Advanced Arbor Services Pty Limited v Phung

Advanced Arbor Services Pty Limited v Phung - [2009] NSWSC 1331 - NSWSC 2009 case summary — Zoe

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Factual Findings Concerning Mr Dean's Injury and Treatment by the Defendant 11 In November 2001, Mr Dean commenced employment as a labourer with the Plaintiff. His work involved tree lopping and tree trimming at various locations in Sydney. 12 In December 2001, Mr Dean signed an application to become part of the Australian Traineeship System. He signed a certificate and indenture of traineeship with the Plaintiff as his employer. 13 On 19 December 2001, Mr Dean had an accident at work. Whilst pushing branches into a chipper at a worksite at Bexley, a small log jumped out of the chipper and struck him on the chin. Mr Dean observed some blood and a tooth fragment in his mouth, together with a cut on his tongue. He rinsed his mouth with salt water and spat out a few chips of teeth and then returned to work for the rest of the day (T91-92). 14 Mr Dean continued to work up to Christmas 2001, experiencing no difficulty in performing tasks other than some pain in his mouth. During the January 2002 holiday period, Mr Dean experienced some pain in his teeth. He had no dental health issues prior to suffering the workplace injury on 19 December 2001. 15 In January 2002, Mr Dean commenced to complain about a sore mouth and teeth to Mr Beattie, a director of the Plaintiff. Mr Beattie made contact with the Defendant, a dentist whom Mr Beattie had attended previously, to arrange an appointment for Mr Dean in regards to his workplace injury. Mr Beattie told the Defendant that he had an employee who had injured his mouth at work and who was complaining of a sore mouth and sore teeth, and he requested the Defendant to treat him. The Defendant agreed and Mr Beattie told him that it was a worker's compensation matter and that Mr Dean would come and see him, but that Mr Dean would not have to pay any bills, with the bills to be paid by the Plaintiff's insurance company (T104-105). Mr Beattie requested Wayne Fitzsummons, an employee of the Plaintiff, to make an appointment for Mr Dean to see the Defendant and this was done. 16 Mr Dean attended the Defendant's dental surgery for the first time on 16 January 2002.

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17 A worker's compensation claim form dated 24 January 2002 was completed by Mr Dean and the Plaintiff for the workplace injury (Exhibit D, pages 43-44). The Plaintiff made a claim to GIO General Limited for the workplace injury. On the claim form, the Plaintiff was listed as the employer. 18 By letters dated 1 February 2002 on the letterhead of the New South Wales Treasury Managed Fund ("TMF"), said to be "Managed by GIO General Limited", Ms Ruth Woodland, TMF Scheme Manager, Workers Compensation, notified the Plaintiff and Mr Dean that liability for the claim for worker's compensation for the workplace injury was accepted. The letters explained that this "means we will pay reasonable and necessary medical, hospital and associated expenses for the worker" (Exhibit D, pages 50-51). 19 These letters described the employer as "Australian Traineeship System". However, it is clear on the evidence that this information comes from the computer system which "pre-populates" the document (Howard, T46-47) and is not a true indication of the name of the employer. 20 It was the evidence of Ms Howard, an insurance officer at GIO General Limited between 1980 and 2006, that the Plaintiff's insurance policy was managed by GIO General Insurance as an agent for the New South Wales Insurance Ministerial Corporation, and payments were made out of Consolidated Revenue, known as the TMF (T36, 37). This is consistent with the documentary evidence regarding the worker's compensation claim - the documents and claim forms had either the GIO General emblem, or the TMF emblem with a qualifier that read "managed by GIO General Limited". 