Babic v De Souza

Background to appeal

1. The appellant was the applicant in proceedings lodged on 4 January 2019 in respect of the provision of anaesthetic services by the first respondent on 8 January 2016 for a hernia repair procedure at the private hospital premises of the second respondent in southern Sydney NSW.
2. There was no issue at the primary hearing and on appeal that the Tribunal had jurisdiction. The claim was made under the Australian Consumer Law (NSW) (ACL) which is part of the law of NSW under s 28 of the Fair Trading Act 1987 (NSW) (FTA). As defined in FTA Pt 6A, the appellant was a consumer and the respondent a supplier, the supply of the services was in NSW, the claim was a consumer claim for one of the available statutory remedies and was in time and under the Tribunal's monetary limit. The Tribunal is exercising State, not federal, jurisdiction in respect of the ACL as part of State Law under the FTA: Burns v Corbett [2018] HCA 15; Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCA 254.
3. Leave for legal representation on the appeal was granted on 16 July 2019. The parties had been self-represented at the primary hearing, the second respondent by an employee.
4. The appellant (then applicant) alleged that the first respondent did not provide his services with due care and skill. As a consequence, a dental bridge in the upper right of the appellant's mouth was dislodged. The appellant claimed $31,000 to $36,000 being the range of quoted cost of dental implants in replacement of the irreparably damaged bridge, which also dislodged some permanent teeth when it came out, and associated remedial work. The appellant said that the second respondent was liable for the first respondent's acts as it ought to have supervised them.
5. The appellant alleged that, if the first respondent had given him more information, made a proper assessment pre-operation and adequately assessed and advised him of the risk involved, the appellant would have been in an informed position to consider how to mitigate the risks, assess other options and would not have gone ahead with the procedure.
6. The first respondent said he exercised due care and skill in accordance with established procedures, including pre-operation, testified to by peers. He said that the appellant failed to disclose the bridge in the pre-operation documentation.
7. The second respondent denied it was vicariously or otherwise responsible for the first respondent's acts because the first respondent, as a Visiting Medical Officer, was an independent contractor. In the alternative, it relied upon the proportionate liability provisions in Pt 4 of the Civil Liability Act 2002 (NSW) (CLA).

The primary decision

1. The primary member dismissed the claim "because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established".
2. In reaching this decision, the primary member relied upon the following findings of fact and conclusions from them.
3. First, the appellant had no independent expert evidence from an anaesthetist to support his contention about the first respondent's conduct. This meant the report from an anaesthetist called in support of what the first respondent did stood "unrefuted".
4. Secondly, the guidelines relied upon by the appellant "are not specific to his case and so carry little weight".
5. Thirdly, the evidence of one of the dentists relied upon by the appellant related to another bridge not the subject of the proceedings.
6. Fourthly, the appellant agreed in cross-examination that the bridge the subject of the proceedings was inserted in around 2009 and since that time he had had discussions with his dentist about repairing or replacing that bridge, and had chosen repair.
7. Fifthly, the appellant declined to attend an examination by the first respondent's dental expert. In that situation the dental expert relied upon extensive information about the appellant's dental history which enabled him (despite the absence of a tomography that was not made available to him), the primary member found, to make "a reasoned case about the [appellant's] frequent dental history and as to the state of the subject bridge".
8. Sixthly, that dental expert's assessment based on the appellant's dental history made it difficult, the primary member found, "to draw a causal connection between the first respondent's conduct and the dislodgement of the subject bridge. It is even harder to draw the long bow the [appellant] asks, namely, that the dislodgement of the subject bridge, now means, as the [appellant] maintains, that repair or replacement are no longer options and that implants are the only way forward".
9. Seventhly, the dental expert's assessment based on the appellant's dental history made it difficult, the primary member found, "to understand the view of the [appellant's dentist's letter in January 2016] that 'The bridge has been well maintained and functional. This weakens the weight of [the appellant's dentist's letter]".
10. Eighthly, the first respondent did not see the appellant until the appellant was moved into near the operating rooms where the first respondent already had been working. In accordance with usual procedures, the appellant's wife (who gave evidence) was not present at that point and could not testify to what occurred in that pre-operation interview where the first respondent said that the relevant assessment and documentation occurred.
11. Ninthly, there was no expert evidence to contradict the first respondent's explanation of the "Pre-Anaesthetic Assessment" documentation and the first respondent's evidence that the completion of that document was in keeping with the first respondent "discharging his duty to act to a standard of a competent anaesthetist and was in accordance with usual practice and procedure".
12. Tenthly and finally, the appellant agreed in his evidence that the first respondent, in using the Laryngeal Mask Airway, used the most "low risk" procedure in administering the anaesthetic to the appellant.

