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

Royal Dental Hospital of Melbourne v Akbulut [2002] VSCA 88 - VSCA 2002 case summary — Zoe

[11]

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.

[15]

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".

[44]

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.

[47]

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.

[60]

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

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Court

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Before

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Judgment (81 paragraphs)

Parties