21 Ms Howard gave evidence that, in 2001, she handled the administration of claims under the Australian Traineeship System, including the claim in relation to Mr Dean's workplace injury. She explained that under the Australian Traineeship System "the actual employers were businesses from all across the State [NSW]" (T38). I am satisfied from Ms Howard's evidence that the Plaintiff was Mr Dean's employer for the purposes of the Australian Traineeship System. 22 On 2 February 2002, the Defendant referred Mr Dean to Mayne Health Diagnostic Imaging, which issued a tax invoice to the Plaintiff dated 8 February 2002. 23 The Defendant treated Mr Dean on numerous occasions in 2002 and 2003. The Defendant stated in telephone conversations and billing documents that this treatment was reasonably necessary as a result of Mr Dean's workplace injury on 19 December 2001. 24 From January to June 2002, the Defendant issued memoranda of fees to the Plaintiff and/or Mr Dean for dental services provided to Mr Dean as follows:

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(c) 6 February 2003 in the sum of $10,000.00. 30 On 8 April 2003, the Defendant sent a letter concerning Mr Dean, again citing the TMF claim number (Exhibit D, pages 110-111). 31 On 19 June 2003, payment was made by TMF to the Defendant in the sum of $23,650.00 in response to the memoranda of fees for October 2002 to February 2003 referred to at [29] above. 32 Ms Howard gave evidence concerning payments made to the Defendant arising from dental services provided to Mr Dean. The claim relating to Mr Dean was referred to the Orange office of GIO General Limited, where Ms Howard worked, as that office dealt with all insurance for trainees under the Australian Traineeship System. 33 In due course, Ms Howard arranged for Mr Dean to be independently examined by Dr Andrew Howe, consultant dentist. Dr Howe examined Mr Dean on 10 April 2003. A file note on the GIO General Limited/TMF file records a telephone call from Dr Howe on 14 April 2003 during which Dr Howe observed that this was "a complete case of fraud … by the dentist". Reference was made to the "extremely poor dentistry job" on Mr Dean and it was said that details would be in Dr Howe's report (Exhibit D, page 114). Dr Howe sent a report dated 14 April 2003 to GIO General Limited/TMF (Exhibit D, pages 119-123). Dr Howe reported that, on examination, there were "twenty eight metal ceramic crowns in the occlusion they are generally poorly performed and many are missing porcelain due to grinding and chipping of the crowns" and that "many of the crowns have poor marginal fit and contour" (Exhibit D, page 120). Dr Howe observed that he found it "quite impossible to believe that Mr Dean fractured 28 teeth in the accident" (Exhibit D, page 121). Dr Howe concluded (Exhibit D, page 122): "I find it difficult to believe that Mr Dean suffered the devitalization and fracture of every tooth in his mouth in what must have been a minor injury. It would appear that he did receive some form of injury to some teeth." 34 It will be observed that the information from Dr Howe was received in April 2003, before the payment to the Defendant on 19 June 2003. The Defendant provided a report dated 8 April 2003 to GIO General Limited/TMF, which was received on 15 April 2003 (Exhibit E; T57-58). 35 Ms Howard gave evidence, which I accept, that she was concerned by the information from Dr Howe in April 2003, but considered that the obligation to pay the Defendant's memoranda of fees continued as liability had been accepted, and that further treatment was required by Mr Dean (T59-60). Ms Howard explained her belief (T60.40): "Q. Can you tell me why you believed that? A. I believed that because sometimes patients receiving medical treatment don't have good outcomes. They might even have additional problems as a result of some treatment given, and that the liability for that further treatment rests with the insurer, because they are still liable for that injury." 36 Ms Howard said that she "was sure that we were still liable for [Mr Dean's] further treatment" (T61). Ms Howard explained why payment was made to the Defendant after April 2003 (T63.14): "Q. It is accepted that those payments were made after April 2003? A. Yes.