Applicable law

1. The ACL provides, in respect of the supply of goods to a consumer, guarantees that the goods supplied are of acceptable quality (ACL s 54), are reasonably fit for any expressly or implicitly disclosed purpose or supplier-represented purpose (s 55), and correspond with the description by which the goods are supplied (s 56). Where these guarantees are not complied with, the consumer has rights pursuant to ACL ss 259-264 to remediation, to compensation for reasonably foreseeable loss or damage arising by reason of the non-compliance, and, in the case of a major failure, the right to reject the goods and obtain a refund, provided that such right to claim a refund is exercised within the "rejection period".
2. The ACL provides, in respect of the supply of services to a consumer, guarantees that the services were supplied with due care and skill (ACL s 60) and were reasonably fit for any expressly or implicitly disclosed purpose or result (s 61). Where these guarantees are not complied with, the consumer has rights pursuant to ACL ss 267-269 to remediation, to compensation for reasonably foreseeable loss or damage by reason of the non-compliance and, in the case of a major failure, or another failure which has not been remedied by the supplier as required, the right to obtain a refund, provided that such right to claim a refund is exercised within the "rejection period".
3. Section 64 of the ACL provides that the consumer guarantees cannot be excluded; however, s 64A permits the contractual limitation of the remedies for breach of a consumer guarantee if the goods or services are of a kind not ordinarily acquired for personal, domestic or household use or consumption.
4. In Safi v Heartland Motors PL t/as Heartland Chrysler [2016] NSWCATAP 80 at [85]-[107] the Appeal Panel analysed the case law on what constituted a major failure under the consumer guarantee provisions of the ACL mentioned above, summarising its conclusions at [99]-[102]. The Panel rejected the view that any breach of the guarantee of acceptable quality is a major failure. Under s 260(a), the test is objective. A series of individual or specific defects taken as a whole may constitute a major failure. The cost of repairs relative to purchase price and the nature of the defect are factors. Of particular significance is whether the defects are "teething problems" or go beyond that in terms of extent, timing and frequency of repair: that is, whether or not the defects can be remedied easily and in a timely manner. Overall, the test is whether, faced with advance knowledge of the problems and what was needed in terms of time, costs and degree of difficulty to fix them, a reasonable consumer would have bought the goods or engaged the services or bought nothing or something else.
5. Under ACL s 260(a), the rejection period for goods that are subject to a major failure is the period from the supply of the goods within which it would be reasonable to expect the relevant failure to comply with a consumer guarantee to become apparent, having regard to the type and likely use, and length of time and amount of use before a failure would reasonably become apparent. For a major failure constituted by chronic or repetitive defects taken as a whole, such a period is likely to be longer than for a single catastrophic defect. If there is a major failure, the consumer's entitlement to a refund is not dependent on proof of loss: Ferraro v DBN Holdings Aust PL t/as Sports Auto Group [2015] FCA 1127.
6. The focus of the appellant's claim was on ACL s 60.

Grounds of appeal and extension of time to appeal

1. The Notice of Appeal was lodged on 4 July 2019, two days out of time according to the time of receipt by the appellant of the primary decision made 31 May 2019. No prejudice was demonstrated by that slightly late lodgement. We grant an extension of time to appeal (which includes seeking leave to appeal where leave is required) to and including the date of lodgement of the notice of appeal.
2. At the hearing the appellant's counsel distilled the elaborate grounds of appeal to one, being (in essence) that leave to appeal should be granted and then the appeal should be allowed on the basis that the findings of the primary member constituted errors of fact that were against the evidence and the weight of evidence and there was a significant possibility of a different outcome if the facts had been correctly found.
3. No party sought at the hearing leave to appeal on the basis of further evidence, although the appellant had sought in written material to rely upon further evidence.
4. All parties agreed at the hearing that the material in the appellant's folders and the respondents' material contained the material before the primary member, apart from documents created for the appeal such as submissions.
5. All parties agreed at the hearing that, if the appellant succeeded on the appeal, we should determine the matter on the material before us rather than remit it to the Consumer and Commercial Division.

