ACT … Dental

See Robinson v Ng 7/11/14 [2014] ACTSC 227 where in 2009 when P was about 50, “[d]uring the course of an attempted extraction of one of her molars, part of the root of the tooth was pushed upwards through the wall of the plaintiff’s sinus and was lodged in the sinus. The plaintiff required remedial surgery and claims damages” @1. Mossop M concluded: (a) The location of the tooth, the breaking of the crown and the absence of movement in the remaining root indicated that by the time of the Second X-ray the risks of the defendant continuing with the extraction outweighed the benefits. (b) The defendant continued the extraction in circumstances where a reasonably competent general dentist would have recognised that the risks associated with continuing were significantly greater than if the plaintiff was referred to an oral surgeon. (c) Notwithstanding the expressed wishes of the patient, it is the dentist that remains in control of the procedure and whether or not it is pursued. That is of particular significance where a patient who has suffered significant pain prior to attendance and a long and difficult extraction. The desire of the patient to have the process successfully completed does not compel or justify a dentist in continuing to persevere when the risks outweigh the benefits. … [A]t the time of the Second X-ray the defendant breached his duty by not ceasing to treat the plaintiff and referring her to an oral surgeon or a general dentist with experience in oral surgery” @134-135. D’s “breach of duty caused the wall of the maxillary sinus to be perforated” @149. P was “faced with the necessity for unpleasant emergency surgery in order to recover the tooth root. She suffered osteomyelitis as a complication of that. That was associated not only with pain but the uncertainty of not knowing her condition or its prognosis. She suffered the unpleasant and uncertain effects of antibiotic treatment over months as well as six days hospitalisation in order to have antibiotics administered intravenously. Although the course of her condition was unpredictable and uncertain she was free of osteomyelitis by August 2011. Since then she has suffered facial pain, headaches and consequential fatigue which have substantially altered her work and home life. She is likely to do so for the indefinite future. Her goal of practicing as a vet, which she pursued with determination in middle age, has been thwarted and she faces the prospect of only being able to realise her goal in a very limited way notwithstanding her stoicism and perseverance” @187-188. P developed Bell’s Palsy and such also determined to be caused by incident and aftermath. P awarded general damages of $170,000 among other heads. P was developing her own veterinary practice at the time of her injury, but subsequent to her injury became a District Veterinary Officer. P’s ability to earn in either capacity compromised and her damages for LOEC were assessed.

NSW CLA s5 … Diving injuries

See Miller v Lithgow City Council28/11/14 [2014] NSWSC 1579 where Hulme AJ held a swimming school liable for serious injury to 12 year old student who slipped while performing a track start dive into the shallow end during a training routine. P hit the bottom and became a tetraplegic. The council/pool owner was not liable.