New South Wales Supreme Court CITATION : Dirani v Fenton [2000] NSWSC 595 FILE NUMBER(S) : SC 11144/95 HEARING DATE(S) : 20/04/98 - 03/10/98 JUDGMENT DATE : 29 June 2000 PARTIES : Khalil Dirani Harold Fenton JUDGMENT OF : Dowd J at 1 COUNSEL : Mr A. Bartley SC Mr R. McIlwaine SC SOLICITORS : Carol & O'Dea Egan Maclean & Co CATCHWORDS : Assessment of damages - general damages - economic loss Sharman v Evans (1977) 138 CLR 563 Malec v J C Hutton Ltd (1990) 169 CLR 638 CASES CITED : Todorovic v Waller (1981) 150 CLR 563 Griffiths v Kerkemeyer (1977) 139 CLR 161 Norris v Blake (1997) 41 NSWLR 49 DECISION : Findings of fact made; leave granted to finalise orders IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DOWD J 29 June 2000 11144/95 - KHALIL DIRANI -v- HAROLD FENTON JUDGMENT 1 The plaintiff, Dr Khalil Dirani by way of Statement of Claim sought damages from the defendant for injury and loss suffered as a result of a shooting accident that occurred in February 1991 on the defendant's property. 2 Proceedings were instituted by the plaintiff on 16 September 1991 in the Tamworth District Court and on 27 February 1995 an order was made transferring the matter from the District Court to this Court. The hearing commenced on Monday 20 April 1998 on which day breach of duty was admitted by the defendant and an allegation of contributory negligence withdrawn. Damages remained in issue. 3 On 31 March 1998, the plaintiff by Notice of Motion had sought an order that a judge of this Court be appointed an examiner pursuant to Pt 27 r 1A SCR to examine a number of witnesses overseas. After some discussion between the parties the number of witnesses that evidence be taken from was reduced to two witnesses in Marseilles, France, Professors Martini and Santoni and three witnesses in Beirut, Lebanon, Drs Cherfan and Yachoui and Mr Haddad. 4 Orders were then made that subject to the concurrence of the Chief Justice, a Judge of this Court be appointed Examiner pursuant to Pt 27 r 1A SCR to examine in Paris Drs Santoni, Martini, Cherfan, Yachoui, as well as Mr Haddad, Dr Ghassan Chit Dirani, Mrs Souad Freiji and Ms Randa Dirani in Beirut. 5 The order however, did not receive that concurrence and on 6 August 1998 I made an order directing that an examiner be appointed to take the evidence overseas in lieu of a Judge. I further ordered the examiner to make a special report in relation to the examination before him with regard to the absence of any persons, or the conduct of any person at that examination, and that in particular the examiner record a witness' movements or demeanour at any particular time, or the witness' activities in reading documents or pausing before answering a question. I further directed that the examiner should not express an opinion about the credibility of a witness. 6 The evidence of those overseas witnesses I have referred to above were taken from 28 September 1998 to 3 October 1998. In March 1999 the evidence, both in video tape was played and a transcript thereof was admitted without objection and the hearing concluded. Judgment was reserved. The Facts 7 On 9 February 1991 the plaintiff attended the property owned by the defendant known as "Wattleglen", at the invitation of the defendant, to fire rifles at targets. Under the supervision of the defendant, the plaintiff was handed a rifle. The defendant provided basic instructions to the plaintiff on how to hold, cock aim and fire the rifle. The plaintiff aimed the rifle and pulled the trigger but the rifle failed to discharge. When the plaintiff opened the rifle he discovered an empty cartridge which he showed to the defendant. The defendant then took the rifle from the plaintiff and let the empty cartridge go. The plaintiff took the rifle from the defendant and aimed the rifle by placing the telescopic sight to his eye. When the plaintiff pulled the trigger of the rifle the rifle exploded. As a result of the explosion the plaintiff suffered severe injury to his right eye and the right side of his face, as detailed in the plaintiff's statement under Pt 33 r 8A SCR. The Injuries 8 When the rifle exploded the plaintiff commenced experiencing a burning sensation on the right side of his face. He could not open his eyes and felt lacerations and his face was covered in blood. He was not able to open either eye. The plaintiff was taken to Moree Hospital by Mr Fowler, his friend who attended the defendant's farm to shoot, and was from there transferred to Tamworth Base Hospital where an operation was performed on his right eye by a surgeon, Dr Barnett. 9 The plaintiff remained at Tamworth Hospital for some five days during which time he underwent a number of procedures to remove parts of the rifle and bullet cartridge from his face and his right eye. 10 When the plaintiff was discharged from Tamworth Hospital he was unable to use his right eye. He returned home to Moree where he was cared for by his sister who would change the dressing on his right eye. During this time the plaintiff was unable to see anything out of his right eye and became severely distressed and afraid he would lose that eye. He experienced uncertainty about his future and terror on the effect on his life. 11 On 21 March 1991 the plaintiff travelled to Sydney with his sister for a consultation with the late Professor Hollows at the Prince of Wales Hospital. Professor Hollows was of the opinion that the plaintiff required an operation on the vitreous and retina. The plaintiff was referred to a Dr Playfair who performed a vitrectomy at the Sydney Eye Hospital removing the vitreous haemorrhage and placed an encircling band around his eye. The first time the plaintiff was able to see again was when the bandages were removed from his eye. His vision was however very blurred and distorted. The plaintiff returned to Moree where he was cared for by his sister. 