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Q. And was that your understanding as a senior person in the GIO at Orange of the legal position in relation to Mr Dean's entitlement? A. Yes." 37 I return to this topic later in the judgment (at [91]ff). For present purposes, it is sufficient to record my finding that GIO General Limited/TMF made payment to the Defendant in June 2003, believing that there was an obligation to do so because of the acceptance of liability and the provision of reports by the Defendant concerning Mr Dean. Although Dr Howe's telephone call and report raised real issues concerning the extent of treatment being provided by the Defendant to Mr Dean, the view was taken that all of this stemmed from some injury suffered in the workplace which saw Mr Dean attending the Defendant in the first place. This view may be fairly characterised as a mistake in law. The June 2003 payment was made to the Defendant in the mistaken belief that he was entitled to the payment as part of the acceptance of liability by the insurer. 38 Following June 2003, the nature and extent of the Defendant's inappropriate work performed on Mr Dean became entirely clear. 39 The Defendant's treatment included removing the nerves from all of Mr Dean's teeth, reducing all the teeth and placing crowns on all of the 28 teeth in Mr Dean's mouth. Unchallenged expert dental evidence from a general dental practitioner and a specialist prosthodontist is highly critical of the dental treatment provided by the Defendant to Mr Dean. By way of example, Dr Howe, consultant dentist, in a report of 5 July 2007 observed at pages 10-11: "It is extremely unlikely that any of the dental services provided by Dr Phung were necessary. Personally I believe that none of the dental services provided by Dr Phung were accident related. The standard of treatment provided by Dr Phung fails to meet an acceptable standard. The standard of endodontic treatment and crown treatment provided do not meet an acceptable standard of care. The occlusion provided by the occlusal tables of the crowns is poor and many teeth have had the porcelain removed from the occlusal surface and no stable occlusal position is achievable. The fit of the crowns is poor and there is no possible merit in splinting the crowns together this is not regarded as acceptable treatment and makes cleaning difficult and predisposes to periodontal problems. It is my belief that all the endodontic treatment will need to be replaced and all the crowns that have been placed will need replacement immediately. … There are twenty-eight metal ceramic crowns they are generally poorly performed and many are missing porcelain due to grinding and chipping of the crowns. Many of the crowns have poor marginal fit and contour. Most of the teeth are splinted together or in groups of 3 this varied from the standard of an ordinary skilled dentist. … The total ongoing care for Mr Dean's dentition is as a result of Dr Phung's treatment. Mr Dean will require meticulous cleaning and maintenance and ongoing replacement of the crowns now replacing Mr Dean's natural dentition. I believe that this is a result of Dr Phung's treatment that varied from the standard of an ordinary skilled dentist. All of Dr Phung's treatment for Mr Dean would be described as inexcusably bad and completely outside the bounds of what any reputable dental practitioner might prescribe or perform. The treatment was obviously unnecessary and improper and it is the nature of a gratuitous aggravation of any existing injury." 40 Dr Neil Peppitt, consultant prosthodontist, examined Mr Dean. In a report dated 9 October 2003, Dr Peppitt described the case of Mr Dean as an "amazing case". In a later report dated 7 January 2008, Dr Peppitt was highly critical of the Defendant's treatment of Mr Dean (page 3): "The fees charged by Dr Phung whom I understand to be a general dental practitioner were well in excess of both the national and state average for fees charged by general dental practitioners at the same period. … In my review of the dental literature I have not come across a case where minor trauma, in this case a blow to the chin, necessitated all teeth having their nerves removed due to a diagnosis of irreversible pulpitis. … This case was never referred by Dr Phung for specialist review. I find it difficult to understand how Dr Phung could proceed to remove every nerve of every tooth in the patient's head without wishing to confirm his diagnosis and treatment regime with a specialist endodontist or someone experienced in managing facial pain. In 25 years as a Specialist Prosthodontist with a subspecialty of facial pain management I have never experienced or read of in the literature a treatment plan of this nature. … All the root canal therapies performed by Dr Phung were inadequate and needed to be redone. … Dr Phung's original diagnosis and subsequent treatment by itself resulted in permanent disability to Mr Dean's mouth. Mr Dean had very little in the way of dental disease or previous dental treatment when he first attended Dr Phung. He has now a full mouth reconstruction and will need ongoing maintenance for the rest of his life and in many ways can be described a dental cripple. … … it is my opinion that worst-case treatment scenario for Mr Dean following his initial workplace injury would have been root canal therapy to 3 teeth. Mr Dean has in fact had 28 root canal therapies. 