Royal Dental Hospital of Melbourne v Akbulut [2002] VSCA 88

2. In September 2001 the respondent Birsel Akbulut (to whom I shall refer as "the respondent") sued The Royal Dental Hospital of Melbourne (which I shall call "the appellant") for damages for personal injuries alleged to have been caused in April 1997 by the negligent extraction of impacted wisdom teeth on the right and left sides of the lower jaw by a trainee doctor (Dr. Grubor) for whose negligence the appellant hospital was vicariously responsible. The trial of the action, which took some 12 days in September 2001 was before a judge of the County Court sitting without a jury. At the time of the trial, the respondent was aged 33 years and was married with a son aged nine years. The respondent was born of Turkish parents in Germany where she lived until she was approximately 17 years of age. Her family then moved to Turkey where, shortly thereafter, the respondent married. She and her husband came to Australia in 1987 when the respondent was 19 years of age. In Australia the husband had a variety of semi-skilled occupations, including employment as a bus and tram driver. The son was born in September 1992 and, between then and early 1997, the respondent was unemployed. It was the evidence at the trial that the respondent had always been interested in music and was an accomplished writer and singer of Turkish songs. Although she had never utilised her talents professionally, it had been her custom to sing from time to time in Turkish restaurants and at weddings and other gatherings within the Turkish community. It was claimed that the respondent had a "head start" within the Turkish community as a vocalist, because her uncle had been a renowned singer in Ankara.

5. In early 1997 the respondent suffered pain in her lower jaw and was referred by her treating dentist to the Casualty and Emergency Section of the appellant's hospital. It appears that her lower left wisdom tooth had partially erupted from the gum and had decayed. The impaction was caused by the tooth becoming "jammed" by the teeth surrounding it. A similar situation existed on the opposite side - that is the right lower jaw where the wisdom tooth was impacted in the same way.

8. The respondent first brought her claim by way of writ in November 1999. In essence, her claim was that she had suffered residual and permanent injuries as a consequence of the doctors employed by the appellant hospital negligently performing the operation to remove her impacted wisdom teeth. She was left, so she claimed, with the anterior two-thirds of her tongue anaesthetised and desensitized as a consequence of the adopted procedures damaging the lingual nerves which serve the senses of taste and feeling in the tongue and floor of the mouth. These injuries, so it was alleged, had led to further disabilities of a physical and psychological and/or psychiatric nature. Those further disabilities included lack of control of the muscles around the mouth giving rise to a tendency to "drool"; aching and "locking" of the muscles of the jaw due to endeavours by the respondent to compensate for the incapacity to control the movements inside the mouth; depreciation of marital status and relationships with her husband and child as a consequence of the "poor self-image" developed by the respondent of herself; development of personality changes involving mood fluctuations to the point of depression, excessive drinking of alcohol and suicidal ideation. The negligence of the appellant hospital was alleged in three ways:-

(a) The failure to advise of the risks involved to the lingual nerves in such operative procedures, so as to enable the respondent to make an informed choice as to whether to adopt those risks.

(b) The carrying out of the operation in a negligent fashion.

(c) The failure, at the post-operative conference, to advise in a timely fashion on the possibilities of surgical intervention to eliminate or diminish the potential for permanent anaesthesia of the tongue and lower jaw.

The respondent's statement of claim underwent a series of amendments culminating in the ultimate claim dated 29 March 2001. This claim raised for the first time the allegation that the injuries suffered by the respondent had lost for her the opportunity to pursue a successful singing career as a Turkish folk-singer. It was said that she had prospects of earning substantial income either as a local or international concert performer from about July 1999 onwards but that she had been deprived of the capacity to accept those opportunities because of the oral deformities and disabilities occasioned by the appellant's negligent treatment. It was claimed that between July 1999 and May 2001 she had been forced to decline offers from Turkish entrepreneurs to perform at concerts either in Australia or overseas which, if accepted, would have returned to her substantial income. This further amended statement of claim also alleged for the first time that the operation of April 1997 had damaged the lingual nerve on the right side of the jaw as well as the lingual nerve on the left side.

14. At the trial the respondent gave evidence that she had not been given any advice, prior to the extraction of her teeth on 3 April 1997, as to the risk of damage that the operation might cause to her lingual nerves resulting in permanent paraesthesia and/or anaesthesia. She further contended that the operation carried out by Dr. Grubor on 3 April 1997 was negligently carried out and resulted in permanent and bi-lateral numbness of the anterior two-thirds of the tongue and the floor of the mouth. Additionally she said that, when she returned for a post-operative consultation on the 28 April 1997, she complained of numbness in the tongue; but claimed that Dr. Aysamy (who saw her on this occasion) told her that the numbness of which she complained would resolve itself, but did not advise her of the consequences which would flow in the event that she was found to have disruption of the lingual nerves and the failure to have surgical intervention within some three to six months. Rather she contended that Dr. Aysamy had made the flippant remark to her that her condition would be "no good for her husband"; and had stared at her breasts in a leering fashion. This conduct, she said, had triggered in her a powerful psychological reaction which led, not only to a complete cessation of contact with the appellant hospital, but also to a depreciating relationship (sexual and otherwise) with her husband. She said that she became pre-occupied with a concern about her husband's reaction to her condition. She claimed exemplary damages from the appellant on account of Dr. Aysamy's conduct.