12 In July 1991 after applying for numerous positions as a dentist, the plaintiff obtained employment in Killarney Vale on the central coast with a Dr Balean with whom he worked for five days a week for six months. The plaintiff moved to Bateau bay with his sister and his mother who had recently come out from Beirut on sponsorship. 13 During the time the plaintiff worked for Dr Balean he continued to experience problems with the vision in his right eye obliging him to work at a slower rate. His vision in his right eye was distorted. He would sometimes experience extreme eye pains and suffered from headaches much of the time. The plaintiff's eye problems caused his employment to be terminated with Dr Balean. In March 1992, feeling discouraged the plaintiff returned to Beirut with his mother. 14 In September 1992, some five months after the plaintiff had returned to Beirut he noticed suddenly the top half of the visual field of his right eye was blind and that when he looked with his eye the top half was black. The plaintiff immediately consulted Drs Bakri and Sinno who were eminent eye surgeons. An examination of the plaintiff's right eye revealed that his retina had become severely detached and it was recommended he undergo surgery urgently. The plaintiff felt extreme depression and felt his life was at an end. 15 On being told of the detachment the plaintiff contacted Dr Playfair as well as a Dr Jalkh at Harvard in the United States who recommended a surgeon, Dr Baron in Nantes, France to do the operation. 16 On 21 September 1992 the plaintiff underwent surgery at the St Augustin Clinic in Nantes, France. Though the surgery was deemed a success in reattaching the retina, after the surgery the plaintiff's vision did not improve. His vision was much more blurred and he experienced double vision for the first time. The plaintiff remained in Nantes for a month where he underwent laser treatment. 17 In October 1992 the plaintiff returned to Beirut where he came the care of Drs Jalkh, Bakri and Cherfan, all of whom were specialist opthalmologists and in April 1993 the plaintiff underwent a minor operation which was performed by Dr Bakri to remove a conjunctival cyst in his right eye. 18 In October 1994 whilst the plaintiff was back in Australia and still experiencing double vision he consulted the opinion of Dr Michael Delaney, Ophthalmic Surgeon at St. Vincent's Hospital. Dr Delaney was of the view that though the plaintiff may require cataract surgery in the future the surgery may not significantly improve his double vision or glare intolerance. Dr Delaney was of the view that the plaintiff would be able to carry out most forms of work but would have difficulty in very brightly lit conditions and difficulty in carrying out fine detailed work such as carrying out dental surgery. Dr Delaney assessed the plaintiff's loss of vision in his right eye at 75%. 19 In 1995, the plaintiff was again examined by Dr Playfair. In his report of 21 December 1995 Dr Playfair opined that the problems the plaintiff had experienced in his right eye were genuine and permanent. Dr Playfair assessed the plaintiff's visual incapacity in his right eye as being over 90%. 20 That same year in December 1995 the plaintiff returned to Dr Delaney for further consultation after experiencing a deterioration in his sight and in particular increased problems with double vision and glare intolerance. In his report of 18 December 1995 Dr Delaney opined that prognosis for the restoration of the plaintiff's vision is poor and that any treatment could only hope to produce a mild to moderate improvement in the plaintiff's vision but that there was still a risk of significant ongoing problems. The plaintiff's vision in his right eye was assessed at an 95% permanent loss and that even if the plaintiff was to undergo further treatment such a cataract surgery he would still be left with a 90% loss of vision in his right eye. There existed risk of sympathetic damage to the other eye from an operation. 21 In 1996 the plaintiff contacted Dr Baron in Nantes for further opinion on his double vision. Dr Baron recommended the plaintiff seek further opinion from Dr Gravier, also from Nantes, a specialist in the treatment of double vision. Dr Gravier recommended the plaintiff undergo further surgery but on consulting the opinion of Dr Playfair, the plaintiff was advised that surgery would not be a successful option for him in that it may aggravate his double vision further. 22 In March 1998 Drs Playfair and Delaney again examined the plaintiff. Noting that the plaintiff will continue to suffer from double vision glare and reduced third dimensional vision, Dr Playfair opined that any further surgery to correct these impairments would not benefit the plaintiff. Dr Delaney opined that the plaintiff's situation was stable and unlikely to significantly change unless he had further treatment. Dr Delaney agreed with Dr Playfair's opinion that no further treatment should be carried out. The plaintiff has also contacted several specialists in Beirut none of whom offered him any option for treatment to his eye. 23 Dr Cherfan, consultant ophthalmologist and head of the vitro retinal unit at the Risk Hospital in Beirut, Lebanon, who has treated the patient since June 1994 opined that the plaintiff will certainly develop a further deterioration of vision which will cause him to require surgery to correct his cataract and double vision. Dr Cherfan's evidence was also that though such surgery may be required, it is indeed very risky and may lead to sympathetic opthalmia. 