What happened

Following implant replacement in 2016, the claimant experienced ongoing discomfort and an unsatisfactory physical result. A plastic surgeon identified malpositioning requiring corrective surgery, while a psychiatrist reported depression and an adjustment disorder. The self-employed claimant also experienced restrictions at work and in daily life.

The issues

The question at this stage was the extent of proven loss rather than liability. The court assessed pain, psychiatric effects, loss of amenity, corrective treatment costs and time away from work for surgery.

The court's decision

Accepting the claimant's evidence as credible and compelling, the court awarded non-economic loss, past and future earnings loss and treatment-related expenses. It ordered ordinary costs, with a separate restriction on solicitors' fees for a wasted listing. The judgment did not order an insurer to pay the award.

Understanding the figures

The AUD 304,000 award comprised AUD 261,000 non-economic loss, AUD 5,000 past earnings loss, AUD 3,000 future earnings loss, AUD 30,000 future expenses and AUD 5,000 past expenses. Costs were separate. This was judgment against the doctor, not evidence that the money was paid.

What this case shows

Default judgment did not remove the need to assess damages from evidence and medical opinion. The decision considered physical and psychiatric consequences together, while confining future earnings loss to the expected corrective-surgery absence. Obtaining judgment and establishing insurance cover were separate matters.

Why another case may differ

This was an assessment after default judgment, rather than a contested trial of liability. In the related 2022 Clark v Avant Insurance decision, leave to appeal the refusal of permission to proceed against the insurer was dismissed. The 2023 award therefore establishes neither insurance payment nor actual recovery, and its historical non-economic-loss percentage is not a tariff for another case.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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