17. The respondent also gave evidence that she was and always had been fond of music. For many years, she said, she had sung at various Turkish functions in Melbourne in an amateur capacity and had acquired a reputation as a good singer of Turkish folk music. She said that she wrote her own songs and recorded them. Notwithstanding the problems that had flowed to her from the removal of her wisdom teeth in April 1997, she claimed that in 1999 she had recorded on compact disc (CD) a number of songs which she had composed herself. This CD was published for public consumption in the year 2000. Following its publication she received an invitation from a Turkish television station to return to Ankara to take part in a television interview publicising her CD. This she did in the middle of the year 2000 when she appeared on a programme of an hour's length which was broadcast to millions of viewers in Turkey and other parts of the world. She said that, as a consequence, she had achieved additional fame in Turkey and in Melbourne and had been the recipient of a number of requests to appear in restaurants in Melbourne and in concerts in Australia and overseas for large sums of money. Because of the disabilities which had accrued as a result of the dental problems, she was unable to accept those offers. She called at the trial some five Turkish entrepreneurs resident in Melbourne and Turkey who claimed to have made offers to her in 2000 and 2001 of substantial sums of money to take part in concerts here and overseas or to sing in restaurants in Melbourne. The offers, although informal, range from $450 per week in Melbourne to $US150,000 for 17 concerts overseas in Turkey and other countries.

20. The respondent's claim was strongly contested on almost every issue by the appellant at the trial. The appellant contended that the respondent had failed to prove that Dr. Grubor, as its servant, was negligent in operating to remove her wisdom teeth; and/or in failing to advise the respondent of the possible complications which could flow from such an operation. The appellant further contended that Dr. Aysamy was in no way negligent in the advice which he gave to the respondent on 28 April 1997 at the post-operative "follow up". Furthermore, the appellant contended that Dr. Aysamy had not made to the respondent the flippant and "sleazy" comments which she alleged. The doctor denied it and his nurse gave evidence that if such comments had been made she would have remembered them because she was present. She also said that they were totally out of character with the man whom she knew. The appellant also contested the claim made by the respondent that she was suffering from bi-lateral lingual nerve interference. Quite apart from the fact that the respondent's pleadings had alleged only lingual nerve interference on the left hand side until shortly before trial, the appellant relied upon the evidence of a number of expert witnesses who said that the respondent had only complained of "left sided numbness in the tongue". Indeed, the appellant alleged that the respondent's principal expert, Dr. Lacy, had reported "left-sided" numbness following his examinations in 1998 and 1999, and had only reported "total numbness" following a further examination in 2000. The appellant contended that Lacy had become a "captive" to the respondent's cause. In addition to that, the appellant strongly contested the claims of the respondent relating to the damage suffered by her and the loss occasioned consequent upon it. Indeed, to put it bluntly, the appellant contended that the respondent was not a witness of truth and was not suffering to the extent that she was claiming in her evidence. The appellant contended that the fact that she was working regularly as a talk-back host on a Turkish radio station (something which she conceded to have been doing since May 2001), had developed her own CD during 1999 and 2000, and had promoted herself through the Turkish television station, were actions quite inconsistent with the image which she was seeking to promote during the trial. It was put, on behalf of the appellant, that the various "promoters" whom the respondent had called to give evidence, were deliberately organized to build up a "last minute" claim for loss of earning capacity and that the offers made were not legitimate offers. The trial judge, accordingly, was invited to dismiss the claim of the respondent or, in the event that negligence was found, to provide a modest sum for general damages, and nothing on account of the economic loss claimed.

23. The appellant's submissions fell on deaf ears. The judge found that Dr. Grubor had carried out the operation of removing the wisdom teeth in a negligent fashion and that that negligence was a cause of the plaintiff's disabilities. He was not prepared to find on the material that the appellant had been negligent in failing to warn the respondent of the potential risks of the operation; but he did find that Dr. Aysamy had negligently failed to advise the respondent on 28 April 1997 of the need to obtain further advice and, perhaps, surgical intervention to counter the possibility of permanent anaesthesia due to interference with the lingual nerves. Although his Honour made no direct findings as to the consequences flowing from the statements which the respondent alleged Aysamy had made to her on 28 April 1997, he referred in detail to the respondent's allegation that the doctor had made a flippant and inappropriate comment to her and that others had referred to the comment as upsetting and as "sleazy". His Honour said:-

"It was submitted on behalf of the [appellant] that the [respondent's] account of the consultation was a fabrication. I reject that assertion, in part because of Dr. Aysamy's record that his patient was very apprehensive and that he tried to calm her down, in part because of the evidence of Miss Ang. [Miss Ang was a friend of the respondent whom the latter had rung some time after the interview with Dr. Aysamy.] ... It is improbable that the complaint against Dr. Aysamy was fabricated."

The judge made no reference to the fact that during addresses, counsel for the respondent had announced that he was not proposing to assert that Aysamy had intentionally acted in a way which was "sexually or otherwise demeaning of" the respondent. The respondent was, thus, withdrawing her claim for exemplary damages based on Aysamy's conduct.

