GIUSTI v TAYLOR [1998] NSWCA 99

GIUSTI v TAYLOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER JA and FITZGERALD AJA

8 September 1998, 2 October 1998

[1998] NSWCA 99

NEGLIGENCE — damages — economic loss — costs — offer of compromise made

The appellant had brought proceedings to recover damages for injuries she claimed to have received when being treated by the respondent dentist for a grinding and clicking jaw and headaches.

In March 1993 the respondent had fitted a device known as a Clark Twin or Bayer block to relieve pressure on the appellant's temporomandibular joints. The appellant said that this form of treatment caused her to suffer an increase in pain. The respondent gave evidence that he had noted improvement in her condition and persisted with the treatment whilst he felt there was improvement.

On or about 12 October 1993 the use of the device was discontinued and was replaced by a device called a Bionator. The respondent had written to a to a specialist in March 1994 and had continued to treat the appellant until the end of August 1994.

The trial Judge held that the defendant had been negligent in not seeking advice from a specialist and persisting with treatment when it appeared to have doubtful efficacy. His Honour awarded general damages of $10,000 and $380 out of pocket expenses for the last 6 months of the appellant's treatment but did not make an award of interest. The trial Judge also ordered the appellant to pay the respondent's costs from 27 October 1996, at which time the respondent had made an offer of compromise in the sum of $12,000, to the time of judgment.

The respondent conceded that the trial Judge should have made an award of interest of $654. Therefore, the appellant appealed against the trial Judge's decision on the following bases: (i) the trial judge erred in not making an award in favour of the appellant for economic loss; (ii) that the award of damages was manifestly inadequate on the basis that the trial Judge's finding of the period of negligence was too short; and (iii) the trial Judge erred in not exercising his discretion under Pt39A r25 of the District Court Rules to order that the appellant be awarded costs from 28 October onwards despite the offer of compromise due to the special nature of the proceedings.