Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Deductibility of specific benefits and amounts - Pensions and superannuation benefits - Disability support pension.

National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569; Redding v Lee [1983] HCA 16; (1983) 151 CLR 117, applied.

Muscat v Statewide Industries Pty Ltd [1988] 1 Qd R 637; Renehan v Leeuwin Ocean Adventure Foundation Ltd [2006] NTSC 4; (2006) 17 NTLR 83, followed.

Sorenson v Woolnough [1989] Tas R (NC) 15; A32/1989; [1989] TASSC 36; Burbury v Sievers A83/1994; [1994] TASSC 132, not followed.

Damages - Particular awards of general damages - Tasmania - Psychiatric disorder and facial nerve damage - General damages $95,000.

Judgment Number: [2012] TASSC 13

1 The defendant, Dr Wayne Martin, is a dentist. On the afternoon of 24 April 2002 the plaintiff, Raymond Delphin, went to see him at his surgery in Burnie for treatment as a patient. Mr Delphin had had most of his lower teeth extracted in the 1960s, when he was teenager. He wore dentures, and had been having trouble with his lower denture. Dr Martin thought the problem was being caused by a small remaining fragment of a tooth extracted long ago, and commenced a procedure for the removal of the fragment. However the problem was being caused not by a fragment, but by an impacted tooth, only a small part of which was visible. Dr Martin encountered problems, and aborted the procedure. Mr Delphin left the surgery that afternoon with permanent facial nerve damage. His mental health subsequently deteriorated to such an extent that he resigned from his employment and has never worked again. He has sued Dr Martin for damages for negligence and breach of contract, alleging that he failed to take reasonable care in providing dental treatment to him, and in failing to warn him of the risks associated with the treatment that he embarked upon.

2 When Mr Delphin went to see Dr Martin in April 2002, he had three impacted teeth that he did not know about - one in the upper left quadrant, and two in the lower right quadrant. To the best of his knowledge, he had had all his lower teeth, except the six front ones, removed when he was 13 years old, and all his upper teeth removed when he was 18 years old. He first saw Dr Martin as a patient in August 2001, for a filling to one of his remaining lower teeth. Dr Martin had no reason to detect any of the impacted teeth on that occasion. The visit to Dr Martin's surgery on 24 April 2002 was Mr Delphin's second visit to him as a patient. He had the last appointment of the afternoon.

3 In accordance with his usual practice, Dr Martin had two staff members present for the procedure. One acted as the assistant, remaining beside the patient in the chair. The other acted as the "roamer", fetching whatever was needed. On this occasion the assistant was Mr Delphin's then girlfriend, Karen Ward, and the roamer was Helen Taylor. Much of what happened that afternoon is undisputed, but there are some significant areas of dispute. Evidence was given at the trial by all four of the individuals who were in the room at the time. Both members of Dr Martin's staff gave evidence for Mr Delphin.

4 The impacted tooth that was causing Mr Delphin trouble with his denture was the rear lower right tooth. That tooth is known as the lower right third molar, or as tooth 48. Over time, Mr Delphin's mandible - his jaw bone - had grown around that tooth so as to partly encase it. The appropriate procedure for extracting the tooth, in those circumstances, involved removing a little of the mandible, dividing the tooth into sections, and extracting one section at a time. That is a procedure that not all dentists are willing to undertake, but Dr Martin had performed such procedures routinely, though not frequently, over many years. He completed his studies in 1970, and has practised as a dentist ever since, mostly in country towns, but also in the Royal Australian Navy.

5 Dr Martin had two x-ray machines in his surgery at that time. The more sophisticated one was an orthopantomogram, also referred to as an OPG machine. It was not in use. Ms Taylor gave evidence that that machine was in working order on the day in question, but that they did not have any chemicals at the surgery to develop films from it. That evidence was unchallenged and uncontradicted, and I therefore accept it. The other machine at the surgery was a digital machine. It had the advantage of providing an image that could be viewed immediately on a computer screen, but images from that machine contained a lot less detail than images from the OPG machine. It is common ground that Dr Martin commenced the procedure for the removal of a tooth fragment without first taking an x-ray.

6 Before the appointment in question, Mr Delphin had seen a dental prosthetist who worked with Dr Martin about the problem with his lower denture. As a result of a conversation with that prosthetist, Dr Martin believed that Mr Delphin was coming to see him in order for a tooth fragment to be removed. He looked inside Mr Delphin's mouth, saw what he believed to be a tooth fragment, gave Mr Delphin a local anaesthetic, and commenced the appropriate procedure for the removal of a tooth fragment. He used one of his instruments, a luxator, to try to loosen what he believed to be a tooth fragment. All of that is undisputed.

7 In his evidence Dr Martin gave a very detailed account of what happened after he began the procedure. Ms Taylor, who has had decades of experience as a dental nurse, also gave a detailed account of what happened, and her account was significantly different from that of Dr Martin. However it is common ground that at some point Dr Martin realised that he was dealing with a whole impacted tooth, not just a fragment; that some periapical x-rays were taken using the digital machine; and that Dr Martin encountered difficulties which caused him to decide not to proceed any further.

8 Mr Delphin saw Dr Martin eight days later, on 2 May 2002. Dr Martin referred him to an oral and maxillofacial surgeon, Mr Player, for the removal of the impacted tooth. On 28 June 2002, Mr Player surgically removed all three impacted teeth under a general anaesthetic. In the course of that procedure he also retrieved a fragment of the crown of tooth 48 that had been displaced into the soft tissues of the floor of the mouth during Dr Martin's procedure. Mr Player did not give evidence at the trial, but letters from him and an OPG x-ray taken by him were tendered as exhibits. Counsel for Mr Delphin called an eminent oral and maxillofacial surgeon from Melbourne, Mr Story, as an expert witness. Counsel for Dr Martin did not rely on any expert dental evidence apart from that given by his client.

9 The allegations of negligence made against Dr Martin in these proceedings can be summarised as follows:

• Failing to take an OPG x-ray, or any x-ray, prior to surgery.

• Failing to warn Mr Delphin of the risk of damage to his facial nerves.

• Failing to take reasonable care to avoid damage to facial nerves.

• Failing to take reasonable care to ensure that a tooth fragment did not lodge in the floor of the mouth.

• Attempting to remove the impacted tooth when he did not have the appropriate skills or experience.

10 There was a contractual relationship between Mr Delphin and Dr Martin. There is no suggestion that by their contract they agreed to exclude or limit Dr Martin's duty to exercise reasonable care and skill. The contract therefore contained an implied promise that he would exercise reasonable care and skill in the performance of dental services for Mr Delphin. In that situation, for the purposes of both the law of tort and the law of contract, the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill: Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 487; Doolan v Renkon Pty Ltd [2011] TASSC 4 at par[35].

11 It is clear from the undisputed evidence of both Mr Story and Dr Martin that the extraction of an impacted lower third molar, even when carried out by the most prudent practitioner, involves some risk of (a) damage to the mandibular nerve, (b) damage to the lingual nerve, and (c) at least when, as in Mr Delphin's case, there are no other teeth remaining in the area, a fracture of the mandible.

12 At Dr Martin's surgery in 2002 the staff had printed forms which patients could sign to confirm that they had had explained to them the procedures that were to be performed, their possible after effects, and their costs. No such form was ever signed by Mr Delphin. None of the witnesses suggested that any warning was given as to the possible after effects of a procedure for the removal of a tooth fragment. There was conflicting evidence as to what, if anything, was said, and when, as to the possible after effects of the extraction or attempted extraction of the impacted tooth. According to Mr Delphin's evidence, Dr Martin said nothing to him about that subject until after aborting the procedure. He said Dr Martin told him that he had taken a fair bit of bone from the jaw; that he was worried that he could do some jaw damage; that he was worried that he was going to sever a nerve; that he had taken the crown off the top of the tooth; and that "the feeling would come back in a couple of hours".