25 teeth, by my estimate, have been over treated. Mr Dean had every nerve, artery and vein within every tooth in his head amputated. … The simple fact that Mr Dean now has a full mouth reconstruction will probably preclude him from general dental care and restrict him to specialist care for the rest of his life. The average general dental practitioner would not attempt a full mouth reconstruction without adequate training. That training is only to be obtained in postgraduate education and is not provided in a general dental degree." 41 The Defendant did not give evidence at the hearing, nor did he adduce any expert evidence, and these strong criticisms of the treatment given to Mr Dean were unchallenged. It was against this background that the Defendant came to make the admission referred to at [6] above under s.70(1)(c) Civil Procedure Act 2005. I am satisfied that:

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(4) A policy of insurance deemed by this section to be held by an employer shall contain such provisions as are prescribed by the regulations." 51 As at 19 December 2001, the applicable regulations were the Workers Compensation (General) Regulation 1995. Clause 53 of the Regulations related to "Trainees under Australian Traineeship System" and provided: "A policy of insurance deemed to be held by an employer under section 158 of the Act must contain the provisions specified in Form 4 in respect of domestic or similar workers, subject to the omission of any reference to the payment of premiums for the policy and the making of a proposal in relation to the policy." 52 Clause 5 of Form 4 in the Workers Compensation (General) Regulation 1995 provided relevantly: "5. Insurer is directly liable to workers The Insurer (as well as the Employer) is directly liable to any worker … to pay the compensation under the Act or other amount independently of the Act for which the Employer is liable and indemnified under this Policy. This means that a claim can be made and action taken directly against the Insurer." 53 Clause 12 of Form 4 Workers Compensation (General) Regulation 1995 provided relevantly: "12. Subrogation The Insurer can use the name of the Employer in any proceedings to enforce, for the benefit of the Insurer, any order made for costs or otherwise. The Insurer has the right of subrogation in respect of all rights which the Employer may have against any person or persons who may be responsible to the Employer or otherwise in respect of any claim for any injury covered by this Policy. The Employer must execute such documents as may be necessary for the purpose of vesting any of those rights in the Insurer, as and when required to do so by the Insurer." 54 Clause [8], Workers Compensation Legislation Amendment (Trainees) Act 2003 provided that: "Section 158(2) of this Act (as in force immediately before its repeal by the 2003 amending Act) continues to have effect in relation to any person employed as a trainee immediately before that repeal until 31 December 2004, or to the end of the traineeship, whichever first occurs." 55 The New South Wales Insurance Ministerial Corporation was constituted as a corporation by the Government Insurance Office (Privatisation) Act 1991, whereby the assets, rights or liabilities that were part of the business undertaking of the GIO (which was a body corporate incorporated under the Government Insurance Act 1927) were to be part of the new privatised corporation other than excluded undertakings (per s.24). 56 The NSW Self Insurance Corporation Act 2004 constituted the NSW Self Insurance Corporation as a body corporate to have the functions with respect to the operation of government managed fund schemes, and entering into insurance or other agreements. Schedule 1 Part 2 clause 2 provided that the NSW Self Insurance Corporation was a continuation of, and the same legal entity as, the New South Wales Insurance Ministerial Corporation that was constituted by the Government Insurance Office (Privatisation) Act 1991. 57 The NSW Self Insurance Corporation Act 2004 noted the continuation of the TMF which was "taken to be a government managed fund scheme subject to this Act" (per Schedule 1, clause 3). 58 These matters were summarised succinctly by Smart AJ in an interlocutory judgment on 9 February 2009 at [3]-[4]: "3. While some of the documents bear the heading Treasury Managed Fund, it is not, as such, a legal entity. As a result of the combination of the Government Insurance Office (Privatisation) Act 1991 No 38 sections 4(1) (definition of Ministerial Corporation) 24 and 28 and NSW Self Insurance Corporation Act 2004 ss7(2)(c) and (d) and Schedule 1 clauses 2 and 3, NSW Treasury Managed Fund is taken to be a Government managed fund scheme subject to the latter Act and is subject to and part of NSW Self Insurance Corporation which is a continuance of and the same legal entity as NSW Insurance Ministerial Corporation constituted by the 1991 Act earlier mentioned.