24 The plaintiff continues to experience pain on a daily basis in the area of his eye but is able to cope with it. Apart from the glare and diplopia he sometimes gets tiny objects in his eye that have to be very carefully removed. He has been told by various doctors and believes that there is a possibility he may develop a condition known as neuralgic opthalmia in his good eye. 25 In addition to the specific conditions to which I will refer shortly, the plaintiff has suffered considerable emotional trauma and pain in the initial period and after the injury to his eye and during a period when he was seriously concerned whether he would loose the sight in his eye. He continues to have some concern about the future of his right eye and the relatively small risk of sympathetic ophthalmia but is something which must inevitably play on his mind. He has undergone several operations and a long period of treatment and has been deprived for a significant part of his life of the opportunity to practice in his chosen profession. 26 Towards the end of his life he has a very high risk of cataract with a considerably reduced opportunity to operate because of the consequential problems which may result from the operation. 27 Double vision causes distress and eye pain is caused by bright glaring light. The plaintiff is very sensitive to pain and has to take considerable care of his eye. There is also a possibility that the retina may detach as there is still scar tissue present. The plaintiff also will have difficulty driving but particularly at night because of glare of oncoming vehicles. This would constitute a danger. The plaintiff's evidence is that he endeavoured to use a computer but found it difficult because of the diplopia. 28 The plaintiff was examined by a specialist physician concerning an ulcerative colitis condition in 1994. The plaintiff had had some investigations in Lebanon in February 1995 including a colonoscopy. The condition was at the time of the colonoscopy quite active. It was treated by a medication called Masalazine and also takes an anti-ulcer drug known as Zantac. This causes him to have soft very frequent stools and affects his capacity to carry out his profession as he needs to leave a patient upon frequent occasions. 29 In cross-examination the plaintiff admitted to having the passing of blood when he was in Adelaide some time prior to the operation, although he asserts that this was not the same condition. 30 When examined again by a Dr Bye on 24 march 1998 shortly before the commencement of the hearing the condition did not then prevent working and the colitis was then in remission and appeared to have stabilised. Dr Bye gave a good prognosis for the condition but could not say that it was caused by the injury, considering however that the condition may be exacerbated by emotional stress. 31 in 1983 the plaintiff commenced to suffer from severe lock jaw which required him to physically relieve the condition. This caused serious problems in eating and chewing other than very small food and the condition which was a problem of temporal-mandibular articulation required surgical intervention. Dr Claude Levy a maxillo-facial surgeon carried out surgery on the temporal-mandibular joint at a clinic in Paris which relieved and improved the plaintiff's jaw condition but he still has ongoing pain and difficulty in eating. 32 The plaintiff tendered in evidence the report of a Consultant Psychiatrist Dr John Roberts whose report examines the plaintiff's psychological condition. Dr Roberts discloses that the plaintiff is a very unhappy man concerned about the restriction on his life caused by the loss of depth of vision and his inability to work in his profession. He told, in his report of a very anxious and depressed person. 33 Dr Robert's report of 19 December 1995 states as follows: "Although Dr Dirani's response to his injury falls short of a psychiatrist injury, disease or disability the very substantial alteration in quality of life has been described while Dr Dirani's status clearly indicates that he doesn't consider he has any psychiatric illness disease or disability nor that he requires psychiatric treatment is noted, but that does not detract from the very substantial degree of upheaval pain and suffering that has resulted from the injury being the subject of this matter." 34 Dr Roberts also comments that the colitis condition is unlikely not psychological caused probably vulnerable to aggravation by heightened anxiety levels and a condition falling short of psychopathology could aggravate an underlying organic disease. The Plaintiff's History 35 The plaintiff who is now some 45 years old was born in Beirut, Lebanon. His father, now deceased, worked as a senior officer in National Internal Security, and his mother is a housewife who currently resides in Beirut, Lebanon. The plaintiff's younger brother who is a dentist who works in Beirut as well as a younger sister. 36 The plaintiff is a single man without any dependants. He had planned in 1992 to get married in Lebanon but that never eventuated because of the accident. 37 The plaintiff attended schooling in Beirut to university entrance age at the Notre Dame de Jamhour School where he was taught to speak both French and English, he having been fluent in Arabic. By the time he had finished school the plaintiff had decided to pursue a career as a dentist. He attended the University of Montpellier for the first two years of his dentistry degree completing a Doctorate of Dental Surgery Diploma at the University of Marseilles, France in 1992. 