13 Dr Martin had a very different version of events. In an answer to an interrogatory, he said this:

"I advised the Plaintiff that such tooth [ie the impacted tooth] should be extracted before he was fitted with a part lower denture.

I believe that I advised the Plaintiff that paresthesia resulting from such procedure was a remote possibility and in accordance with usual practice I believe the Plaintiff was advised of the intended procedure and the possible after effects and costs associated therewith."

14 In his evidence-in-chief, he said that he realised that what he was trying to remove was more than just a tooth fragment; that he therefore took some x-rays; and that he believed he explained certain things to Mr Delphin after that. The evidence as to what he believed he explained proceeded as follows:

"Did you have any discussion with Mr Delphin at that time about what you'd found on the x-ray?.....I believe we explained that this was not just the tooth fragment we expected and that this was a full tooth and that we could go ahead now to do it if you wished.

You said 'we'?.....Well including the staff. I, yeah.

What did you explain to Mr Delphin?.....I explained that this was not just a tooth fragment that it was a whole tooth and that we, and I could remove it. I felt confident that I could do it.

Did you tell him there could be any complications from what you were going to do, proposing to do?.....Certainly my normal routine is and I believe I did make comment to it but, not elaborating too much because it was, I didn't see it as being particularly difficult.

What do you normally say?.....I normally would suggest that there's a small, very remote chance of any sort of numbness, permanent numbness or prolonged numbness after even an inferior alveolar nerve injection and after impacted teeth are removed, that there's always a very, very minor threat of the nerve being damaged by bruising or and it could cause a slight numbness, or a permanent numbness. That could go for days but more often than not they do recover.

Did you say anything about your experience with the, in respect of permanent nerve damage?.....I know that I have spoken about, there's only one other case in my history that I know of, of one patient being, having a paresthesia which did recover eventually. But it was a longer term one.

Did you tell Mr Delphin that?.....I believe I did.

Did Mr Delphin indicate that you should or shouldn't proceed with the?.....He certainly didn't say 'no'.

Did he say 'yes'?.....Yes.

And did you proceed?.....I proceeded."

15 Under cross-examination, Dr Martin said that he would have explained "that it was a bigger job than we thought" after realising that fact. However it was then put to him that he did not remember giving such an explanation, and he agreed. Plainly his evidence as to warning of risks was based entirely on reconstruction or, to put it less charitably, wishful thinking, rather than on a memory of events.

16 When Mr Delphin was cross-examined he conceded that Dr Martin may have told him that he had an impacted tooth, and that he may have told him that he was going to remove it, but he was adamant that he was not told about possible nerve damage, and that he did not give Dr Martin authority to proceed. He said Dr Martin did not give him the opportunity to make an informed decision.

17 It was put to Ms Taylor in cross-examination that Dr Martin had told Mr Delphin that there was a possibility of numbness afterwards that could last hours through to days, but rarely longer. She denied that anything to that effect was said. She said she did not recall any discussion about numbness at all, but that something could have been said about numbness at the time of administering the local anaesthetic. Ms Ward also said that she did not recall Dr Martin saying words to the effect that there was a possibility of numbness which could last for hours through to days, but rarely longer.

18 There are good reasons to think that, if warned of the possibilities of nerve damage, either before any dental work commenced or even after the start of the procedure to remove a tooth fragment, Mr Delphin would have elected not to have had the impacted tooth removed. According to his evidence, he had worn upper dentures since he was 18, but for most of the time had not worn lower dentures because he found them difficult to use and felt that he could manage well without them. In 2001 he was advised to get some lower dentures made, and did so, but they rubbed uncomfortably on the right side, resulting in a little ulcer. It was the difficulty that he had with the new lower denture that led him to see the dental prosthetist and ultimately go to Dr Martin for the removal of what was thought to be a fragment left over after the extraction of most of his lower teeth. He said that he had had no pain in his jaw, would have had no problem going on in life without having anything done, and would have not gone to the extreme of having the impacted tooth removed if he had been told of a one per cent chance of permanent nerve damage and numbness in his face. In the nine years from the aborted procedure to the trial, he had not regularly worn a lower denture. He did concede, under cross-examination, that he would have had the impacted tooth extracted if he had been told of a risk of infection, but there does not seem to have been any significant risk of infection. There was certainly no suggestion of any relevant infection in the decades between the extraction of most of his lower teeth and Dr Martin's procedure.

19 In the light of the evidence I have referred to, I am satisfied that Dr Martin did not give Mr Delphin an opportunity to make an informed decision as to whether he should proceed to remove the impacted tooth. I am satisfied that, if told that he had an impacted tooth, told of the risk of facial nerve damage, and told that he could either have it extracted by Dr Martin, have it extracted by an oral surgeon, or not have it extracted at all, he would not have chosen to have Dr Martin extract it that afternoon. I therefore do not accept Dr Martin's evidence as to the conversation that he believes would have occurred.

20 In my view, the extraction of the impacted third molar involved a risk of nerve damage to which a reasonable person in Mr Delphin's position, if warned of the risk, would be likely to attach significance. It was certainly a risk to which Mr Delphin, if warned, would have been likely to attach significance. It was therefore a material risk that Dr Martin should have warned Mr Delphin about: Rogers v Whitaker (above). I am satisfied that Dr Martin breached his contractual and non-contractual duties to Mr Delphin by failing to warn him of the risk of nerve damage associated with the extraction of the tooth.

21 Mr Story stated in a report that was tendered as part of his evidence-in-chief that it was completely inappropriate, and not accepted practice, to commence a procedure for the removal of a tooth fragment without first taking an appropriate radiograph (ie x-ray) and formulating an adequate treatment plan. There was evidence from Ms Taylor that Dr Martin had attempted to remove a root fragment using his luxator without having taken an x-ray. Mr Story was asked whether it was appropriate to use a luxator to attempt to "winkle out" a tooth fragment. He responded, "If you'd made a diagnosis and knew that it was a root, yes, it is entirely appropriate, but you would have to have made a diagnosis by taking a radiograph and saying yes I've got a small piece of root here, I'll winkle that out with an elevator, entirely appropriate."

22 His assertion that it was inappropriate to begin a procedure for the removal of a tooth fragment without first taking an appropriate x-ray was neither challenged nor contradicted.

23 Both Mr Player's OPG x-ray and Dr Martin's digital periapical x-rays showed that Mr Delphin had an impacted tooth, not a retained root fragment.

24 Mr Story gave evidence that the mandibular nerve, also known as the inferior alveolar nerve, has "a variable course". That is to say, its position varies from patient to patient. He explained that it supplies sensation to the lower right lip, the lower right chin, the mandible, individual teeth, and the gums surrounding the teeth. He said that an OPG radiograph shows everything, including an indication of where the mandibular nerve is. On the other hand, he said that a periapical x-ray like that taken by Dr Martin will only give some indication of where that nerve is. When he compared Mr Player's OPG x-ray with Dr Martin's x-ray, he concluded that Dr Martin's x-ray did not give a clear indication of the mandibular nerve's location because of the angulation of the film, and that it gave a misleading indication of the position of that nerve.

25 None of the evidence from Mr Story that I have referred to was challenged or contradicted. On the basis of that evidence, I am satisfied that Dr Martin's contractual and non-contractual duties of care required him (a) not to commence a procedure for the removal of a tooth fragment without first taking an x-ray, and (b) not to embark upon a procedure for the removal of an impacted lower right third molar without first taking and viewing an OPG x-ray. There was no urgency. He could have taken the x-ray and asked Mr Delphin to return at a later date, allowing time for the film to be processed. He breached his contractual and non-contractual duties to Mr Delphin by commencing the fragment removal procedure without first taking an x-ray, and by commencing the extraction of the impacted tooth without first taking and viewing an OPG x-ray.