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The Defendant submitted that, at the time of this accident, s.158 was in existence subject to the provisions of sub-section 11 which made this case fall outside s.158 by reason of its occurrence in 2002. Thus, it was submitted that the Plaintiff cannot rely on s.158 in respect of this accident, and must rely upon the general law relating to policies of insurance. 62 The Defendant further submitted that GIO General Limited was required to consider ss.274 and 279 Workplace Injury Management and Workers Compensation Act 1998. Section 274 of that Act related to claims for weekly payments, and provided that within 21 days of a claim being received, the person on whom the claim was made must either accept or dispute liability. Section 279 of that Act related to claims for medical expenses and provided that "Within 21 days after a claim for medical expenses compensation is made the person on whom the claim is made must determine the claim by accepting or disputing liability", unless the employer has duly forwarded the claim to an insurer: s.279(2)(a). 63 I reject the Defendant's argument that s.158 cannot be relied on by the Plaintiff in these proceedings. Clause [72] of the Workers Compensation Legislation Amendment Act 1998 came into force on 1 August 1998. However in September 1999, a subsequent amendment to clause [9] Workers Compensation Legislation Amendment Act 1999 provided that: "Sections 158, 224B, 226 Omit 'after 30 September 1999' from sections 158(11), 224B (3), and 226(2) wherever occurring. Insert instead 'the private insurance start time'." 64 As at December 2001, when Mr Dean's workplace injury occurred, s.158(11) WC Act provided that "this section does not apply in respect of insurance for any period after the private insurance start time". In December 2001, s.3 WC Act provided "private insurance start time has the same meaning as in the Workplace Injury Management and Workers Compensation Act 1998". Section 4 Workplace Injury Management and Workers Compensation Act 1998 provided that: "private insurance start time means 4 pm on a day to be appointed by the Governor by order published in the Gazette for the purposes of this definition." 65 The Workplace Injury Management and Workers Compensation Act 1998 was amended by the Workers Compensation Legislation Further Amendment Act 2001, and s.4 (including the definition of "private insurance start time") was repealed. This amendment was retrospective to commence on 21 December 2001. As Mr Dean's injury occurred on 19 December 2001 and, therefore, remains under the old provision, I am satisfied that the Governor never appointed a date for the "private insurance start time" and, as a result, s.158 WC Act applies for the purpose of this case. 66 I reject the Defendant's submission with respect to ss.274 and 279 Workplace Injury Management and Workers Compensation Act 1998. I do not see that those provisions stand in the way of the Plaintiff's claim in any respect. 67 The Plaintiff may rely upon the principle of subrogation in these proceedings. The Defendant's argument that the compensation was paid by GIO General Limited on behalf of the New South Wales Self Insurance Corporation out of the TMF, so that the Plaintiff can establish no loss, should be rejected. 68 Clause 12 of Form 4 to the Workers Compensation (General) Regulation 1995 (at [53] above) expressly conferred upon the insurer the right of subrogation. 69 Even in the absence of the express right of subrogation, such a right would arise under the general law as an incident of the payment by the insurer pursuant to the deemed policy arising under s.158 WC Act. 70 Subrogation entitles an insurer to be put in the place of the insured, so that the insurer can take advantage of any means available to the insured to extinguish or diminish the loss for which the insurer has indemnified the insured: Derrington and Ashton, "The Law of Liability Insurance", 2nd edn, 2004, paragraphs 13-418ff, paragraph 22-001; Leigh-Jones, Birds and Owen, "MacGillivray on Insurance Law", 11th edn, 2009, paragraph 22-011. By indemnifying the insured against the loss, the insurer acquires the right to be subrogated to the position of the insured in order to exercise any of that party's rights that would reduce the loss, whether such a right is contractual, tortious, legal or equitable: Derrington and Ashton, "The Law of Liability Insurance", 2nd edn, 2004, paragraph 13-418. It is a core matter of the right of subrogation that a person exercising that right must sue in the name of the insured: WorkCover Queensland v Seltsam Pty Limited (2001) 53 NSWLR 518 at 522-523 [19]-[23]; Derrington and Ashton, "The Law of Liability Insurance", 2nd edn, 2004, paragraphs 13-420. The insured must agree to lend its name to the action: King v Victoria Insurance Company Limited [1896] AC 250 at 256; Derrington and Ashton, "The Law of Liability Insurance", 2nd edn, 2004, paragraphs 13-420. 71 A payment by an insurer under workers compensation legislation is made in discharge of an employer's liability, and is made by the insurer as statutory agent for the employer: ICI Australia Operations Pty Limited v WorkCover Authority of NSW (2004) 60 NSWR 18 at 76 [301]. Even a bona fide ex gratia payment by an insurer would entitle the insurer to be subrogated to the employer's rights under the policy of insurance: ICI Australia Operations Pty Limited v WorkCover Authority of NSW at 76 [302]-[304]. 72 I accept the Plaintiff's submission that, as a result of s.158 WC Act, the Plaintiff had a deemed contract with the insurer with respect to Mr Dean. The legal effect of that contract, as a result of the policy of insurance, was that the Plaintiff's rights can be subrogated to the insurer, for the purpose of recovery in the name of the Plaintiff. 73 I am satisfied that the insurer of the Plaintiff is entitled to bring these proceedings in the name of the Plaintiff. 74 I am satisfied that the insurance policy that covered Mr Dean under the Australian Traineeship System arose under the statutory regime and was sourced from the New South Wales Insurance Ministerial Corporation, managed by GIO General Limited. It is clear from the documents in evidence that GIO General Limited acted as agent for the insurer, and made payments to the Defendant on behalf of the insurer which, in turn, is entitled to bring these proceedings in the name of the Plaintiff. 75 I am satisfied that the present proceedings are properly brought in the name of the Plaintiff, whereby the insurer seeks to enforce rights in reliance upon the principle of subrogation.

