is entitled to be compensated for such injury, loss and other damage she has sustained at the hands of the defendant.

Medical evidence relevant to plaintiff’s quantum of damages:

37. [37]
    After ceasing to be the defendant’s patient in January 2000 the plaintiff consulted a number of dental practitioners for advice and treatment in respect of her then condition whose medical reports were tendered and included in Exhibit 3 in the proceedings.

38. [38]
    As stated in paragraph [31] above Dr Bassin gave evidence that he is a dental surgeon who examined the plaintiff in December 1999 and among other things stated that he “… would not have treated this case myself …” and believed that it would have been “… an appropriate case for an orthodontic specialist referral.”^[37]  Dr Bassin further stated that the plaintiff presented to him “with malocclusion” which he described as “… teeth are not coming together in an ideal manner.”

39. [39]
    No other dental practitioners were called to give evidence, but a number of medical reports were tendered in evidence and form part of Exhibit 3 referred to above.

40. [40]
    A medical report dated 15 February 2000 from Dr Eric Saacks, orthodontist, states that when the plaintiff consulted him in February 2000, she presented “… with the following orthodontic problems:

“(1) a Class II division 2 malocclusion

(2) expansion of the upper arch which now does not match the lower arch form resulting in buccal cross‑bites.

(3) maxillary diastemas which have been filled by composite restorations which are now breaking down.”

Dr Saacks “… recommended that [the plaintiff] undergo comprehensive orthodontic treatment in combination with orthognathic surgery.”

41. [41]
    In a medical report dated 24 February 2000, Dr Glenn Staples, orthodontist, stated “The treatment performed by [the defendant] in my opinion was inappropriate” and that the plaintiff would have to consider a number of “options” to address her orthodontic problems.

42. [42]
    Dr Medland of Medland Orthodontics recommended a treatment plan for the plaintiff in consultation with other specialist dental practitioners including periodontists and extensive remedial work was carried out by Dr Medland as set out in his “Patient Treatment Chart Data” contained within Exhibit 3.

43. [43]
    The plaintiff confirmed that she was required to wear braces as recommended by Dr Medland continuously from January 2001 through until April 2002 “……and when they came off, the teeth weren’t quite right, so I had a series of retainers and Invisalign braces for, you know – for quite an amount of time, and Dr Medland thought that that would actually fix – you know, do the final fixing, but it didn’t, so in the end we put the braces back on in November 2003 and they came off in December 2003.”^[38]

44. [44]
    The braces which were fitted by Dr Medland “… were permanent railway tracks, top and bottom, with elastic bands criss‑crossed pulling tension on them, the whole bit.”^[39]  The ultimate requirement to wear the braces was contrary to the plaintiff’s specific instruction to the defendant that she did not wish to do so if this was the only procedure that could be adopted to straighten her teeth

45. [45]
    The plaintiff’s evidence was that as a result of the braces being fitted she felt “self‑conscious, embarrassed, unwilling to eat in public, and it made it very difficult to eat even when I was at home because everything had to be soft foods and cut into really small pieces and apart from that there was a lot of pain involved in having it done … it was kind of uncomfortable all the time obviously most especially when everything was tightened up …”^[40]

Past economic loss:

46. [46]
    As at October 1998, the plaintiff was not in permanent employment, though qualified as an accountant in which capacity she had previously worked, but was “… in the throes of preparing to launch a book and to get into the speaking circuit.”^[41]

47. [47]
    The plaintiff’s evidence in respect of her claim for past economic loss is that at about the time she consulted the defendant in October 1998, she expected to be “doing promotional speaking … promotional work” to promote her book but with respect to her proposed “speaking career or motivational speaking career”, her first “… paid presentation was in December 1999 and that was at the Institute of Chartered Accountants.”^[42]

48. [48]
    The plaintiff then commenced a course of study in Australia and America in 2000 and while “… doing these courses …” she also had “engagements in between courses.”^[43]

49. [49]
    From the financial information and documentation tendered the plaintiff’s earnings in the three financial years immediately preceding her consultation with the defendant in October 1998 were of very modest proportions and in aggregate amount to a little over $31,000.00. Her income for the next four financial years to 30 June 2002 was of even more modest proportions, with no taxable income being earned in the 1999 and 2000 financial years and only $12,500.00 in aggregate being earned in the 2001 and 2002 financial years.  It was not until the 2003 financial year that the plaintiff’s gross income gradually increased to a peak in 2005 of $84,000.00 and then suffered a further slump in 2006 to $35,000.00.