26 Mr Delphin gave evidence to the effect that he has experienced numbness affecting part of his face ever since the procedure in April 2002. He described the affected area as including the right side of the face from the centre of his mouth, out towards the right ear, including an area beneath the mouth, part of his tongue, his lower right teeth, the bottom of his jaw, and a section of his face.

27 After examining Mr Delphin in May 2005, Mr Story said the following in his first report:

"Examination revealed the right side of the tongue to have approximately 80% of normal sensation. The lower right lip and skin over the right chin was only between 0% and 5% of normal. This means that the lip and chin on that side are almost completely numb. The gingival (gum) tissue around teeth 43, 22, 41 and on the residual edentulous ridge on the lower right side of the mandible are approximately 50% of normal sensation. Mr Delphin states that he has difficulty wearing his lower partial denture and that it is uncomfortable and that whilst chewing the sensation in the mouth is unpleasant."

28 In one of his letters Mr Player described what he saw of the mandibular nerve when he operated in July 2002. He wrote the following:

"At time of surgery it was noted that the inferior alveolar bundle appeared significantly 'frayed'. It was intact, but only just."

29 Mr Story gave evidence that Mr Delphin's history and appearance on examination were consistent with Mr Player's statement that the nerve was "intact, but only just". He said that, when Dr Martin was drilling, the drill bit probably went past the body of the tooth into the surrounding tissue and engaged the neurovascular bundle. Under cross-examination, Dr Martin accepted that he had damaged the nerve with his drill.

30 Counsel for Mr Delphin made a submission to the effect that Dr Martin had drilled into the impacted tooth, attempting to divide it into sections, when he did not know where the mandibular nerve was because he did not have an adequate x-ray. There was controversial evidence as to how many x-rays were available to him, and how much they showed. Two small black and white x-ray photographs, printed alongside one another, were tendered as an exhibit. Dr Martin gave evidence that they were taken during the procedure in April 2002; that he took two more that day, that were no longer available; and that he could see more in his monitor than one can see in the exhibits. He said that he sent in the four x-rays with his original statement. I assume he was referring to a statement furnished to either his insurer or his solicitor.

31 Dr Martin gave evidence that the x-rays he took on 24 April 2002 were digitally recorded in a computer that he had since ceased to use; that he had been storing that computer in his basement; and that he was no longer able to retrieve x-ray images from it. A computer expert, Mr Reid, gave evidence to confirm that the images stored on the computer were irretrievable. However he found that the computer held four irretrievable images that were stored in patient records for Mr Delphin. A date and time, namely "24/04/2002 18:19", was recorded in the computer in respect of each of the four image files. Mr Reid said that that could have referred either to the date each image was created, or to the date when each image was last modified.

32 Counsel for Mr Delphin suggested that the exhibit photographs might not be photographs of Mr Delphin at all, but I accept that they are. I do not think Dr Martin would have been dishonest or mistaken about that. The photographs bear different dates, neither of which is 24 April 2002, but I accept that different dates could have been generated by Dr Martin's computer.

33 Of the two photographs tendered, the left hand one shows the impacted tooth, and the right hand image shows something that could be a tooth, as well as a radiopaque object. Dr Martin said that the former x-ray was taken so that he could see what he was dealing with, and that the latter one was taken when he was attempting to locate the severed crown of the tooth that was later recovered by Mr Player from the floor of the mouth. Apparently Dr Martin put a metal instrument in the mouth, took an x-ray, and hoped that he would be able to find the missing crown fragment by reference to the position in which he had held the metal instrument. Evidently that technique was not successful. Dr Martin said that the unavailable x-rays consisted of another view of the tooth and the surrounding anatomy, showing the surrounding anatomy better than the x-ray that became an exhibit, and another x-ray depicting the metal instrument, also taken in the hope of locating the missing crown fragment.

34 Counsel for Mr Delphin cross-examined Dr Martin as to whether the unavailable x-ray had ever existed. The x-rays that are still available were listed in Dr Martin's list of documents, prepared by his solicitors in 2006, but no other x-rays were referred to in that document. Dr Martin gave evidence to the effect that he did not pick up their omission. Under cross-examination, it took a long time for him to acknowledge that there had been an omission. Counsel for Mr Delphin cross-examined Dr Martin on a letter written by Dr Martin to his solicitor in March 2006, prior to the preparation of the list of documents. In that letter Dr Martin referred to a single "preoperative periapical radiograph", and also said, "Other PA radiographs were taken in the course of the difficulties to attempt to locate the dislodged fragment using a straight instrument to help in the location". However there was no reference to a fourth periapical radiograph taken to show the position of the tooth and the surrounding anatomy. When asked about that, Dr Martin pointed out that his letter did not say that only three radiographs were taken, and said he believed that four were taken. He conceded that he believed there were four because of information received from the computer expert.

35 In July 2010 Dr Martin's solicitors wrote to Mr Delphin's solicitors saying this:

"We are instructed that Dr Martin took a number of periapical radiographs during the procedure. These scans were recorded electronically on a computer. They were not printed out and Dr Martin has since upgraded his computer and the old computer was thrown away. He is unable to recall the date that the computer was thrown out other than to instruct that it was 'ages ago'."

When cross-examined about that letter, Dr Martin said that his solicitors had got it wrong, and that the computer was "put away from out of the room" or "thrown out of the room or whatever but it was not thrown away at any time".

36 Mr Story examined the available x-rays taken by Dr Martin. He said that the left hand image did not show the complete tooth or the complete surrounding anatomy, and that it would be inappropriate to proceed without further imagery because of the risk of damage to adjacent structures including nerves. It is clear from his evidence that he considered that the right hand image showed much less than the left hand one. Dr Martin claimed in his evidence that he could see enough in the x-rays for him to proceed with the removal of the impacted tooth.

37 I found Dr Martin's evidence about the unavailable x-rays, and what they showed, unimpressive and disturbing. I am not prepared to place any reliance on his assertions that one of them showed more of the anatomy surrounding the impacted tooth than the relevant available x-ray. Nor am I willing to place any reliance on his evidence that he was able to see more on his computer screen than one can in the relevant available x-ray. Dr Martin may not have been a dishonest witness, but my impression of him is that his stated recollections tended to be strongly influenced by wishful thinking. By contrast, I think the evidence of Mr Story was very impressive and reliable. On the basis of Mr Story's evidence, I am satisfied that the x-rays taken by Dr Martin were inadequate for him to proceed with the extraction of the impacted tooth, and that they created a misleading impression as to the position of the mandibular nerve. I infer that Dr Martin placed reliance on an x-ray that gave him a misleading impression as to the position of that nerve, and consequently failed to take reasonable care to avoid damaging the soft tissue in the area where that nerve really ran, with the result that he damaged the nerve with his drill.

38 According to Mr Story, it is unusual for fragments of tooth crowns to be displaced into the soft tissues of the floor of the mouth. He said that an inference of an inappropriate use of force might be drawn from such displacement.

39 Ms Taylor gave evidence that, when Dr Martin was using the luxator, he was using more and more force as time went on. She said that Dr Martin "was getting quite titchy", and that, when he does so, he "tends to bang instruments down onto the bracket table and his demeanour changes, he gets quite snappy at us and even the patients". She said that that occurred on the day in question.

40 Mr Delphin said that he could sense that Dr Martin was "getting nervy and edgy as the time went on and on". He also said, "I could feel he was agitated and getting nervous and stressed - you could feel it in him - but he was pushing down with a lot of pressure".

41 It is true that Ms Taylor's evidence about the use of force while wielding the luxator related to a time before drilling commenced. The tooth crown fragment was severed as a result of drilling. However, her evidence, as well as Mr Delphin's, tends to confirm Mr Story's opinion as to an inappropriate use of force. The reason for the displacement of the crown fragment into the floor of the mouth was not dealt with during Dr Martin's evidence.