38 Whilst studying for his degree at Marseilles and working part-time on a voluntary basis as a dentist in a public hospital he became interested in an area of dentistry known as prosthodontics and was appointed a tutor in prosthodontics by the University. Wishing to continue his interest in prosthodontics the plaintiff applied to do a postgraduate degree, a Master of Dental Science at the University of Sydney. Funded by his parents the plaintiff migrated to Australia and commenced that degree in 1983. 39 During 1983 the plaintiff experienced some difficulties studying due to his concerns about the political situation in Beirut and the financial situation of his family. He failed to complete the first year of the degree and in 1984 recommenced first year again. In August 1984 in addition to the suffering from depression the plaintiff developed glandular fever and had to defer his studies for eighteen months. During this time he consulted psychiatrists. 40 During the following two years the plaintiff commenced working in various jobs such as cleaning and gardening, as well as tutoring in French. In June 1986 the plaintiff became an Australian citizen. 41 In early 1987 the plaintiff returned to Beirut to be with his family who were experiencing financial difficulties. The plaintiff stayed in Beirut with his family until the end of 1987 and returned to Australia to complete his degree. Whilst in Beirut the plaintiff did not work but registered with the Lebanese Dental Board but did not work as a dentist. When the plaintiff returned to Sydney he made some inquiries about obtaining further qualifications to practice as an ordinary dentist. 42 The plaintiff enrolled at the University of Adelaide and completed the final two years of his degree, graduating at the beginning of 1990. The degree was a standard dental degree which would allow the plaintiff to work as a dentist in Australia. On 13 February 1990 the plaintiff became registered as a dentist in South Australia. 43 After graduation the plaintiff immediately sought work as a dental surgeon and commencing employment at a salary of $400.00 net per week plus rental allowance of $64.00 per week for the South Australian Dental Service in Whyalla. The plaintiff worked for the service for some five months, ceasing that employment to take up another offer in a small dental practice at Mount Isa, Queensland. 44 The plaintiff who was employed by a Dr Lynn at Mount Isa earned approximately $800.00 - $1,000.00 nett per week plus $100.00 allowance for accommodation. Feeling particularly isolated and uninspired by the work he was doing the plaintiff tendered his resignation after one month. Subsequently he obtained employment with a Dr Kelly in Moree as a dental surgeon earning approximately $800.00 - $1,000.00 net per week. At the date of the accident the plaintiff was still in the employ of Dr Kelly. 45 After the accident occurred the plaintiff was unable to work. His employment with Dr Kelly was consequently terminated as of 26 April 1991. 46 Whilst in Lebanon, the plaintiff worked from 4 May 1992 to 13 June 1992 for one day per week and every second Saturday as a dental surgeon in his brothers dental practice. During that period, the plaintiff earned the equivalent of $ AUS 430.95. The plaintiff then commenced employment five days per week for Dr Berty at the Berty Dental Polyclinic as a general dental surgeon and earned the equivalent of $ AUS 7,093.08. 47 The plaintiff recommenced employment with his brother in 1992 working on Saturdays when emergency patients were available requiring pain relief only. The plaintiff continued working for his brother until December 1993. During that period of employment (November 1992 and December 1993), the plaintiff earned the equivalent of $AUS 666.92 net. 48 The plaintiff then worked on a full time basis for a friend of his that owned a garment factory for some four months and earned the equivalent of $AUS 5,221.00. The plaintiff who had no experience in the garment trade, nor in running a business was responsible for supervising employees, ordering materials and ensuring appropriate printing of cloth. The business collapsed through no particular fault of the plaintiff however and the plaintiff was forced to seek work elsewhere. 49 In January 1994 the plaintiff commenced employment supervising the electrical work on a building for Khalil Haddad, a school friend of the plaintiff who had gone into the construction industry. The plaintiff also worked as a casual foreman for Mr Haddad. The plaintiff remained in their employ until October 1994, earning the equivalent of $AUS 6,714.65, and from January 1995 to July 1995 and earned some further $AUS 3,097.05. 50 Since 31 July 1995 the plaintiff has been unemployed. He has not looked for any work and holds the belief that because of his injuries he would have little chance against other applicants. He has continued to reside in Beirut with his family who support him and does not contribute financially in any way to the household. The plaintiff has not planned to return to Australia to work. 51 In the latter part of 1994 the plaintiff applied to several universities to undertake further study in dentistry but was not accepted in any course. In 1997 he made a further application and was accepted to study orthodontics at the University of Marmara in Instanbul, Turkey. On being accepted to study the plaintiff wrote to the NSW Dental Board to enquire whether the degree would qualify him to practise in Australia. The evidence was that the opportunity at Marmara University would not have been a qualification of suitable standing in Australia. 52 The plaintiff's case has been that prosthodontics requires the same optical skills as dentistry generally. It is difficult for the court to see why the plaintiff wanted to attempt further qualifications in dentistry at a time when the plaintiff says his injuries would have prevented him carrying on practice. 