28. His Honour accepted the evidence led by and on behalf of the respondent that she was well-known in the Turkish community in Sydney and Melbourne as a result of her singing and musical prowess and also her charitable work; his Honour said that although the "community work and her recording are in stark contrast to the account of the respondent and of her husband of depression and thoughts of suicide, her occasional departure from home and her excessive drinking ... [i]t doesn't cause me to question the account given of the severe physical and psychological disabilities that have flowed from the unfortunate outcome of the operation conducted by Dr. Grubor". His Honour accepted the evidence of the respondent that she was suffering both physically and psychologically from the consequences of the interference with the lingual nerves and the effect of that interference upon her tongue, her claim that she could not talk for extended periods and that her singing and capacity to eat were restricted. He said that, in her recounting of these matters, he "found the plaintiff a convincing witness who made no attempt to dissemble or exaggerate her complaints". His Honour said that he had reviewed a video recording of the Turkish television programme in which the respondent had participated in July 2001 and noted that "in public the plaintiff presents as an attractive young woman, assured and with presence". He said that he was satisfied that the video recording had presented the respondent as an accomplished artist and that "it is not surprising that it prompted substantial offers of concert engagements in Turkey, Germany and the Netherlands". (I might say that I, too, have listened to the CD and seen the video and I agree that they present a different picture of the respondent from that painted by the oral evidence.) His Honour took the view that the respondent deserved credit for the fact that, despite her difficulties, she had undertaken these various projects, namely the charitable work, compilation of the CD and the radio programme, when faced with the difficulties which he had outlined. His Honour noted that there was "irony in the fact that the success of the CD and the Turkish television programme heightens the sense of loss that the [respondent] justifiably feels".

31. In contrast to his view of the respondent and the witnesses called on her behalf, his Honour was not so complimentary of the witnesses called on behalf of the appellant. He said that he found Dr. Grubor's evidence unsatisfactory and that his evidential account "was no more than a self-serving account designed to remove any possibility of surgical damage to the lingual nerve"; and that "both expert witnesses" called on behalf of the appellant gave evidence which was, in his Honour's view, characterized by a "defensive and unprofessional approach adopted in these proceedings" by them.

34. As I have already indicated, the judge found that the respondent's complaint that Dr. Aysamy had acted negligently in failing to give proper advice to the respondent when she returned after the operation on 28 April 1997 was made out. His Honour found that whatever was said to the respondent would not have been sufficient to implant in her mind "the essential requirement that her condition be reassessed within three months of the injury". His Honour drew the conclusion, from what he described as "the limited evidence", that the respondent was told that her condition was unlikely to be permanent and that this was "not an adequate warning" of the possibly serious and permanent injury that she could suffer. In that regard, his Honour found Dr. Aysamy had been guilty of negligence for which the appellant was vicariously liable.

37. His Honour next turned to the assessment of damages and, notwithstanding the substantial dispute between the appellant and respondent over this aspect of the respondent's claim, gave very brief reasons for the conclusions which he had reached upon quantum. Because his Honour's assessment of damages has been at the forefront of the appellant's contentions on this appeal, it is desirable that his brief findings be referred to in some detail. His Honour said:-

"I have already given a brief outline of the physical, emotional and psychological consequences of the injuries suffered by [the respondent]. She has profound or total numbness of the left side of her tongue and the floor of her mouth. On the right side there is substantial loss of sensation with very limited response to stimuli. Both conditions result from the removal of the two wisdom teeth and they are permanent. I reject submissions made on behalf of the defendant that the right-sided injury was a temporary condition."

His Honour then referred to the respondent's lack of capacity to sing for any length of time which, as his Honour said, was for the respondent "a very substantial loss". He referred to the psychiatric evidence of "mood swings" and depression, the difficulties in the marriage between the respondent and her husband and her relationship with her son. His Honour noted that the respondent had refused medication for depression, a decision which his Honour said he "respected".

42. His Honour then referred to what he described as "a further element of the damages claim"; namely the loss of past and future earnings from a potential singing career. He said that that claim "can be divided into two aspects" which he described as "evidence of a series of offers made in 1999 and 2000 to sing professionally in Melbourne restaurants and at private functions". His Honour referred to the respondent's evidence that she "enjoyed singing" and her desire "to become a concert artist", but with "little ambition to accept" the offers of singing in restaurants. His Honour then went on to refer to what he described as "a series of more substantial concert offers". He referred to the offer of a concert tour in Turkey of nine performances in return for approximately $A90,000; an offer of $A20,000 for each of four concerts in Australia "conditional on the success of the first concert" and the offer, in November 2000, by a Turkish promoter of concerts in Australia of four concerts at "$A5,000 each". Finally, he referred to the promoter in Turkey who offered a payment of $US150,000 for 17 concert performances over one year. His Honour went on:-

"The [appellant] understandably questioned the validity of this evidence having regard to the fact that [the respondent] is untried as a concert performer. Witnesses were cross-examined as to their involvement in the music industry and financial aspects of their evidence. They said that they hoped to promote a performer who showed great promise. I anticipate that in the event of financial failure the contracts would be terminated. I was impressed by two pieces of documentary evidence produced in court; a dated fax containing one offer and the production of an obviously genuine publicity poster by a second witness. Very substantial fees are paid by promoters to successful singers. I accept that the offers were genuine but consider them to be subject to satisfactory performance. I accept that the [respondent's] physical and psychological condition prevented her accepting the offers. The difficulty for both the promoters at the time, and this court, is that the success of the proposals and the capacity of the [respondent] to develop her singing career is uncertain. That is the case irrespective of her present physical and emotional limitations."

46. His Honour concluded his assessment of the respondent's "general damages" as follows:

"I make allowance under the heading of general damages for the impact of the injuries suffered by the [respondent] on her past and future enjoyment of music and singing. I also make allowance for past and future economic loss of a singing career and observe that care must be taken to avoid duplication of an award. Special damages are agreed in the sum of $1,500 and I allow that item. I assess the plaintiff's general damages in the sum of $225,000."

50. His Honour concluded his remarks on the quantum of damages in the following manner:-

"The [respondent's] past and future economic loss contains many contingencies. I find that over the past four years she would have undertaken a modest amount of local performances for reward with a view to promoting her more ambitious concert career. I allow $20,000 for that item. A more substantial annual income is allowed over five years for future concert performances and that item is heavily discounted because of uncertainty as to the success or duration of that undertaking. There is a further discount for the early payment of damages. I allow $325,000 for that item. The total for economic loss is therefore $345,000."