42 On the basis of the evidence I have referred to, I accept that the crown fragment was displaced into the floor of the mouth as a result of the use of excessive force by Dr Martin. There is no suggestion that Mr Delphin suffered any significant harm as a result of the displacement of the crown fragment and its later removal by Mr Player. However the evidence relating to its displacement tends to suggest that Dr Martin took a somewhat slapdash approach to the task of extracting the impacted tooth.

43 Ms Taylor was a confident and impressive witness. She has been a dental nurse since 1972, and has worked in the same surgery as Dr Martin for 27 years, although she no longer works as a nurse assisting him. According to her evidence Dr Martin, after using the luxator with increasing force for some time, decided to try to surgically remove some bone around the tooth fragment (as she thought it was still assumed to be), and began drilling between the gingivae or gum and the tooth, without making a surgical incision into the soft tissue to raise a flap, using an ordinary drill rather than a surgical drill. Mr Story gave evidence that the proper approach involved making an incision so as to raise a flap, holding that tissue out of the way, and removing some of the bone with a surgical drill, not an ordinary drill. Dr Martin gave evidence to the effect that he proceeded as described by Mr Story, and not as described by Ms Taylor.

44 Dr Martin estimated that he had removed something like 1,500 impacted teeth since commencing practice in 1970, many of them third molars. I accept that he routinely extracted impacted teeth in the course of his practice in Burnie, and his previous practice based in Dora Creek and Merriwa in New South Wales. I accept that he also removed a lot of impacted teeth in the course of voluntary work in third world countries. Despite Ms Taylor being experienced, confident and impressive, I am hesitant to make findings that Dr Martin departed so drastically and unnecessarily from the routine procedures for an impacted third molar extraction as to drill without first making the appropriate incision, and use an inappropriate drill. Ms Taylor said that a surgical drill was available. There was no evidence from any other witness to support or refute Ms Taylor's evidence as to the failure to make an incision and the use of an inappropriate drill. One possibility is that Ms Taylor's memory has become inaccurate in the years since the afternoon in question. Another possibility is that Dr Martin, perhaps for emotional reasons, took an aggressive unprofessional slapdash approach to the extraction of the impacted tooth when what he expected to be a simple task at the end of the working day turned out to be a very difficult one. I make no findings as to these aspects of Dr Martin's surgical technique. I need not make any, since the findings I have already made are sufficient for there to be a judgment for the plaintiff.

45 On the basis of Dr Martin's qualifications and experience, I am satisfied that he had the appropriate skills and experience to extract at least some impacted third molars. It is clear from Mr Story's evidence that there were a number of factors that made the extraction of Mr Delphin's impacted third molar more difficult than that task would otherwise have been. The tooth was at a difficult angle. The adjacent teeth had been extracted in the past, and that made the mandible a little less robust. The patient was 48 years old. Difficulties with surgical procedures in that region are common with patients of that age. The tooth had fully developed root apices, making it harder to remove than one with root apices that were not completely formed. The bony impaction was almost complete, making it necessary to remove more bone than would otherwise have been necessary for the tooth to be divided into sections and the segments extracted. However I am not satisfied that Dr Martin lacked the skills and experience to deal appropriately with all those complicating factors. It is true that he ended up aborting the procedure after losing the crown fragment somewhere in the floor of the mouth, losing some of the bone that he had removed, and becoming worried about the risk of a fracture of the mandible. But that state of affairs could have resulted from the use of excessive force and the decision to proceed without an OPG x-ray, rather than from any lack of skills or experience.

46 For the reasons stated above, I am satisfied on the balance of probabilities that Dr Martin breached his contractual and non-contractual duties of care by failing to take any x-ray before commencing to treat Mr Delphin, by commencing an attempt to remove his impacted tooth without having warned of significant risks and without having obtained an adequate x-ray first, and by using excessive force. I am satisfied that, but for his failure to warn Mr Delphin of significant risks, Mr Delphin would not have authorised him to attempt the extraction of the impacted tooth. I am satisfied that, as a result of the breaches of duty that I have referred to, Mr Delphin suffered damage, at least to the extent that he suffered permanent damage to the mandibular nerve, and a fragment of the impacted tooth was lodged in the soft tissues in the floor of his mouth.

47 Mr Delphin is claiming damages in respect of his facial nerve damage and the deterioration of his mental health. It is common ground that the facial nerve damage is a consequence of the dental procedure on 24 April 2002. However counsel for Dr Martin submitted that Mr Delphin's psychiatric condition is substantially the result of pressures in the course of his work, and that the dental procedure had only a small effect. There is also a controversy as to his psychiatric prognosis.

48 I have already summarised Mr Delphin's evidence as to the symptoms of numbness that he experiences, and quoted Mr Story's description of those symptoms in his report of May 2005. Mr Delphin also experiences intermittent aching affecting the side of his face. On the basis of a comment made by Mr Player in a letter dated 12 July 2007, I am satisfied that Mr Delphin will never achieve any significant improvement to his facial symptoms without surgical intervention. Mr Player corresponded with a plastic surgeon in 2007 about the possibility of a nerve graft, but no such procedure was undertaken, and I have no evidence as to whether a nerve graft might relieve any of the symptoms to such an extent as to be worthwhile. There is evidence that suggests that Mr Delphin would be extremely reluctant to submit to further facial surgery.

49 Evidence relevant to Mr Delphin's mental state, its causes, his psychiatric history, the extent of his psychiatric impairment, and his psychiatric prognosis was given by five experts and a number of lay people. His counsel called a psychiatrist, Dr Farnbach, and two psychologists, Mr de Jong and Dr Jacobs. Dr Martin's counsel called two psychiatrists, Dr Sale and Dr Rose. Other relevant evidence came from Mr Delphin himself, his son Jason Delphin, his former boss Mr Cairnduff, and Ms Ward, who of course was his partner at the time of the unfortunate dental procedure. In my view Jason Delphin, Mr Cairnduff and Ms Ward all gave honest and reliable evidence about matters relevant to Mr Delphin's psychiatric history.

50 Mr Delphin was married for about 25 years. He and his wife separated in early 1999. His wife had been having an affair with Ms Ward's husband, and left to live with that man. Subsequently, Ms Ward and Mr Delphin became partners, but they did not live together.

51 There is nothing to suggest that Mr Delphin had any psychiatric difficulties before he learned of his wife's affair. He was working for a company that sold concrete and masonry products as its sales representative for the north west coast. The west coast fell within his jurisdiction. He was highly regarded within the company. He was involved in football, basketball and athletics as a coach and as an administrator. He played golf. He played the guitar. He was very confident, very outgoing, and very well presented. He liked a good time. His son said that he was inspirational, and that he was a motivator.

52 He was upset by the revelation that his wife had been having an affair, and by the breakdown of their marriage. He took a little time off work. On the basis of the evidence of the witnesses who knew him, it seems that the separation had little or no apparent lasting impact on his work, his outlook, or his social, sporting and recreational activities. However it is clear from his emotional state when giving evidence about the separation, and from the evidence of his son, that he still finds it upsetting to think about it.

53 Records relating to Mr Delphin from a number of medical practices were tendered during the trial. It appears from them that he sought no medical help in relation to any psychological difficulties until several months after the breakdown of his marriage. On 10 August 1999 he saw an East Devonport general practitioner, Dr Monks, and had a long talk to him about the separation and sexual difficulties. He had another long talk with Dr Monks some 11 months later, on 14 July 2000. Dr Monks noted that he was stressed out at work, and was drinking a lot at weekends. Mr Delphin gave evidence that he felt run down at that time.

54 On 31 October 2000 Mr Delphin saw a general practitioner in Wynyard, Dr Solan. That doctor noted a history of poor sleep, early morning wakening, depressed mood, low self-esteem, irrational fear, and panic attacks. He diagnosed an anxiety disorder, and prescribed an anti-depressant called Cipramil. He told Mr Delphin to come back for a review two weeks later, but he did not return. He gave evidence that he was not depressed at that time, and that he did not take the tablets prescribed by Dr Solan.