53 In cross-examination, however, the plaintiff demonstrated that although he had written to the various universities that he had not found that he was able emotionally to follow through with the studies. Credibility of the Plaintiff 54 The plaintiff exhibited considerable anxiety in the giving of evidence and had some difficulty adjusting to the process but it shortly became clear that the plaintiff despite numerous warnings given by me was determined to argue his case in the giving of his evidence. 55 He was reluctant to make fairly obvious admissions and on a number of occasions finally admitted to facts only when documents were actually placed in front of him. He asserted that in terms of work he alleged he had performed for dentists in Lebanon that he had lied about such an assertion. It is difficult to accept that in a C.V. for employment purposes why he would need to invent the names of dentists for which he had in fact worked. The overall impression of the plaintiff was that he was endeavouring to improve his case, through his evidence. 56 The difficulty about the evidence of the plaintiff is that so many of the major factors in the case are extremely subjective. Factors such as the capacity of the brain to adjust to the way in which a weaker eye reacts to a stronger, the way in which a person in dentistry can cover one eye or lose it and work with one eye only are very individual matters. There are obviously in our society in all trades and professions, including such fine work as dentistry, people who can operate and carry on their lives with one eye. Much of the plaintiff's evidence is in fact not personally corroborated and it makes it very difficult to assess the evidence particularly as no evidence was adduced by the defendant, except in cross-examination of the plaintiff. 57 Clearly in the period up to the retinal reattachment the plaintiff was able to work as a dentist and did so afterwards. There is some dispute about the extent of the work that he did but there is evidence that other dentists are capable of operating. The plaintiff was not always lacking in frankness. He did quite clearly concede that a lot of problems with furthering his education and his inability to seek employment was partly a matter of his attitude, not so much an inability to in fact carry out his employment put to him in cross-examination. Calculation of Damages General Damages 58 I consider that although in limited circumstances certain dental work may be carried out by the plaintiff, that I nonetheless accept the loss of the substantial use of his right eye and his sensitivity to the inevitable glare under which a dentist operates means the plaintiff has clearly lost the capacity to continue as a dentist. His brother's evidence, which I accept notwithstanding that his evidence was somewhat partisan to the plaintiff was that the work done by him was of a limited nature only when he worked with him as a dentist in Lebanon. The plaintiff has lost therefore the career for which he had worked towards but has also lost the amenity that comes with the use of two properly focusing operating eyes. 59 The plaintiff is severely limited in driving, particularly at night, he has facial injuries and difficulties in eating which affect his enjoyment of life and he has lost quite clearly on the evidence his self esteem. 60 Applying the principles enunciated in Sharman v Evans 138 CLR 563. The plaintiff is limited in his capacity to have further operations for what is an extremely vulnerable eye with the fear of loss of his sight completely if the sympathetic condition occurs in his right eye. Notwithstanding that he has an otherwise fit body than the area affected by the gunshot wound I consider that the past pain, operations and distress and the damage caused to him in the future and likely problems arising from the damage to the eye is very substantial. The plaintiff's counsel suggests that the plaintiff should be awarded $200,000.00 for this loss whereas the counsel for the defendant submits that the proper figure is in the range of $150,000.00. 61 In the circumstances of the plaintiff I assess and allow general damages at $180,000.00 which should be apportioned as to one half for past general damages. Interest should be calculated on past general damages at 2% from the date of the accident to date of final judgment. Economic Loss 62 The High Court set out the principles for the assessment of economic loss in a case such as this in the decision of Malec v J C Hutton Ltd (1990) 169 CLR 638 where the majority stated at p.463: "…in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it 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 …the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability." 63 The two minority judges whilst agreeing substantially with the majority expressed caution against assessing damages on the footing of an evaluation expressed as a percentage as damages founded on hypothetical evaluations defy precise calculation. 64 The plaintiff should be awarded such sum as will nearly as possible put him in the same position as if he did not sustain the injury but it must be done in a once and forever assessment and the plaintiff must prove the injury or loss for which he seeks damages (Todorovic v Waller (1981) 150 CLR 402 at 412). 