54. By an amended notice of appeal which was filed with the Court at the outset of the hearing (with the consent of the respondent), the appellant has challenged the trial judge's assessment of damages, but not his conclusions on liability. In particular the appellant contends that the judge's assessment of "pain and suffering damages" was manifestly excessive (ground 2) as was his assessment of pecuniary loss damages; namely loss of earnings and loss of earning capacity (ground 6). In addition to, or as support for, the contention that the "pain and suffering damages" are manifestly excessive, the appellant contends (grounds 1 and 4) that the judge has wrongly found, and incorporated into his award, damages for inappropriate behaviour on the part of Dr. Aysamy on 28 April 1997. The appellant further contends that the judge was in error in rejecting the appellant's submissions that the injury to the right lingual nerve was temporary, without giving any or adequate reasons (ground 3). Finally the appellant contends that his Honour has failed to state any or any adequate basis or reasons for his assessment of pecuniary loss damages (ground 7).

58. An appellate court should be very reluctant to set aside an assessment of general damages made at trial, whether by jury or judge, on the grounds that it is manifestly excessive or inadequate. It certainly will not interfere merely because it would have awarded a different figure. If it cannot be shown that the judge has acted upon any error of principle or misapprehension of relevant facts, an appellate court will only interfere with his or her assessment if it is satisfied that he or she has made a wholly erroneous estimate of the damages suffered[1]. Whilst it remains true that an assessment by a judge is not as inscrutable as an assessment by a jury, simply because the judge is bound to give reasons to enlighten the parties (and the appellate court) as to the basis upon which he or she has assessed[2], it will, nevertheless, frequently be the case that a judge's reasons for his or her assessment of non-pecuniary loss damages will be brief by dint of the circumstance that it will be influenced by the judge's impressions of the plaintiff and the impact of the injury and its consequences to him or her.

61. Bearing in mind the injunctions to which I have referred in the preceding paragraphs, I am nevertheless of the opinion that the $225,000 which the judge assessed for pain and suffering and loss of enjoyment is manifestly excessive, whether one accepts or not the finding that there is bilateral numbness of the anterior two-thirds of the tongue. The sum which his Honour awarded is significantly in excess of the median of the range of figures (indeed even beyond the highest) put by senior counsel for the respondent, who was not the counsel who appeared for the respondent on this appeal, but who is a very experienced practitioner in this jurisdiction. Indeed, no one who knows him would, I suspect, accuse him of being a "shrinking violet" when putting his client's cause to the court in terms of appropriate figures. However, and quite apart from that, I am of the view that his Honour's assessment is wholly disproportionate to the consequences of the respondent's injuries and disabilities when compared with the range of compensable injuries and disabilities of which the law, and human experience, is cognizant[3]. When assessing non-pecuniary loss damages, judges must bear in mind the same things as they would instruct juries to bear in mind; such as the inability to perfectly compensate pain and suffering in terms of dollars and cents; and not to fall into the trap of punishing the wrongdoer and awarding compensation in amounts which individual jurors would want or expect if they were the injured party; and to avoid the risk of "doubling up" by awarding damages under the heading of "loss of enjoyment" when that same loss is to be considered under some other head[4].

64. Mr. Kaye, who appeared with Mr. Jewell for the respondent, sought to justify the judge's award of $225,000 for the non-economic component of damages by reference to the fact that the injury and disability suffered by the respondent is sui generis and by pointing to its impact upon the respondent as the judge had found. So much can be accepted, but it is not to belittle the respondent's injuries and disabilities to say that, in the scale of compensable injuries known to the law, a de-sensitized tongue and its consequences to the recipient, must take its place alongside quadriplegia, paraplegia, brain damage, loss of limbs, etc. which have differing and enduring impacts upon their respective victims. The point was made by Ormiston, J.A. in this Court in the case of Electrolux Pty. Ltd. v. Siniakis[5] where the plaintiff had suffered traumatic damage to his crotch and urethra resulting in permanent impotence. There was, of course, the psychiatric and/or psychological reaction to the consequences. The case was tried by a jury and they awarded general damages of $250,000. This Court reduced that sum to $150,000. Ormiston, J.A. said (at p.41):

"In concluding that the jury's verdict of $250,000 was manifestly excessive, I acknowledge the difficulty of placing a monetary value on concepts such as pain and suffering, loss of amenity and loss of enjoyment of life and all elements which make up non-economic loss. I likewise acknowledge that it is difficult for this Court to have a close familiarity with all awards for non-economic loss, more particularly as most are made by juries in the County Court. Nevertheless one sees sufficient number of cases involving awards for non-economic loss to know that this award was high for any kind of claim other than those involving paraplegia, quadriplegia and similar conditions. If one were to have regard to the amounts awarded by way of general damages in other States where the assessment must be made by a judge, then it would seem, so far as I am able to ascertain, that the worst cases of quadriplegia and the like attract awards in the range of $300,000 to $350,000. ... One must be careful about comparisons, and one may fairly assume that juries in this State have brought in verdicts of that order and possibly higher. Assuming that the relevant range of non-economic damages for such serious injuries is from $300,000 to $500,000, I still cannot accept that $250,000 was appropriate in this case."

Phillips and Hayne, JJ.A. agreed with Ormiston, J.A. Similar comparisons were made by this Court in Crellin v. Kent[6] when reducing a jury's award of $250,000 for non-economic loss to $135,000 in respect of negligently performed surgical procedures producing lack of sexual function.