55 Dr Solan saw him again in relation to back pain on 5 July 2001 and 2 August 2001, but noted nothing in relation to psychological symptoms on either of those occasions. Dr Solan saw him again for a "check-up" on 7 August 2001, and again noted the diagnosis of anxiety disorder, but he ordered a number of pathology tests, prescribed nothing, and noted nothing in relation to psychological symptoms. He saw Mr Delphin four more times in the next four weeks without noting anything about psychological symptoms. Those consultations appear to have related to respiratory problems. Mr Delphin is a smoker. It seems that he got influenza that year. Trawling through his medical records apparently did not produce any other references to psychological symptoms that pre-dated the dental procedure.

56 During his evidence-in-chief, Mr Delphin was asked what he felt during that procedure. He answered as follows:

"I felt terrible. I, it went on and on and on and I thought well, when's it all going to end. I was only supposed to be here for 10 minutes and, when he went on and on and I just, I felt trapped in the chair and I started shaking inside and feeling ill and just wanting to get out of there and I couldn't move I thought I was just floating around the room and I got that way, I didn't know. I just, didn't want to be there you know. I felt powerless and all the time I could feel Karen was getting agitated and Dr Martin, I could feel that my jaw, being pressed down, I started getting pain in the jaw, you know, it was a horrible experience. I felt as though I was dying. I was just worried for my own safety, not even worried about the procedure just, you know, just when, terrible you know. It was shocking. It's the worst experience I've ever had."

57 Dr Farnbach considers that on that occasion Mr Delphin underwent a major panic attack with significant symptoms of dissociation. None of the other expert witnesses expressed such an opinion, but it may be that none of them elicited or focused on a history of Mr Delphin thinking that he was floating around Dr Martin's room, and feeling as though he was dying.

58 Ms Ward gave evidence that after the procedure Mr Delphin was very shaky, very distressed, and quite upset. Mr Delphin gave evidence that he got no sleep that night, and felt absolutely exhausted. Three days afterwards, on Saturday 27 April 2002, he saw a general practitioner at Dr Solan's surgery. She noted that he felt shivery. She prescribed some medication for his physical symptoms.

59 Two witnesses who knew Mr Delphin described changes in his outlook and behaviour following the dental procedure. Ms Ward said that in the following weeks he was talking about not feeling right, and was uncomfortable, very shaky, and not able to concentrate. He was not feeling up to much social or recreational activity. His appearance no longer seemed important to him. His son said that Mr Delphin came home from the dentist more angry than he had ever seen him, and that in the following days he went downhill, worse than at the time of the separation. He said that he became withdrawn, lost motivation, hated going to work, was complaining all the time, and was doing nothing apart from watching television and sleeping.

60 Mr Cairnduff gave evidence that he did not notice anything about Mr Delphin immediately after the dental procedure but that, over a period of time, his demeanour and general attitude changed, and that his work performance deteriorated to such an extent that it was not up to scratch. He missed meetings, was late for work, and failed to follow things up in relation to major clients. On 4 December 2002 Mr Cairnduff's superior, the company's state manager, sent Mr Delphin an email cautioning him about making unauthorised arrangements with clients, noting that he had not responded to two previous emails, and saying that he expected his support. Obviously his work performance had deteriorated significantly by then.

61 Mr Delphin saw Dr Solan again three times in late 2002 - on 3 October, 12 December and 18 December. On each occasion Dr Solan noted his diagnosis as "Working condition problems". On the first two occasions, Mr Delphin gave a history of poor sleep, early morning wakening, depressed mood, and low self-esteem, but noted that a number of other psychiatric symptoms, including panic attacks and suicidal thoughts, were absent. On each occasion Dr Solan gave Mr Delphin a certificate saying that he would be unfit for work for a short period. Mr Delphin did not use the second certificate. I am not sure whether he used the first or third.

62 On 3 June 2003 Mr Delphin had a long consultation with Dr Monks, who noted that he wanted a general check-up, did not feel well, was finding work stressful, was working long hours, and was not getting much exercise. Dr Monks ordered some pathology tests, and evidently focused on Mr Delphin's physical condition, not his mental state.

63 On 5 September 2003 Mr Delphin was driving near Penguin in the course of his work when he had a panic attack. He gave evidence that he experienced a sharp pain that came straight up through him, that he thought he was having a heart attack, that he pulled over, that he thought he was dying, that he started shaking and sweating, and that he waited until it subsided and then drove to East Devonport to see the doctor. He went to Dr Monks' rooms where he saw another general practitioner, Dr Afroze. She noted a history of suddenly feeling left-sided chest pain, and the left arm going a bit numb, but only for a few minutes. She noted Mr Delphin was anxious. She examined him physically and reassured him.

64 In early 2004, in or about late February or early March, Ms Ward ended her relationship with Mr Delphin. She did that because he had changed. He was no longer the confident outgoing individual that she had befriended. He preferred to stay at home, and to be on his own. Under cross-examination she agreed that he was having difficulties at work, and was grumbling about the hours he was working.

65 It seems that Mr Delphin had difficulties at work dating from the time of the dental procedure, and continuing into 2004. Mr Cairnduff gave evidence that he was arrogant and rude to staff on a couple of occasions. He said he was working about 45 to 50 hours per week. At one stage Saturday work was introduced for about seven or eight months, but Mr Delphin refused to work on Saturdays. The evidence does not suggest that Mr Delphin's duties otherwise became more onerous or more difficult during the years following the dental procedure. There is one piece of evidence that suggests that he resumed coping with his duties, to a degree, by the end of 2003. That was a letter from the state manager of the employer company dated 30 September 2005. However the state manager was not called as a witness. As his assertions in that letter could not be tested by cross-examination and were not confirmed by any other evidence, I will place no reliance on that letter.

66 In late 2004 Mr Delphin saw another general practitioner, Dr Clapton, about difficulties at work. Dr Clapton works in the same practice that Dr Monks worked in, and has been Mr Delphin's general practitioner since that time. On 3 December 2004 Dr Clapton noted, "Experiencing burnout. Nervy, sweaty, teary, depressed. Can't cope with work - putting an unreasonable amount of pressure on him." He prescribed Zoloft, an anti-depressant. Two weeks later, on 17 December, Dr Clapton advised Mr Delphin to leave work, and gave him a letter certifying that he had "a chronic medical condition which is being exacerbated by his present working environment". Mr Delphin had several months' sick leave available. He did not hand in the letter, but he ceased work that month, and went on sick leave. He has not done any paid work since.

67 On 4 January 2005 Dr Clapton saw him again, and noted that he was no better. Dr Clapton saw him again on 20 January and 4 February. He changed his anti-depressant medication from Zoloft to Luvox. He noted on 4 February that Mr Delphin had improved a bit, but was still nervy. On 10 March 2005 Dr Clapton provided him with another certificate saying that he had advised him to leave work on medical grounds. The following day Mr Delphin wrote to Mr Cairnduff tendering his resignation, with effect from 10 April 2005.

68 Mr Delphin's son had been living with him since 1999, but he moved out during 2005. He gave evidence that he did that because Mr Delphin was getting progressively worse, in that he was always negative and doing very little. Mr Delphin formed a relationship with another woman, a neighbour, after the relationship with Ms Ward ended, but that woman wanted a long-term relationship, Mr Delphin felt that he could not handle that, and the woman ended their relationship. Mr Delphin was vague about when that occurred, but it seems to have been in or about 2004. He has not begun another sexual relationship since then.

69 Mr Delphin had an income replacement insurance policy. He made a claim on that policy after resigning from his job. The insurer obtained a psychiatric assessment from Dr Rose in December 2005. He considered that Mr Delphin was not receiving adequate treatment, and recommended some. As a result, Dr Clapton referred him to Dr Jacobs, who is a Devonport psychologist. Dr Jacobs treated him from March 2006 until a month or two before the trial, when he retired.