50. [50]
    The assessment of the plaintiff’s past economic loss to date of trial (leaving aside the assessment of future economic loss (if any)) is not without difficulty, and is well encapsulated in the following extract of her evidence:

“And what financial impact – I mean, is it possible for you to say exactly what financial impact Dr Coggin has had upon you and – in terms of your speaking – your career as a speaker?--  Well, I guess it’s actually – well, it’s actually impossible to quantify what the effect would be.

Either for the past or for the future?--  Yeah, yeah.  I don’t think anyone could put a particular figure on that, really.  That’s like having a crystal ball.”^[44]

51. [51]
    A review of the plaintiff’s updated statement of loss and damage filed on 17 January 2007 combined with her financial details and taxation documents including Profit and Loss statements tendered as part of Exhibit 3 shows that her income stream from the 1996 financial year right through to the 2006 financial year has been irregular and spasmodic, a summary of which is set out hereunder.

A perusal of her taxation returns shows that in some years the plaintiff also earned some income from investments unrelated to salary.

52. [52]
    The plaintiff is entitled to be compensated for any loss directly attributable to the second defendant’s breach of duty owed to her.

53. [53]
    As was conceded by the plaintiff’s counsel Mr Egan “… past economic loss can only be globally assessed”, and it was submitted that the Court should take into account that “… in the 2005 financial year the plaintiff earned $85,000.00 from speaking related matters.”^[45]  It must be noted, however, that this has been the optimum gross amount earned by the plaintiff in her capacity as “Sales Advisory Speaker” with her “net income” for the 2005 financial year being $34,893.00.  It is to be noted further that her gross “Speaking Income” for the first six months of the current financial year is stated as $35,040.00 with expenses of $29,110.00, leaving a net income for this period of $5,930.00.

54. [54]
    While the assessment of the plaintiff’s economic loss both past and present is not directly apposite to the principles stated in Malec and Hutton,^[46] the application of those principles is analogous in some respects to the instant case, particularly that passage which states:

“If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring.  The probability may be very high – 99.9 per cent – or very low – 0.1 per cent.  But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages.  Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring.  Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.  The adjustment may increase or decrease the amount of damages otherwise to be awarded.  See Mallett v McMonagle [9]; Davies v Taylor [10]; McIntosh v Williams [11].  The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.”^[47]

Although their Honours Brennan and Dawson JJ thought “… it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage”and “……would not favour the use of the term ‘probability’ to describe the possibility of occurrence of a situation when the possibility is minimal”^[48], the whole court agreed on the basis of the reasons for judgment expressed by Deane, Gaudron and McHugh JJ, where damages cannot be assessed with precision.

55. [55]
    Transposing those principles to the instant case, I find that the defendant’s conduct adversely affected the plaintiff’s earning capacity to some degree for at least a three year period between 2001 and 2003 inclusive, but from the financial records tendered it would appear that the “Advisory Speaking” occupation involves substantial operational expenditure which has a correspondingly substantial impact upon a participant’s net income; see, for example, the plaintiff’s 2001 financial year profit and loss statement, where her “Speaking Income” was $6,299.00 and her expenses $44,200.00 resulting in an “Operating Loss” of $38,000.00. These exigencies must therefore be reflected in any assessment made.

56. [56]
    I therefore find that had the plaintiff not been subject to the defendant’s breach of duty as found, she would have been capable of earning more than she did in the three year period referred to in paragraph [55] above, but I do not accept that the plaintiff’s past economic loss would be anywhere near the figure submitted of $25,000.00^[49] for each of those three years, as the plaintiff’s financial and taxation records since she has completely recovered and has been capable of participating fully in her chosen occupation free from any self‑consciousness or embarrassment, (that is since and including the 2004 financial year), do not support the figure submitted.

57. [57]
    Doing the best I can on the evidence given, the material provided and the exhibits tendered, I assess the plaintiff’s past economic loss to date of trial on a global basis in the aggregate sum of $30,000.00. I allow interest on this sum at the rate of 5% per annum for a period of three years, which amounts to the sum of $4,500.00.

Past loss of Superannuation:   

58. [58]
    I allow the plaintiff a past loss of superannuation component calculated at the rate of 9% per annum on her past loss of income of $30,000.00, that is the sum of $2,700.00.