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Decision 91 Mistake as to fact giving rise to legal liability to make a payment is the most common category of mistake: Norwich Union Fire Insurance Society Limited v William H Price Limited [1934] AC 455. So long as the Plaintiff's mistake caused the payment, restitution is generally available. 92 In South Australian Cold Stores Limited v Electricity Trust of South Australia (1957) 98 CLR 65 at 74 it was said that mistake includes a belief as to the existence or non-existence of a state of affairs, factual or legal, which turns out to be mistaken. In the present case, the evidence suggests that GIO General Limited made payments on behalf of the TMF, because it trusted that the dental services being provided to Mr Dean were as a result of his workplace injury. It believed that the payments were being made under the deemed insurance policy applicable to the Australian Traineeship System. 93 It has long been accepted that forgetfulness or other negligence will not preclude recovery by a plaintiff whose mistake led to the payment: Mason and Carter, "Restitution Law in Australia, 2nd end, 2008, paragraph [421]. 94 In Kelly v Solari (1841) 9 M & W 54; 152 ER 24, an insurance company paid out a life insurance policy overlooking the fact that it had lapsed during the deceased's lifetime for non-payment of premiums. This did not bar the right of recovery, although the court would have rejected the claim had it been established that the plaintiff had chosen to pay as a result of a conscious decision not to investigate the relevant facts carefully. Later cases such as Banque Financiere de la Cite v Parc (Battersea) Limited [1999] 1 AC 211 at 235 and Scottish Equitable Plc v Derby [2000] 3 All ER 793 have confirmed that the payer's negligence does not affect the right of recovery. Where an agent mistakenly pays over money held for a principal, the principal may sue the recipient: Taylor v Smith (1926) 38 CLR 48; Mason and Carter, "Restitution Law in Australia, 2nd end, 2008, paragraph [434].