70 There does not appear to be any controversy as to the nature and extent of Mr Delphin's symptoms during the years Dr Jacobs treated him. In a report written in 2006, Dr Jacobs described those symptoms, as at the time when he first saw Mr Delphin, as follows:

"(a) Symptoms of severe anxiety, ie sweating, tachycardia (heart palpitations), worry, the hyperventilation syndrome (symptoms of light-headedness and shortness of breath), agoraphobia (he was afraid and became very anxious on leaving home and had thus isolated himself to the extent that he was effectively housebound). He was having discrete anxiety/panic attacks, especially on leaving home or being in public places and amongst people. These sudden panic attacks were marked by palpitations, sweating, fear and shakiness.

(b) Symptoms of depression; ie tearfulness, depressed mood, initial and middle insomnia, loss of motivation, loss of energy, libido and appetite and poor concentration. Also, he was withdrawn socially. He was worrying obsessively.

...

In addition, after this traumatic dental experience, he began to show features of PTSD [ie post-traumatic stress disorder] (as defined in the Diagnostic and Statistical Manual of Mental Disorders), ie he had nightmares and intrusive distressing recollections of the event, intense distress at exposure to cues that resembled the event, efforts to avoid stimuli associated with the event (dentists, medical procedures) markedly diminished interest and participation in significant activities, feelings of detachment, restricted range of affect, irritability, concentration difficulties and hypervigilance."

71 It is clear that Mr Delphin improved as a result of the treatment he received from Mr Jacobs. However there was a lot of treatment and not much improvement. Dr Jacobs gave evidence that it took him four years to get Mr Delphin to go to a dentist. He also persuaded him to take up busking in the Devonport mall. By the time of the trial, he considered that Mr Delphin should no longer be regarded as suffering from post-traumatic stress disorder, but that he should still be regarded as suffering from anxiety and depression.

72 Dr Farnbach saw Mr Delphin in February 2008 for his insurance company, and in February 2011 for his solicitors. He considered that he was suffering from a panic disorder with agoraphobia. Mr de Jong saw Mr Delphin at the request of his solicitors in May 2005 and August 2008. He thought he was suffering from post-traumatic stress disorder and depression. Dr Sale saw Mr Delphin in March 2008 at the request of Dr Martin's solicitors. He considered that he was suffering from major depression, but not post-traumatic stress disorder. Dr Rose saw Mr Delphin in December 2005 for his insurance company. He considered that he was suffering from a major depressive disorder and an adjustment disorder with anxiety. In my view there is no need for me to choose between the competing diagnoses. There was no suggestion from any of these experts that Mr Delphin had been fit for any work since he ceased work in December 2004.

73 Dr Farnbach and Dr Jacobs both expressed the view that the dental procedure precipitated Mr Delphin's psychiatric condition. Mr de Jong expressed the view that the condition arose substantially from the dental procedure. None of those experts suggested that Mr Delphin's work or his marital breakdown played any substantial part in causing the psychiatric problems that he experienced between the dental procedure and the trial. Dr Rose did not regard the dental procedure as significant, and seems to have regarded Mr Delphin's work duties as the stressors that precipitated his condition and his consequent incapacity for work. However he examined Mr Delphin only once, back in 2005, and did so at the request of his insurance company. He did not elicit any history of psychiatric symptoms in the two years leading up to Mr Delphin ceasing work. He reported that Mr Delphin was extremely vague about his symptoms and the dates of onset.

74 Dr Sale expressed the following opinions in a proof dated March 2008 that was tendered as part of his evidence-in-chief:

"It appears to me that any contribution made by the dental procedure to Mr Delphin's psychiatric difficulties is probably rather minor.

I note Mr Delphin was capable of working for almost 20 months [sic] after the dental procedure, and from the history provided by Dr Rose, together with the history contained in Dr Clapton's medical notes, it appears that the main cause of symptoms was increase in work pressures and work load."

75 Dr Clapton, like Dr Rose, had cause to focus on the fact that Mr Delphin was not coping at work. Dr Clapton, like Dr Rose, apparently had little reason to focus on the dental procedure. Dr Clapton's notes contained some inaccurate information in a note recorded by Dr Monks on 3 June 2003 which read, "finding work stressful, long hours doing the work that 3 people previously did". Dr Sale referred to that information in his proof, but the information is wrong. The employer used to have three sales representatives for Tasmania, but only had two in June 2003, Mr Delphin being one of them. However that had been the situation for some time, and there was no suggestion that there had been any significant or recent increase in Mr Delphin's workload. Dr Sale had the benefit of a lot of documentary material, particularly expert reports and clinical notes. However he did not have the benefit of interviewing Jason Delphin, Ms Ward, or Mr Cairnduff. I have chronicled very carefully their evidence as to the deterioration in Mr Delphin's mental health following the dental procedure because, in my view, it tends to confirm the opinions of Dr Farnbach, Dr Jacobs and Mr de Jong as to the significance of that procedure in the causation of Mr Delphin's psychiatric problems. With great respect to Dr Sale and Dr Rose, I prefer the evidence of the other three experts on the question of causation. I am satisfied on the balance of probabilities that the dental procedure is the most substantial cause of all Mr Delphin's subsequent psychiatric problems. The marital breakdown may also have played a small part. I do not think his work played any part at all. His work was something that he focused on because of his problems, not something that caused them or contributed to them.

76 Dr Sale is eminently qualified to express an opinion as to Mr Delphin's prognosis, but his report contained nothing on that subject, and he was not asked about it when he was in the witness box. Dr Rose said in December 2005 that the prognosis was uncertain because Mr Delphin was not getting adequate treatment. In a later report in August 2006, after treatment had been commenced, he said that his prognosis for a return to work was uncertain. He was not asked for a more contemporary opinion when he was in the witness box.

77 Dr Jacobs, the expert who has had the most to do with Mr Delphin, dealt with his prognosis in a proof of evidence dated 24 July 2008 that was tendered as part of his evidence-in-chief. He said this:

"His depression and anxiety, however, are so chronic that he will never work. I have attempted to assist Ray in going back to some limited type of employment but he simply cannot do it. His concentration and anxiety symptoms are so chronic that he is unemployable.

Unfortunately for Ray, I'm of the opinion that he is now as good as he will ever likely be."

"The chronicity of Mr Delphin's condition and the modest response to treatment suggest the prognosis overall is rather guarded. However, it is imperative that current treatment continue to prevent relapse and support continued progress, even if it is slow."

79 Dr Farnbach alone seemed optimistic about the prognosis. In his view Mr Delphin is likely to respond to vigorous treatment and might even be able to return to work one day. In a report written in March 2011, he opined that Mr Delphin will require psychological treatment, preferably weekly, focused specifically on his panic disorder with agoraphobia. From what he wrote about the number of sessions that he thought would be required, and their frequency, it seems that he had in mind treatment over a period of around a year. He wrote the following:

"With appropriate and adequate treatment of Mr Delphin's panic disorder with agoraphobia and depression it is possible that Mr Delphin could consider a return to some form of gainful employment ...

...

With Mr Delphin's current treatment ... and no psychological treatment Mr Delphin's prognosis is guarded. I would expect him to have fluctuating and disabling symptomatology indefinitely.

As described above, it is my view that with vigorous and appropriate treatment Mr Delphin's prognosis could be considerably improved.

As a final comment I should point out, however, that even with adequate and appropriate treatment given Mr Delphin's age (57 years) and length of time that he has had significant symptoms (9 years) there is a significant risk that even with appropriate adequate treatment his condition remains chronic and disabling."

80 Thus the state of the evidence is that one psychiatrist thinks Mr Delphin could well become employable as a result of treatment by a psychologist, but neither of the psychologists who gave evidence share his optimism. I think I should accept the evidence of the psychologists as to what treatment from their profession is likely to achieve, especially since Dr Jacobs has spent far more time with Mr Delphin than any of the other experts have. In my view the prospects of Mr Delphin's psychiatric condition ever improving significantly, and the prospects of him ever returning to work, are very poor.