65 The relevant head of damage is the plaintiff's loss of earning capacity, not his past or future lost earnings. Malec's case was considered by Clarke JA with whom the other judges agreed in Norris v Blake (1997) 41 NSWLR 49 where he held at p. 66 as follows: "Malec was a decision of the High Court which expressed in clear terms the approach which a court should take in assessing damages in respect of hypothetical future events. However, the case did not, in my opinion, change the law, or necessitate a change in the customary way the courts in Australia approach the assessment of the impairment of earning capacity, past and future. That the courts have always taken the uncertain nature of the future into account is clear from the well-established allowance for vicissitudes which, of course, represents an adjustment to take account of the imponderables or chances that lie ahead." "Not only is Malec consistent with that approach, but in the majority judgment three cases are cited in which courts in both England and Australia expressed the principles in similar terms. For instance, in McIntosh v Williams [1979] 2 NSWLR 543, Moffit P and Samuels JA said (at 550): "Where an evaluation of a loss has to be made and the extent of the loss depends upon an uncertain event, which has not occurred by the time the evaluation is made, such evaluation must be made by reference to the chance of the event occurring, and not by reference to whether or not the occurrence was or is probable: Davies v Taylor [1974] AC 207 at 212, 213." Malec is important for it is a statement by the High Court affirming that the principle was correctly expressed by their Honours. It did not however, change the way in which damages are assessed for future economic loss. On the other hand, it did emphasise the need to take account of the various possibilities which might otherwise have affected earning capacity. That this is what Malec stands for is made particularly clear by the High Court in Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 498. The High Court there reiterated the proposition that where, for instance, promotion in the future may have occurred, all that had to be established was a real possibility of promotion. The court was then bound to take that possibility into account. The majority (at 499) was further of the opinion that "damages founded on hypothetical evaluations defy precise calculation" (per Brennan J and Dawson J in Malec (at 640)), and that the discount to be allowed for the possibility that the applicant's previous injury might have resulted in her impaired earning capacity was at best "a matter of impression." 66 His Honour further said at p. 69: "That is not to say that where a scientific method is available it should not be adopted. Indeed, in my opinion, if there is evidence in a case capable of demonstrating that a particular scientific approach is likely to reach a more accurate assessment than an intuitive judicial approach then, provided full weight is given to the uncertain nature of the future, there is no reason for failing to adopt that method." 67 Apposite to the present proceedings are the comments of Clarke JA at p. 73: "In assessing the value of that lost chance there must be brought into account his intention to attempt such a career and the rewards that such a career had produced for other actors. Against those factors must be weighed the strong possibility that he would not succeed to the highest level of earning or even to a bracket beyond what might be described as successful, or at all. To my mind it is impossible to quantify the loss of this chance by using percentages and applying them to arbitrary levels of earning spread over twenty years or more. Indeed, even if the chance of becoming highly successful was X it does not follow that there is the same chance of maintaining that level for twenty years. With respect, the result in this case demonstrates the fallacy of the approach in terms of its unreasonableness. In terms of probability, it is more likely than not that the plaintiff would achieve moderate success. Yet the damages are calculated by reference to an annual amount which far exceeds what this success would produce." and further at p. 75: "It follows from what I have said that the Court is concerned to determine what, on the evidence, was the most probable course that the respondent's career would have taken, what amount should be awarded to compensate him for the losses flowing from his inability to follow that course, and finally to make adjustments to the sum resulting from that determination to take account of the contingencies which in this case include the loss of the chance to do even better, to become, as it were, a successful star in the United States, even a superstar." 68 The plaintiff submitted that had he not been injured he would have earned no less than the sum of at least $1,000.00 net per week from the time he completed his degree in dental surgery. The plaintiff further alleges that his income as a dental surgeon was anticipated to increase significantly over the years since graduation and more significantly if he was to have qualified as an orthodontist. I agree with this submission. 69 The plaintiff submits on the probabilities of his own career that he would have stayed in Moree for the whole of 1991; he would have gone to Lebanon for a few months in 1992; when he returned from Lebanon he would have taken out a loan to set up a practice as a dentist in Sydney; that he would have completed his masters degree either part-time or, if necessary, full time by renting out his practice and thereafter he would have practised as a specialist in prosthodontics. 70 It is submitted by the plaintiff that the range of earnings for dentists commences from approximately $1,000.00 per week for a dentist employed in a practice up to $3,000.00 per week as a specialist prosthodontist in Sydney in his or her own practice. 