Future Economic Loss:

59. [59]
    In respect of the plaintiff’s future economic loss, I find that she will be curtailed to a minimum degree in her earning capacity by her being required to attend dental practitioners from time to time for follow-up examination for periodontal maintenance, but these visits should not impact upon the plaintiff’s earning capacity to any greater extent than regular visits to her general dental practitioner in the normal course of dental hygiene. I note that a medical report dated 9 August 2006 from Dr Rachael Garraway, periodontist, states that the plaintiff’s “… periodontal health is stable and she is maintaining a high standard of home care.  As part of a preventative maintenance programme I recommended six monthly maintenance visits with myself and my hygienist.”  In addition, to the periodontal maintenance visits, it is reported by a Dr Rotondo, prosthodontist, that the plaintiff “may anticipate replacing the resin additions every 7-10 years …”

60. [60]
    The plaintiff is presently 45 years of age, and allowing a future working life of say 20 years, I assess her future economic loss in the sum of $10,000.00.

Future Superannuation:

61. [61]
    I assess her loss of future superannuation at the rate of 9% in the sum of $900.00.

Future out of pocket expenses:

62. [62]
    In respect of the plaintiff’s future treatment expenses, there will be the periodontal maintenance work and the replacement of resin additions referred to in paragraph               above, for which the plaintiff claims the sum of $2,500.00, which I accept is a reasonable amount under this head of damage.^[50]

General Damages:

63. [63]
    The assessment of the plaintiff’s general damages in this proceeding is not subject to the legislative changes relevant to claims for damages for personal injury suffered post 18 June 2002 and is therefore to be assessed on the general common law principles applicable to claims arising before that date.

64. [64]
    The plaintiff’s difficulties and problems have been set out in paragraphs [15] to [21] and [37] to [45] above, and taking all relevant matters into account I assess her general damages for her pain and suffering/loss of amenities in the sum of $25,000.00.  I allow interest on the whole of this sum at the rate of 2% for eight and a half years, which amounts to the sum of $4,250.00.

Special Damages:

65. [65]
    The plaintiff claims special damages as set out in Exhibit 3 in the sum of $10,680.00 for all her out of pocket expenses incurred since August 1998 with a substantial proportion of that sum being incurred since January 2001 with the last item claimed in November 2004. I allow special damages in the sum of $10,680.00 with interest for a period of 6 years at the rate of 5% per annum on this sum which amounts to $3024.00 making a total allowance for special damages and interest in the sum of $13,884.00.

66. [66]
    In summary I assess the plaintiff’s damages as follows:

Limitations of Actions Act 1974 (Qld):

67. [67]
    In paragraph 11 of the defendant’s amended defence dated 19 January 2007 the defendant pleads that “… the plaintiff’s claim is statute barred pursuant to s 11 of the Limitations of Actions Act 1974 (Qld) to the extent that the claim relates to any cause of action accrued on or before 21 December 1998 and that therefore the whole of the plaintiff’s claim as pleaded is statute barred.”

68. [68]
    I find that there is no merit in this pleading, as on the evidence before me the plaintiff’s claim arose not earlier than 21 December 1998, as by that date all that had occurred in respect of the defendant’s treatment of the plaintiff was the fitting of the dental plate on or about 30 October 1998 and various adjustments thereto on seven subsequent visits between that date and 21 December 1998.

69. [69]
    I therefore find that the plaintiff’s cause of action was commenced within time pursuant to the Limitations of Actions Act 1974 (Qld).

Contributory negligence:

70. [70]
    Paragraph 12(b) of the defendant’s amended defence dated 19 January 2007 also pleads that any damages to which the plaintiff may be entitled pursuant to her cause of action against the defendant “… should be reduced pursuant to s 10 of the Law Reform Act 1995 (Qld) to the extent that is just and equitable in light of the plaintiff’s default”, particulars of which are then set out.

71. [71]
    On the evidence presented to the court, I am not persuaded that there has been any contributory negligence on the plaintiff’s part, as I accept her evidence that she relied entirely upon the advice and treatment she received from the defendant; followed his advice in respect of the treatment provided by him; informed the defendant of the difficulties she was having in respect of the wearing of the dental plate he prescribed and could not reasonably have known or ought reasonably to have known that she should have sought specialist orthodontic advice and/or treatment and/or any other advice or treatment during the period in which she was a patient of the defendant or at any earlier time than she in fact did. I therefore find the plaintiff did not in any way contribute to such injury, loss or damage she has suffered at the hands of the defendant.

Order:

72. [72]
    I give judgment for the plaintiff against the defendant in the sum of $93,554.00 for damages plus costs of the proceeding including reserved costs (if any) to be agreed or assessed on the standard basis under the appropriate scale with liberty to apply.