Damages for pain and suffering and loss of amenities

81 Clearly the psychiatric consequences of the dental procedure have been far greater than its physical consequences. In the three years following the procedure, Mr Delphin changed from being a confident, outgoing, well presented individual, respected for his good work as a sales representative, with many interests outside his work, and good relationships with his children and his partner. He became a timid, lonely, introverted, unemployable individual, troubled by a number of psychological symptoms. As I have said, I think the prospects for improvement are very poor. His permanent facial nerve damage has resulted in numbness, aching and difficulties chewing food. It seems that his physical symptoms reinforce his psychological problems on a daily basis. I think he should receive $95,000 by way of damages to compensate him for his pain and suffering, and his loss of amenities.

82 Mr Delphin left school half-way through year 9 and went to work in the Zeehan post office. I think that would have been in 1968. He worked in post offices until 1980. He then worked for a finance company, with duties relating to personal lending and personnel management, until 1982. From 1982 until 1987 he worked in a sequence of three sales jobs in car dealerships. Then he went to work for an insurance company in Launceston as an associate manager. After a couple of years there he worked for a building society, and then for another company that sells cars, before taking a job with Besser in 1992. He worked in the same business, but for companies with different names, from then until ceasing work in December 2004.

83 When he ceased work his gross salary was $48,346. His salary was to have been reviewed in January 2005, but that review did not take place. He was provided with a company car which he was entitled to use for private purposes without restriction. Mr Cairnduff gave evidence that, at the time of the trial, Mr Delphin would have been earning $56,000 per annum gross if he had stayed in the job, and that the salary would have risen gradually over the years.

84 A man born when Mr Delphin was born will become eligible for an age pension, subject to a means test, on attaining the age of 65 years 6 months: Social Security Act 1991 (Cth), s23(5A). In my view Mr Delphin would have worked until at least that age if he had not become incapacitated. The evidence strongly suggests that he had so much drive and so much liking for his work that he may well have continued to work, at least part-time, after the age when most men retire. There is a chance that he might have changed employment at some stage after 2004. There is a chance that he might have moved to a more remunerative position, but there is also a chance that he might have moved to a position that did not last, perhaps as a result of a corporate restructure or a downturn in the business of the new employer. It may be that he would therefore have found himself unemployed, at least for a short period, at some stage after 2004.

85 The evidence suggests that his mental health might have been somewhat vulnerable all along. Most individuals would have been upset by the experience he had at Dr Martin's surgery, but few would have developed psychiatric problems to the extent that Mr Delphin did. I think I should therefore make some allowance for the possibility that, even if the negligence of Dr Martin had not occurred, some other untoward event might have precipitated a significant decline in Mr Delphin's mental health, to such an extent as to have an impact on his earning capacity.

86 Mr Delphin has been receiving a disability support pension from Centrelink pursuant to the Social Security Act for a few years. It is possible that, as a result of him recovering damages in this action, he will be required to refund to the Commonwealth the pension payments that he has received during a statutory "preclusion period": Social Security Act, s1178. In a series of Tasmanian cases, commencing with Sorenson v Woolnough [1989] Tas R (NC) 15; A32/1989; [1989] TASSC 36, social security benefits received after the expiry of a preclusion period, or the possibility of receiving such benefits after a preclusion period, have been taken into account in reduction of plaintiffs' damages. In September 2011, it was argued in an appeal to the Full Court that those authorities should not be followed, and that social security benefits, or the possibility of receiving them, should not be taken into account in assessing damages: Partridge v Hobart City Council, file no 20/2011. The Full Court has not yet given judgment in that appeal. I have delayed giving judgment in this action for several months waiting for the Full Court, of which I am a member, to give judgment. I have now decided that it would not be in the interests of justice to wait any longer, that I should give judgment without further delay, and that I should not take the plaintiff's social security benefits, past or future, into account.

87 There are two High Court cases that deal with the fundamental principles that must be applied in deciding whether a particular type of pension or benefit should or should not be taken into account in the assessment of damages: National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569, and Redding v Lee, Evans v Muller [1983] HCA 16; (1983) 151 CLR 117. It is clear from the judgments in Espagne that it is necessary to determine whether or not the person or body that conferred the benefit intended it to be enjoyed by the plaintiff in addition to any compensation or damages that might be received. If that was intended, the benefit must be disregarded when assessing damages. In Espagne, it was held that invalid pension payments under the statutory regime then in force were intended to be received in addition to any other entitlements, and that they were therefore to be disregarded in the same way as payments pursuant to a disability insurance policy or payments from a benevolent fund. In Redding v Lee, Evans v Muller - two appeals that were heard consecutively, but decided together - all members of the High Court decided that the principles expounded in Espagne had to be applied: Gibbs CJ at 126; Mason and Dawson JJ at 137; Murphy J at 148 - 149; Wilson J at 151; Brennan J at 159; Deane J at 168. Their Honours differed as to what results should flow from applying the established principles to the facts of the two appeals - one relating to invalid pensions and the other to unemployment benefits - but nothing now turns on that.

88 Some four years later, the present statutory regime was established by amendments to the Social Security Act 1947 (Cth), which took effect as from 1 May 1987: Social Security and Veterans' Affairs (Miscellaneous Amendments) Act 1986 (Cth). The same statutory regime has been reproduced in the current Social Security Act. When a lump sum is received by way of compensation or damages, the "compensation part" of the lump sum is ascertained. When the damages have been assessed by a judge, the secretary of the relevant department, or his delegate, is required to determine what part of the payment is in respect of lost earnings or lost capacity to earn: s17(3)(b). The compensation part of the lump sum is then divided by the "income cut-out amount". The resulting figure becomes the number of weeks of a preclusion period, during which no benefits are payable: s1169(1).

89 It has been held in other jurisdictions that payments of social security benefits to which such a statutory regime applies are not to be taken into account in the assessment of damages: Muscat v Statewide Industries Pty Ltd [1988] 1 Qd R 637 (Ambrose J); Dabinett v Whittaker [1989] 2 Qd R 228 at 232 (Thomas J, with whose reasons Andrews CJ agreed, obiter); Renehan v Leeuwin Ocean Adventure Foundation Ltd [2006] NTSC 4; (2006) 17 NTLR 83, 151 NTR 1. In Renehan, at par[207], Mildren J said:

" ... I think the preferable view is that it is intended by the Social Security Act that, to the extent that the plaintiff may get an award which is more than he is obliged to repay, he can keep the excess. That being so, no deduction will be made for that possibility in the calculation of the loss."

90 There was similar reasoning in the two Queensland cases to which I have referred. Applying Espagne and Redding v Lee, it was held that Parliament intended social security payments received after the end of the statutory preclusion period to be enjoyed in addition to any damages that a plaintiff might recover, and that such payments were therefore not to be taken into account in assessing damages.

91 Underwood J (as he then was) took a different view in Sorenson v Woolnough (above). He referred to and followed a number of cases decided under the pre-1987 statutory regime, in which it was held that unemployment benefits were to be taken into account in assessing damages. Wright J decided that payments of disability pensions should be taken into account in the same way in Burbury v Sievers A83/1994; [1994] TASSC 132. Parts of that judgment were reported in both the Tasmanian Reports and the Motor Vehicle Reports, but nothing was reported as to the relevant point. His Honour referred to Redding v Lee but said, at 46, par[173]:

"To test the legislation by reference to whether or not it is intended to confer a benefit upon an injured person, irrespective of whether that person has a right to claim damages or compensation from another party is not a wholly satisfactory test."