71 I do not doubt that the plaintiff would have become a successful dentist were it not for the accident. His evidence is that he intended to specialise in the area of prosthodontics in Sydney, Australia and was prepared to undertake a Masters degree to that end. His evidence was that he thought that he could be very useful to the Lebanese community. 72 He is clearly a capable man, as evidenced by the reports which have been tendered before me. Dr Kafalais who taught the plaintiff whilst he was studying at the University of Sydney described him as rating quite well compared to other foreign students and being a keen, conscientious and able student. Dr Kafalais, in his evidence described the plaintiff was being very meticulous and skilled in the area of prosthodontics. 73 Dr Santoni, the plaintiff's teacher in his fourth and fifth years of study at the University of Marseilles described the plaintiff at p. 6 of the transcript as having made fabulous progress at the end of his fifth year. Impressed by the plaintiff's progress Dr Santoni even went so far as to personally congratulate the plaintiff. Dr Santoni's evidence was that the plaintiff was an above average student. 74 Dr Roger Antoniazzi, previous Director of the Primary Care and Radiology Unit of the Adelaide Dental Hospital, who tutored the plaintiff whilst at Adelaide University described the plaintiff, as follows: "Khalil impresses me greatly in his perfectionist and professional attitude to dental practice. He has an incredible will to succeed coupled with a subtle sense of humour. He has strong ties to his family unit, and is devoted to working hard and improving their standard of living. I remember his clinical skills being of a very high standard, and his professional attitude reassuring in the knowledge that he would be a 'life long student', continually striving for self improvement. "Dr Dirani would be a strong foundation for any dental practice, and I strongly recommend him to any further dental practitioner or hospital administrator considering his services. " 75 I accept the evidence of his teachers. 76 I do not consider however that the evidence of Dr Viskovich provides a useful comparable earning for a person in general practice in a country town. Dr Viskovich appears to be a very successful dentist with an obvious high reputation but it is difficult to extrapolate from him to the plaintiff. The plaintiff who is clearly an emotional person has had, prior to the injury sustained by him a series of breaks in his academic progress. 77 I appreciate that it is difficult for someone coming from a war torn country such as Lebanon and that problems such as glandular fever can seriously affect working and studying capacity for a long time but nonetheless the early comments as evidenced by his university lecturers that he was a good and promising student with an interest in prosthodontics did not show through with a rapid development of his career. 78 I think there was a serious problem in the plaintiff's application to his career even prior to the injuries he sustained. 79 Many students have ambitions to study specialities but do not realise those ambitions. Prosthodontics is a career path which the plaintiff may have achieved with the consequent high income but the vagaries of professional life particularly for someone operating in Australia as other than his country of origin has many variable factors in assessing a future career path in addition to those of a normal dental student. 80 I accept that a proper income estimate for someone in private practice taking into account the normal tax reduction regime of a successful professional dentist or prosthodontist relying on the evidence of the plaintiff's brother and the evidence from Richard Hart and Dr Viskovich that the plaintiff, if he had realised his ambition was likely to achieve an income of approximately $3,000.00 per week as a prosthodontist and that this would be achieved after paying taxes of about 30%. I consider however that the prospect of him achieving that for the reasons that I have enunciated in relation to his study and his uninterrupted career is a probability of one third in terms of the principles in Malec's case, that he would achieve the status and career of a successful prosthodontist, and that that would be by February 2000. 81 It is submitted that the plaintiff would have stayed in Moree in 1991 and taken some time off in 1992 and taken out a loan to set up a practice in Sydney in 1992. I accept these submissions as the likely course. 82 The submission that he would complete his Masters degree either part time or if necessary full time renting out his practice was a likely probability but that he would have endeavoured to practice as a specialist in prosthodontics is a more difficult proposition as set out above. 83 But for the accident I accept on the evidence adduced by the plaintiff that he was likely to come and settle in Australia and make it his permanent home. As a basis for calculation I find that a self employed professional will incur tax of approximately 30 per cent on the usual restructuring of practice and the establishment of a company and trust structure. 