69. Subject to the observation that each case must, of course, depend upon its own facts, the comments made in Siniakis (supra) remain appropriate, and are apt to this case. In the March 2002 edition of "Comparable Verdicts in Personal Injury Claims" (M.M.G. Britts), and in the tables of "quantum of damages" published in "Australian Current Law" from 1998 to date, recent awards for non-economic loss in serious injury cases have ranged from $250,000 for quadriplegia in New South Wales[7], to $450,000 for quadriplegia in Victoria[8]. When the respondent's injuries and disabilities are placed into this context, the award of $225,000 can, in my view, be seen to be disproportionately excessive. The respondent has not lost her freedom of movement, her capacity to communicate at a superior level, or her ability to earn income at a level above that which she was earning at the time when her injury accrued, although less than the ultimate which she aspired to earn. The latter disability falls to be compensated primarily under economic loss, and care must be taken not to over compensate, on account of it, when assessing non-economic loss; in much the same way as a pianist who loses the use of his or her hands; or a model who suffers unsightly scarring. His Honour noted that care had to be taken to "avoid duplication". If this means that he "scaled back" the damages which he otherwise would have awarded for non-economic loss, it confirms my view that the assessment is a wholly erroneous estimate of the respondent's loss. Many of the respondent's disabilities are psychological or functional and have the capacity to resolve themselves over time. In many respects the respondent presented to his Honour as an enigma because of the work which she had performed and the esteem in which she was held by the Turkish community, notwithstanding her disabilities. As his Honour said:

"The [respondent] is ... well known in the Turkish community in Sydney and Melbourne as a result of charitable work. She received much publicity in the Turkish press as a result of organizing a team of workers to assist persons in need. One of the songs on her C.D. is dedicated to a young Turkish boy who was afflicted by cancer. That community work and her recording are in stark contrast to the account of the [respondent] and her husband of depression and thoughts of suicide, her occasional departure from home and excessive drinking."

His Honour might have added the respondent's assured performance on the Turkish television programme in July 2000 and her work on talk-back radio from May 2001 until the trial. Yet, in spite of these matters which, as his Honour noted, enable the plaintiff to present "in public ... as an attractive woman, assured and with presence", it did not deflect him from accepting the evidence that she was suffering "severe physical and psychological disabilities" as a result of the negligent operation performed by Dr. Grubor. However that may be, and adopting his Honour's conclusion, I am nevertheless forced to the view that his Honour's assessment of $225,000 for the non-economic component of the respondent's loss is manifestly excessive and cannot stand.

75. I am also of the view that his Honour's award of $325,000 to compensate the respondent's loss of earning capacity in the future must be set aside, if only because his Honour has provided no reasons which enable the parties or the Court to determine a rational basis for his Honour's award. His Honour referred to the evidence of offers made to the respondent by a number of persons, offers which invited concert appearances at differing rates in Australia or overseas. However, the offers were neither formal nor formalized and were conditional upon success of the first concert and satisfactory performance. His Honour accepted that the offers were "genuine" but subject to the conditions referred to. He also accepted that the respondent was prevented from accepting the offers by her physical and psychological condition. However, as his Honour said, the difficulty posed for promoters and the Court alike was that the "success of the proposals and the capacity of the [respondent] to develop a singing career" was uncertain and that that was so "irrespective of her present physical and emotional limitations". Against the background of those matters his Honour accepted that the respondent's "past and future economic loss contains many contingencies". Nevertheless, he found that the respondent would have undertaken a "modest amount" of local performances during the four years prior to trial and "allowed $20,000 for that item", and said that he would allow a "more substantial annual income ... over 5 years for future concert performances", but would "heavily discount" the amount awarded because of the "uncertainty" of the success or duration of the undertaking; and would also discount for early payment. So saying, his Honour simply said: "I allow $325,000 for that item".

78. The sum of $325,000 was the largest component of the damages awarded to the respondent. The appellant does not know the basis upon which it is calculated; nor does this Court. Nor, I suspect, does the respondent although Mr. Kaye in his written submissions to the Court has had a "stab" at it by suggesting that it amounts to $65,000 per annum for the five years awarded, which in turn suggests that his Honour has allowed $100,000 net per year discounted by 35%. Mr. Kaye suggests that this would amount to the "heavy discount" which his Honour said that he was proposing to make. The difficulty is that it is just one of a number of methods by which one could seek to justify his Honour's conclusion. It seems far more likely that his Honour did not arrive at his ultimate award by any rational calculation; but rather by a "broad-brush" estimate which he was invited by the respondent's counsel to make. It is therefore open to the same criticism as the awards, similarly made, in C.S.R. Readymix (Australia) Pty. Ltd. v. Payne (supra, at 512-514) and Rosstown Holding Pty. Ltd. v. Mallinson (supra at 310) where Callaway, J.A. said:

"I am ... persuaded that the appellant cannot tell from the reasons the basis on which the figure of $200,000 was assessed and this Court cannot tell whether it was correct (Sun Alliance Insurance Ltd. v. Massoud [1989] VicRp 2; [1989] V.R. 8 at 18). The appellant is entitled to know the basis of the assessment, but so, too, is the respondent. A failure to give reasons disadvantages a respondent as much as an appellant if it deprives the respondent of the ability to defend the judgment."