92 Those cases have been followed by other Tasmanian judges ever since. They were followed by Crawford J (as he then was) in Stoward v Joron Pty Ltd B66/1994; [1994] TASSC 180, and by me in Anthony v Tasmanian Alkaloids Pty Ltd [2004] TASSC 118, par[83]. The point has never been argued in the Full Court, though there have been appeals in which the Full Court has followed the Tasmanian single-judge decisions: Pasminco Australia Ltd v Gasu A42/1996; [1996] TASSC 76; Marlow v Walsh [2008] TASSC 58 at pars[171] to [175].

93 Since the correctness of the single-judge decisions was not challenged in either of those Full Court appeals, I do not regard them as binding in relation to the point. I consider myself bound to apply the principles laid down by the High Court in Espagne and affirmed in Redding v Lee. I think the relevant legislative provisions have made it clear that Parliament intended the recipients of social security pensions and benefits, if they had claims or entitlements to damages or other compensation for their injuries, to keep the payments that they received after the expiry of the statutory preclusion period, in addition to any damages or compensation that they might receive. Applying Espagne and Redding v Lee, it follows that social security payments received after the preclusion period must not be taken into account in reduction of damages. I therefore regard Sorenson v Woolnough and Burbury v Sievers as wrongly decided. The authorities relating to judicial comity were usefully reviewed by Lindgren J in Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150, at pars[68] to [88]. In my view, the principles of judicial comity do not require me to follow the Tasmanian decisions because, with great respect to the learned judges who decided them, I think they were plainly wrong in relation to the point in question.

94 If Mr Delphin had remained working for the same employer from 2004 until the present day, I estimate that his net income would have been as follows:

95 There are some things that I need to explain about the above table:

•

The gross figures were suggested by Mr Delphin's counsel, and are based on Mr Cairnduff's evidence.

•

The gross income for 2005 represents the gross salary of $48,346 as at the time Mr Delphin ceased work, adjusted upwards to make allowance for the salary review scheduled for January 2005.

•

I have assumed that the gross salary would have remained at $56,000 per annum from July 2010 until the present time.

•

The levies referred to are the Medicare levy, which applied during all the relevant financial years, and the flood levy, applicable only in the 2012 year. The amount of the flood levy payable by a taxpayer with a gross income of $56,000 is $30.

•

The figures for income tax, levies and net income differ from the figures submitted by counsel. The above figures have been calculated on the basis of the rates fixed by the tax legislation.

96 On the basis of those figures, I calculate that the amount Mr Delphin would have earned if he had stayed in the same job after his date of resignation (10 April 2005) until the present day would be as follows:

97 As I have mentioned, Mr Delphin has done a little busking in recent years. His earnings from that activity have been insignificant. He has undertaken restoration work on a number of cars. Some people can make money doing that, but there is no suggestion that Mr Delphin has done so, or that he is ever likely to do so. He has earned nothing since his resignation in April 2005.

98 Allowance must be made for the fact that Mr Delphin's remuneration package included the provision of a company car, which he was entitled to use for private purposes without restriction. It is an agreed fact that the value of that benefit was $5,000 per annum. The value of that benefit from the commencement of Mr Delphin's retirement on 11 April 2005 until the present day, a period of six years 353 days, is therefore $34,809. It follows that the amount required to compensate him for the loss of his earnings and the loss of the company car for that period totals $329,274. However some allowance should be made for adverse contingencies during that period, particularly the possibilities of unemployment, under-employment, and incapacity due to psychiatric problems. I will deal with superannuation separately. Without taking superannuation into account, I consider that Mr Delphin should recover $265,000 to compensate him for the past impairment of his earning capacity.

99 From the figures above, it appears that Mr Delphin would now be earning $44,780 per annum after tax if he had remained in his employment, and would have had the benefit of a company car, worth an additional $5,000 per annum. I will therefore proceed on the basis that, apart from superannuation benefits, his remuneration package would now have been worth $49,780 per annum after tax. That is the equivalent of $950.31 per week.

100 Mr Delphin will become eligible for a pension in a little under seven years' time. The amount required to compensate for a loss of $957.31 per week for a period of seven years, adopting a discount rate of 7 per cent in accordance with the Common Law (Miscellaneous Actions) Act 1986, is as follows:

The multiplier of 291 is derived from Luntz, Assessment of Damages for Personal Injury and Death, 4th edn, page 683, Table 2.

101 In assessing damages for the impairment of Mr Delphin's future earning capacity, it is necessary to take into account the usual adverse contingencies, including mortality, unemployment, under-employment, early retirement, and ill health. For the reasons I have explained, mental health is particularly significant in Mr Delphin's case. On the other hand, it is also necessary to take into account the favourable contingency that he may well have continued to earn an income, at least part-time, after reaching the age of pension eligibility. Allowance should also be made for the possibility, which I regard as slight but not insignificant, that he might resume some sort of remunerative work, perhaps part-time, and perhaps after future psychological or psychiatric treatment being successful to some degree. Taking all those matters into account, I think he should receive $215,000 to compensate him for the impairment of his future earning capacity. This figure makes no allowance for the loss of superannuation benefits.

102 If Mr Delphin had remained working, his employer would have paid superannuation contributions for his benefit. Counsel agreed at the trial that, to compensate him for the loss of superannuation benefits, he should receive by way of damages 10 per cent of the amount awarded in respect of lost wages. To calculate the appropriate figure, it is necessary to disregard the components in my above calculations that are attributable to the provision of a company car.

103 In assessing damages for past economic loss, before allowing for contingencies, the provision of the car was valued at $34,809, which was 10.57 per cent of the total figure of $329,274. Wages represented the other 89.43 per cent. Mr Delphin's damages for the loss of past superannuation should therefore be calculated as follows:

104 In assessing damages for future economic loss, before allowing for contingencies, the provision of the car was valued at $5,000 per annum, representing 10.04 per cent of the total figure of $49,780 per annum. Wages represented the other 89.96 per cent. Mr Delphin's damages for loss of future superannuation benefits should therefore be calculated as follows:

105 It was agreed at the trial that Mr Delphin's past medical and other expenses amounted to $13,709. He must recover that amount.

106 Mr Delphin takes anti-depressant medication which costs $33.10 per box, or $23.17 per week. In my view he is likely to need medication costing about that much for the rest of his life. The amount required to compensate a man of Mr Delphin's age for expenditure of $1 per week for life is $558.70: Luntz, (supra), page 692, Table 3D. It follows that the amount required to compensate him for the cost of medication is as follows:

107 It is an agreed fact that it costs Mr Delphin $55 to see a general practitioner. I accept that he needs to see one about six times per year. That represents a cost equivalent to $6.35 per week. Applying the same multiplier, the amount required to compensate for that expenditure for the rest of his life would be $3,547.75. However I think I should discount that figure because most people need to see a general practitioner occasionally, especially in the last decades of their lives. I think Mr Delphin should recover $2,000 in respect of future consultations with general practitioners.

108 In respect of future treatment by psychologists and psychiatrists, counsel for Mr Delphin relied on Dr Farnbach's evidence. According to Dr Farnbach, the appropriate treatment and its likely costs are as follows:

•

Inpatient treatment in Melbourne for 20 to 30 days, costing about $650 per day.

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Consultations with a psychiatrist during the inpatient period, six times per week, costing $150 to $200 per consultation.

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Consultations with a psychologist on 24 subsequent occasions at an agreed cost of $206 per session.

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About eight subsequent sessions with a psychiatrist.

109 In my view those figures are based on an optimistic prognosis. If Mr Delphin does not submit to inpatient treatment in Melbourne, or does not respond to it as Dr Farnbach hoped, it is likely that his ongoing treatment will be substantially more costly. It is therefore appropriate that I assess damages for these future expenses on the basis of Dr Farnbach's evidence as counsel urged me to do. On that basis, I think Mr Delphin should recover damages as follows:

110 To summarise, I consider that Mr Delphin should recover the following in respect of future medical and other expenses:

111 I therefore asses Mr Delphin's damages as follows:

112 I order that judgment be entered for the plaintiff in the sum of $677,037.