84 I consider that in terms of past economic loss the plaintiff's income would have progressed. I have, on the estimate I can make on the evidence before me allowed a progression from date of injury at net $1,000.00 per week as I have indicated to $1,500.00 on 9 February 1996 and there should therefore for that four year period be a progression in net income in each year, of $1,000.00 per year to an income of $1,900.00 per year to February 2000 and would be $2,000.00 net per week by 9 February 2001. Ulcerative Colitis 85 On the evidence before me I am unable to find that the ulcerative colitis is a consequence of the injury sustained when the rifle exploded and in any event it is not generative of any loss of earning capacity. Vicissitudes 86 I can see no basis for departing from the normal vicissitudes of 15 per cent. There were and are various contingencies in the career path of the plaintiff but I consider that generally he would have continued in practice as a dentist. The finding of vicissitudes applies to the loss of income capacity and for the plaintiff's residual earning income capacity. 87 I find that the plaintiff is likely to retire on his 65th birthday. I find that he now has a 34 year life expectancy. Past Out-of-Pocket Expenses 88 I allow the plaintiff for past out-of-pocket expenses $24,044.75 and grant leave to adduce any further evidence of out-of-pocket expenses since the hearing. Griffiths v Kirkemeyer 89 The parties have agreed on a rate of $12.00 per hour for a closed period of allowance for Griffith v Kirkemeyer. This has been calculated on at $18,900.00 which I allow. Residual Earning Capacity 90 The plaintiff clearly has not handled the loss of his career as a dentist well. The plaintiff has been completely amotivational about working in other employment or in seeking to obtain other employment. His family is a high profile family with prestige and influence in Lebanon. Obviously having a professional career is a matter of some importance to the plaintiff. The plaintiff clearly does not want to have any employment other than as a dentist and is not prepared to accept the reality that dentistry is just not available to him. 91 The plaintiff's evidence in cross-examination is that he has made no attempt to obtain employment other than those specifically referred to in his history and he has not worked for some time. The plaintiff's own witnesses have given evidence as to employment opportunities that are available to him. Obviously medical product representatives often use qualified people to sell products and dentistry is no exception to that. The plaintiff has skills in French, English and Arabic languages and has tertiary education. It would not be difficult for the plaintiff to obtain further qualifications in teaching or interpreting or for that matter a whole range of clerical positions. I do not consider that it is appropriate for the plaintiff to just decline to participate when he has a duty to mitigate his damages. 92 It is the duty of the defendant to show a failure to mitigate. An examination of the answers adduced in cross-examination have clearly discharged this onus. In any event it is the duty of the plaintiff to show loss of earning capacity. His failure to work is not evidence of that incapacity. 93 On the basis of the best estimate that I can make on the evidence before me I consider that the plaintiff's tertiary education gives him ample opportunity to seek employment even covering one eye or making adjustments to living with the eye uncovered. The average weekly earnings of male earnings are $450.00. I consider that the plaintiff has since January 1995 had a capacity to earn a net income of $700.00 per week. I consider that appropriate as a residual earning capacity. Future driving 94 The evidence is that if the plaintiff's right eye was covered that he could in fact drive like other monocular persons and therefore I do not consider that the plaintiff has made out a case for generally having the assistance of a driver. Driving however will not be entirely straightforward and therefore it may be appropriate that on some occasions the plaintiff go by taxi or obtain other assistance. I consider from the time of the plaintiff's employment on 29 July 1991 with Dr Balean that he should be entitled to an allowance of taxis of a night time or other assistance of $40.00 per week. Future care for sympathetic ophthalmia or other contingencies 95 The plaintiff has sought a claim for the potential onset of sympathetic ophthalmia and the treatment that is involved. These statistics of the onset of this condition are extremely small, there being estimates of between one in ten thousand and one in fourteen thousand. I do not consider that this is a likely probability that should be taken into account and therefore do not consider that a case has been made out for future care. 96 The history of the plaintiff's eye problem since the injury however show that there is a potential for further problems arising that may involve the need for an operation. I consider that the best way that can be covered is to allow a fund to cover future operations and treatment. I therefore allow the sum of $25,000.00 as a lump sum for future medical contingencies. Future Out-of-Pocket Expenses 97 The plaintiff claims the sum of $40.00 per week for the balance of his life expectancy. I was not advised whether the parties had agreed on this amount nor was I provided with assistance as to the calculation of this. If the parties cannot agree as to a proper figure I grant leave for further submissions to be made in respect of future out-of-pocket expenses. Summary 98 In the light of the findings I have made I grant leave to the parties to carry out and submit draft orders in respect of those findings. 99 I therefore: 1. Grant the parties leave to submit further calculations based on those findings. 2. Grant leave to the parties to make further submissions in respect of future out-of-pocket expenses. 3. Grant leave to the parties to make further submissions in respect of any matter arising out of the findings that I have made. 4. Reserve the question of costs. ********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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