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Decision 103 A contract is an agreement which produces an obligation between parties. Contracts are frequently informal, with little specific negotiation, and terms are often implied to complete the parties' bargain, either in specific fact situations or in certain commonly occurring contractual relationships. A contract for the provision of professional services contains implied terms for the exercise of reasonable care in its performance: Astley v Austrust Limited (1999) 197 CLR 1. 104 Mr Beattie gave evidence that, in January 2002, he contacted the Defendant and told him that he "had an employee who had injured his mouth at work, that he was complaining that he had a sore mouth, sore teeth and would he look at them" (T104). He said that he "was acting out of my responsibilities as his employer" when he contacted the Defendant, and he told Mr Dean to attend and seek the services of the Defendant (T113). 105 Mr Beattie told the Defendant that it was a worker's compensation matter (T104). Mr Beattie told the Defendant "that Todd [Mr Dean] would not have to pay any bills in relation to any damage related to an injury sustained at work" (T104). Mr Beattie told the Defendant that "our insurance company" would pay the bills (T104). The Defendant agreed to see Mr Dean on these terms (T104). 106 The Plaintiff made the appointment for Mr Dean at the Defendant's dental surgery. The Defendant wrote letters and update reports to the Plaintiff with invoices attached for the dental work that was performed on Mr Dean (T106). Mr Beattie spoke to the Defendant on the telephone "a couple of times and asked what was happening" in relation to Mr Dean (T106). The Defendant told Mr Beattie "that there was a lot of work to be done" to Mr Dean's mouth (T106). 107 The Plaintiff offered the Defendant the opportunity to see and treat Mr Dean, the Defendant accepted the offer and treated Mr Dean in exchange for payment by the Plaintiff. 108 Having regard to all of the circumstances, I am satisfied that the objective intention of the Plaintiff and the Defendant was to enter into an agreement where the Defendant provided professional dental services which were reasonably necessary to treat the workplace injury complained of by Mr Dean, in exchange for payment. Post-contractual conduct may be examined for the limited purpose of determining whether or not a contract existed between parties: Sagacious Procurement Pty Limited v Symbion Health Limited [2008] NSWCA 149 at [69], [99]-[106]. Evidence of post-contractual conduct in this case reinforces a finding favourable to the Plaintiff that a contract existed. 109 The Defendant admitted at hearing that the treatment and advice that he provided to Mr Dean was inexcusably bad (T28). I am satisfied that a contract existed between the Plaintiff and Defendant as submitted by the Plaintiff, and that the contract was breached by the Defendant in fundamental respects.

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Decision 120 I am satisfied that the Defendant supplied his services as a professional dentist. The Defendant provided dental services to an employee of the Plaintiff, in exchange for payment made by the Plaintiff. These circumstances bear a trading or commercial character: Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594; Houghton v Arms [2006] 225 CLR 553; HCA 59. I am satisfied that the Defendant was engaged in conduct in trade or commerce. 121 I accept the Plaintiff's submission that the Defendant represented that he was a competent dentist, and that this was misleading and deceptive as defined by s.52 TPA and s.42 FTA. 122 In his report of 5 July 2007, Dr Howe states that "It is extremely unlikely that any of the dental services provided by Dr Phung were necessary ... Personally, I believe that none of the dental services provided by Dr Phung were accident related". Dr Howe also noted that "the standard of treatment provided by Dr Phung fails to meet an acceptable standard…and fails to meet an acceptable standard of care" and "The standard of care provided by Dr Phung … varied from the standard of an ordinary skilled dentist". Dr Howe recommended that the treatment provided by the Defendant be completely replaced by another dentist. 123 When considering how a reasonable person might view a particular representation, it needs to be borne in mind that there can be more than one reasonable response in any given circumstance. The test for reasonableness involves considering the boundaries of the range of those responses: National Exchange Pty Limited v ASIC [2004] FCAFC 90. 124 I am satisfied that the Defendant misrepresented that he was a competent dentist and that the Defendant misrepresented that the dental services provided by the Defendant, as set out in the January to June 2002 memoranda of fees, were to the standard of an ordinary skilled dentist. 125 I am satisfied from the evidence that the Defendant was aware that the Plaintiff (or it's worker's compensation insurer) would be paying the Defendant's invoices for the treatment of Mr Dean. I am satisfied that the Defendant misrepresented that the dental services, as set out in the January to June 2002 memoranda of fees, were provided to Mr Dean by the Defendant because they were reasonably necessary as a result of the workplace injury received by the worker. 126 In the present case, the Plaintiff made payments to the Defendant in reliance on the Defendant's representations. I am satisfied that a reasonable person in the position of the Plaintiff would have placed reliance in the Defendant's representations. 127 In order to recover damages, the Plaintiff must prove that the loss or damage claimed to have been suffered arose from conduct in breach of the TPA of FTA. Causation is essentially a question of fact, to be determined by reference to common sense and experience and one into which policy considerations and value judgments necessarily enter: March v Stramare (E & MH) Pty Limited (1991) 171 CLR 506. I am satisfied that the relevant loss arose directly from conduct of the Defendant which breached the TPA and the FTA. 128 As the FTA applies clearly to the conduct of the Defendant as a professional person, the more appropriate statute under which relief ought be granted is the FTA.

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