82. We do not know what his Honour's starting point was, nor the discounts made for contingencies or present payment. There were, as his Honour said, many uncertainties or contingencies which had to be taken into account in determining what the degree of probability was of the respondent having lost an earning capacity as a concert singer as a consequence of her injuries and disabilities above and beyond the earning capacity which she had with those injuries and disabilities. Accepting, as his Honour did, that the respondent had a talent which was marketable at the hands of promoters, the following matters had to be taken into account:

* At the age of 33 she had never sung professionally.

* She still has a talent both to write songs and sing them which also was marketable.

* She has lived in Australia for 14 years, and has a child of school years. Would she sing overseas or seek work in Australia?

* Even without her singing, she has a capacity to earn income as a song-writer and talk-back host on ethnic radio.

In assessing damages which depend upon its view as to what would have happened in the future (or what might or might not occur) if something had not happened in the past, the Court must make an estimate as to what are the chances that the particular thing claimed will or would have happened, and reflect those chances - whether more or less than even - in the amount of damages awarded[9]. Of course, as these authorities make clear, any assessment in respect of matters which might have happened in the future must contain elements of reasonable prophecy but these prophesies must take account of "good and bad" possibilities[10]. However, if the Court is able, on the material, to determine a degree of probability of such events occurring, beyond what is nebulous or speculative, it will take that chance into account in assessing damages for the future. Similar principles apply in the commercial field if, as the result of the defendant's wrongful conduct, the plaintiff can establish the loss of a substantial, as distinct from speculative, commercial opportunity[11]. Counsel for the respondent contended that the material before the judge was sufficient to satisfy him that there was a significant chance that, because of her injuries, the respondent would earn less in the future than otherwise she could have earned. On the other hand, the appellant submitted to his Honour that the uncertainties and contingencies which surrounded the prospects of the respondent earning an income as a concert singer, over and above what she could earn otherwise notwithstanding her disabilities, rendered an award based on such prospects speculative and, if compensable at all, should be compensated only "to the extent of a reasonable and moderate evaluation in money of the mere chance, or risk of ... less remunerative employment"[12]. It is apparent that his Honour rejected this latter approach and assessed damages on some basis which reflected his view that the respondent had lost a compensable chance to earn income above what she could otherwise earn, but - as I have said - has failed to identify reasons for his conclusions, or any ascertainable basis for assessing damages for future loss of earning capacity in the amount of $325,000. In that respect, in my view, ground 7 has been made out. I am also of the view that the amount so assessed is manifestly excessive, and that ground 6 of the amended grounds has also been made out in respect of future loss of earning capacity. That is a matter, however, to which I will have to return.

90. What I have said so far is enough to demonstrate that, in my opinion, the appeal in respect of quantum of damages must be allowed, and the damages re-assessed. It is therefore strictly unnecessary to consider grounds 1 and 4 of the amended notice of appeal; namely that his Honour was in error in making findings, in the course of his reasons, that Dr. Aysamy had engaged in inappropriate behaviour when reviewing the respondent's condition on 28 April 1997, which - so it was submitted - were unnecessary and had erroneously impacted upon his Honour's assessment of general damages. Further, it is strictly unnecessary for me to consider ground 3, which asserts that his Honour was in error in rejecting the appellant's submission, that the injury to the right lingual nerve was "temporary", without stating any basis for the finding and without giving any reasons for it. Nevertheless, it should not be thought that, by not considering these grounds in detail, I am of the view that there is no merit in them. So far as grounds 1 and 4 are concerned I cannot understand why, when respondent's counsel had specifically withdrawn the claim for exemplary damages based on Aysamy's alleged demeaning behaviour, it became necessary for the judge to deal at some length in his reasons with that behaviour and to make a specific finding that it was improbable that the respondent's complaint against Dr. Aysamy was fabricated. No doubt it could be said that the judge was concerned to demonstrate his view that the respondent's credit had not been damaged by her account of that interview, but I am left with the uncomfortable feeling that his Honour has assessed general damages without taking into account the concession which trial counsel for the respondent had made.

93. Furthermore, so far as ground 3 is concerned, the extent of interference with the lingual nerve on the right hand side, and the extent of anaesthesia to the right hand side of the tongue, was a hotly contested issue between the parties at the trial. As I have said, it was only shortly before the trial that the respondent amended her pleadings to complain of "right-sided numbness" and her principal expert, Dr. Lacy, had reported only "left-sided numbness" following his examinations in 1998 and 1999. Lacy was strongly challenged at the trial by the appellant's counsel in respect of his conclusion of "total numbness" following a further examination in 2000. Having read the transcript of the cross-examination, it seems to me that there was a substantial basis for that challenge. In the circumstances, I am of the opinion that his Honour was obliged to give reasons for concluding this issue in favour of the respondent; and that it was insufficient to merely say: "I reject submissions made on behalf of the [appellant] that the right sided injury was a temporary condition".

97. In cases such as the present, this Court has the power to assess damages for itself, in the event that it concludes that the trial judge's assessment is erroneous[13]. It is a desirable power for the Court to have and to exercise with a view to saving unnecessary time and expense for the parties[14]. The Court has, however, expressed in the past its reluctance to exercise the power, in the absence of the consent of the parties, where there has been dispute at the trial as to the extent of the plaintiff's injuries and disabilities and where, as a consequence of disputed issues, the credibility of the plaintiff and the plaintiff's case on damages is in contention[15]. This, as I have been at pains to point out, was a trial where the appellant put in issue almost every aspect of the respondent's claim on damages. It is not, therefore, the type of case where the Court would normally, having set aside the award below, exercise its power to re-assess the damages, in preference to referring the issue of damages for re-trial. However counsel for each of the parties has requested us to re-assess the damages in the event that we conclude that the trial judge's estimate of the respondent's loss is erroneous, or that, otherwise, the judge's award should be set aside. In particular, senior counsel for the appellant has informed us that he is instructed to ask the Court to assess the damages for itself in the event that the appeal is allowed. In those circumstances, this Court should be "less chary" of exercising its power to re-assess the damages[16], particularly where those damages have not been assessed by a jury. The appellant agrees that the Court, in re-assessing must accept his Honour's view of the respondent's credibility and must also accept, insofar as loss of future earning capacity is concerned, that the offers made to the respondent by the Turkish entrepreneurs, to which I have referred, are to be treated as "genuine"[17]. It is, of course, apparent that it would be extremely costly and time consuming for the parties to re-assemble their witnesses for the purposes of a re-trial. Against that knowledge, and in the light of the request of the parties, and the concessions made by the appellant to which I have referred, the Court agreed that, in the event that the appeal was allowed, it would re-assess the damages for itself.

100. In re-assessing the damages, I refer to and incorporate for that purpose, the description of the relevant evidence to which I have already adverted, as well as the reasons which I have given for concluding that the trial judge's assessment of "pain and suffering damages" is manifestly excessive. (As to the latter, see paragraphs [16] to [19].) In my opinion an award of $150,000 is adequate to compensate the respondent for her "general damages" when the nature of her disability, and its past and on-going consequences to her, is placed alongside, and comparison made with, the range of damages for compensable disabilities for which compensation is, and has been, awarded in this State; and when due attention and care is paid, in a case like the present, to the potential for over compensation where the loss of enjoyment of life claimed is significantly intertwined with the claim for loss of earning capacity. In assessing the damages in the amount which I have, I accept that the respondent is a person who is not exaggerating her complaint, and that she suffers from total - or near total - numbness of the anterior two-thirds of her tongue; and the physical and functional impact which that injury has had upon her. Some of that functional impact appears to have resulted from what her counsel accepted had been a misconstruction of something which Dr. Aysamy was alleged to have said at the post-operative consultation on 28 April 1997. In my opinion that impact has not, relevantly, been caused by the appellant's negligence and should not contribute to the assessment of general damages.

103. The assessment of the respondent's loss of earning capacity must proceed on the basis that the respondent has a song writing and singing talent which Turkish entrepreneurs believe is marketable within the Turkish community if the respondent wishes to exercise it in Australia or overseas. Given that the talent exists and is potentially marketable, the difficulties in the way of measuring the financial loss to the respondent are not insubstantial:

* At the age of 33 the respondent is "untried" as a concert performer;

* The offers are conditional upon "performance", and are informal;

* The offers suggest that the earning potential for concert performances are greater overseas than in Australia. Broadly speaking the offers are in the vicinity of $5,000 per concert in Australia, although one from a "Kick-Boxing" promoter (towards which the respondent was not inclined) was for $A20,000 per concert for four concerts; overseas offers for concert performances were, at least in two cases, significantly higher per concert than those in Australia. Constant weekly performances in restaurants earn considerably less;

* The evidence leaves open the question of the extent to which the respondent has lost her capacity to earn income as a concert singer. The major offers to her have been attracted by the talents which she has demonstrated with her disabilities. If and when she says she can sing the number of songs the promoters require, then no doubt her capacity can be fulfilled;

* As it is at the moment the respondent clearly has an earning capacity as a song writer, capable but part-time singer, and talk-back radio host. She has a son of school-age, at school in Victoria.

Mr. Gillies' submission to this Court is that the evidence was of insufficient quality and certainty to enable the Court to conclude that the chances of the respondent earning an income as a concert singer beyond her current earning capacity were other than speculative; that the Court could not make an informed calculation of them and, thus should not award other than a modest sum to cover a risk that she might have been able to engage in more remunerative employment than that in which she is currently engaged[18]. Such an award, he contended, should not exceed $50,000 for the future - to which should be added the $20,000 which the judge had awarded for the past. To the contrary, Mr. Kaye submitted that the evidence was sufficiently specific to enable the Court to assess the degree of probability of the chance which had been lost to the respondent of earning income as a concert singer. He contended that it was open to the judge and this Court, to conclude that over a period of five years into the future the respondent had the capacity to earn at least $A100,000 nett per year; a total of $500,000. Mr. Kaye submitted that the Court should assess the chance of the respondent earning such income at 65%, resulting in the loss of $325,000 which the judge had assessed.

112. In Malec v. J.C. Hutton Pty. Ltd. (supra, at 642-3), Deane, Gaudron and McHugh, JJ. said that the approach of the Court assessing damages for events which allegedly might have occurred, but cannot now occur, (because of supervention of injury) is different from its approach to events which allegedly have occurred. In respect of the former events, their Honours said (643):-

"But in the case of an event which is alleged would, or would not, have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. 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 ... and adjusts its award of damages to reflect the degree of probability."

Brennan and Dawson, JJ. agreed with the "general thrust" of the above reasoning but sounded a note of caution. They regarded it as undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Their Honours said (at 640):-

"Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation. We should add that we would not favour the use of the term `probability' to describe the possibility of occurrence of a situation when the possibility is minimal."

118. Whilst respectfully I agree with the view of Brennan and Dawson,JJ. that damages founded upon hypothetical evaluations defy precise calculation, it seems to me that a court which is charged with the responsibility of assessing damages for what it accepts to be a measurable, and not speculative, lost chance of pursuing an income producing career must provide, at least, basic reasons for its assessment of damages for that lost chance. Conformably with that view, it is my opinion that Mr. Kaye is correct in his submission that the evidence in this case is sufficiently explicit to enable the Court to conclude that the respondent has lost a measurable - and more than speculative - chance of earning income in the future as a concert singer. Indeed, in my view, the evidence was such as to suggest that the chances of the respondent pursuing some type of professional singing career were, despite her inexperience, fairly significant. Indeed I would not disagree with Mr. Kaye that the "degree of probability" was in the order of 2/3:1/3. I do not agree, however, with his contention that the evidence supports the conclusion that the total potential loss to the respondent is as high as he suggests, or as the judge found. Having regard to the various "contingencies" to which I have referred - particularly the conditional nature and informality of the offers made, the variability of their terms, her current capacity to earn income and the possible potential to take up one or more of the offers in any event - I would not assess the potential loss to her as greater than $60,000 nett per annum over the five year period which the judge adopted; and which, as it seems to me, the parties were content to accept. Taking into account a discount for present payment, such a figure translates into a gross sum in excess of $120,000 per annum which is the equivalent of payment for more than 20 concerts per year in Australia which, on the evidence, would be the more likely venue for the respondent, having regard to her family commitments and current work schedule in which she would, in all probability, continue to engage. It is, thus, my view that a reasonable and appropriate assessment of the respondent's lost chance of earning income as a professional singer (beyond her current earning capacity) equates to 2/3 of $60,000 for each of the five years; a total of $200,000. In those circumstances, and bearing in mind the difficulties involved in assessing "lost chances", I am quite satisfied that the figure of $325,000 awarded by his Honour for the loss of earning capacity for a five year period into the future (a figure adopted by the respondent in this Court) is excessive. On its face, it takes no account of an earning capacity which the respondent still has, and appears to assume that, notwithstanding that up until the date of the award she would have been engaging in "modest" numbers of local performances, she was thereafter for the next five years going to be engaged as a local and international concert star earning over $200,000 gross per year. That approach, in my view, puts the "chances" far too high. Indeed, as it seems to me, it puts them well beyond what even senior counsel for the respondent at trial was prepared to put. True it is that he was asking the trial judge to award "$400,000 to $500,000" for the future loss, but that clearly, and in its context, was geared to what

counsel described as losses accruing over a "10 year future, more or less". Indeed the figure awarded by his Honour, and adopted in this Court by the respondent, falls not far short of the range suggested by counsel for a 10 year loss. Annualized the sum awarded by his Honour amounts to about $70,000 nett per year; in comparison with the $40,000 to $50,000 which was being claimed over a 10 year period. The figure at which I assess the respondent's lost chances are in keeping with those amounts.

122. Accordingly, I would assess the respondent's damages for future loss of earning capacity, in accordance with these reasons, as two-thirds of $300,000; that is $200,000. Her total damages will include the $20,000 for past loss of earnings which the judge awarded, and the amount of which the appellant did not strenuously dispute. They will also include the $1,500, agreed as special damages. The total damages which I would assess are, therefore, as follows:

131. The appeal against his Honour's award of damages should, in my view, be allowed; his Honour's award set aside; and in lieu thereof an award of $371,500.00 be substituted.

139. I agree for the reasons advanced by Winneke, P. that the appeal should be allowed and disposed of in the manner proposed by his Honour.

[1] See C.S.R. Readymix (Australia) Pty. Ltd. v. Payne [1998] 2 V.R. 505 at 508 and cases there cited.

[2] cf. Sharman v. Evans [1977] HCA 8; (1977) 138 C.L.R. 563 at 572 per Gibbs and Stephen, J.J.; Rosstown Holding Pty. Ltd. v. Mallinson [2000] VSCA 166; [2000] 2 V.R. 299 at 310 per Callaway, J.A.

[3] cf. Humphries v. Poljack [1992] VicRp 58; [1992] 2 V.R. 129 at 140, per Crockett and Southwell, J.J.; where their Honours were considering the assessment of an injury as "a serious injury".

[4] cf. Sharman v. Evans [1977] HCA 8; (1997) 138 C.L.R. 563 at 585 per Gibbs and Stephen, J.J.

[5] [1998] 1 V.R. 29.

[6] [2000] VSCA 125.

[7] Thomas v. Eyles (1998) 28 M.V.R. 240.

[8] Toomey v. Scolaris Concreting Constructions Pty. Ltd. [2001] VSCA 279. See also Luntz "Assessment of Damages for Personal Injury and Death" (4th Ed. 2002) at [3.1.8.], p.223.

[9] Malec v. J.C. Hutton Pty. Ltd. [1990] HCA 20; (1990) 169 C.L.R. 638 at 639-40, per Brennan and Dawson, JJ., at 642-3 per Deane, Gaudron and McHugh, JJ.; Mallett v. McMonagle [1970] A.C. 166 at 176 per Lord Diplock.

[10] cf. Mallett v. McMonagle, supra, at 174 per Lord Pearce.

[11] cf. Sellars v. Adelaide Petroleum N.L. [1994] HCA 4; (1994) 179 C.L.R. 332 at 355, 364-5.

[12] Victorian Stevedoring Pty. Ltd. v. Farlow [1963] VicRp 80; [1963] V.R. 594 at 599 per Sholl, J.

[13] Supreme Court Act 1986, s.14.

[14] Del Campo v Uniting Church [1996] VicRp 84; [1996] 2 V.R. 525 at 533.

[15] C.S.R. Readymix (Australia) Pty. Ltd. v. Payne, supra, at 516.

[16] cf. Backwell v. A.A.A. [1997] 1 V.R. 182 at 212; per Ormiston, J.A.

[17] The appellant's concession makes it unnecessary to say any more about the injury to the right lingual nerve.