Applicable legal principles

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
2. Clause 12 of Schedule 4 to CATA states: An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
5. These categories are not exhaustive of errors of law that give rise to an appeal as of right. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as specifically included: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
6. The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error (a form of error of law): AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 at [52]-[56].
7. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
8. Legal unreasonableness can be concluded if the Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li (2013) 249 CLR 332 at 367 [76]). There is an analogy with the principle in House v The King (1936) 55 CLR 499 at 505 that an appellate court may infer that there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness as a ground of judicial review: Li at 367 [76]. Further, there is some authority to the effect that unreasonableness as a ground of review may apply to factual findings, although this has not been finally resolved: see Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [153]; Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 at [29]; Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [193].
9. The Appeal Panel has stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: Prendergast at [12].
10. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows: 74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 The general principles derived from these cases can be summarised as follows: … (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
11. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37] -[39]: 37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'
12. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
13. Even if the appellant establishes that he or she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]) The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Panel's consideration of whether or not to exercise that discretion.
14. In dealing with errors of law and errors of fact, the Panel must be cognisant that the two can intermingle. The Panel must also be alert that, under Australian law, there is a different approach to matters between two situations. The first of these is where the particular decision has involved evaluation from findings of primary facts and the drawing of inferences therefrom on which reasonable minds may differ but which must be accepted as legally correct unless overturned or varied on appeal. The second situation arises where there has been an exercise by the primary decision-maker of a discretion or choice embodied in the statute or law being applied, including as to whether relief is to be granted or refused and the form of relief: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155].

Error of law

1. At the hearing no error of law was pressed by the appellant.

Grant of leave to appeal on questions of fact

1. We have already summarised the distilled ground as put at the hearing: that leave should be granted because the primary member's findings were against the evidence and the weight of evidence and, if corrected, there was the significant possibility of a different outcome.
2. In our view the primary member's findings were thoroughly consistent with the evidence before her and she correctly assessed the weight of that evidence. At the least, her assessment was not such that it was near the edge of the range of possible assessments of weight as submitted for the appellant. We thus do not need to consider the other two gates through which the appellant would need to pass as set out above.
3. Instead of independent expert evidence which challenged the opinions of the first respondent, the manner of completing the pre-operation documentation, the independent dental expert and the independent anaesthetist, the appellant sought to rely upon his own researches into generic material such as standards and guidelines of the first respondent's professional organisation and other relevant requirements concerning consultation with patients. This did not have the weight to overcome the forensic weight of the evidence supporting the first respondent's case.
4. Generic statements, however peer-prepared, do not contain a factual application or assessment in respect of particular circumstances. Even when taken into account, they will have less weight than reports by experts which have undertaken that application or assessment process. Those experts take what was done (on the factual assumptions they are given) and assess that against the general standards and guidelines to see if those standards and guidelines have been satisfied by what was done.
5. The appellant said that this was not a case about negligence, but the due care and skill element in the consumer guarantee sued on (ACL s 60) raises substantially similar content and substantially similar requirements for evidentiary proof in relation to the first respondent's conduct even if the duty of care requirement is not directly present as it is in the tort of negligence.
6. The appellant criticised the expert reports relied upon by the primary member because they gave opinions based on factual assumptions consistent with the first respondent's evidence and documents available to the experts such as dental records. The primary member in her reasons clearly, and in the circumstances properly, accepted the records and other bases for those factual assumptions in preference to other material adduced by the appellant.
7. In particular, the pre-anaesthetic check filled out by the first respondent noted a low Mallampati score which indicated a lack of likely difficulty with airway. Such a report was based on and followed an internal inspection of the appellant's mouth. It also noted two upper bridges. The first respondent explained that he did not note the lower bridge because the upper incisor was most likely at risk for dental damage during anaesthesia. (The first respondent accepted in his pre-hearing evidence that it was a mistake not to note the third bridge. That omission was not causative of any claimed loss.) The patient medical history filled out by the appellant pre-admission noted "Crowns" under the heading "Dentures/caps/crowns/loose teeth"; a pre-operative checklist dated 8 January 2016 noted bridges and crowns.
8. The first respondent said that he made a clinical choice to use the non-metal, softer plastic alternative form of tubing "which is preferred in patients that are at risk of dental damage" and which had "the least risk of dental damage". This was a clinical assessment and choice within the scope of the first respondent's expertise, not a matter for choice of the appellant. The other choices - local anaesthetic and intubation through the nasal passage - carried risks that made them unsuitable for a patient with the appellant's pre-existing conditions and medication. In his statutory declaration made 3 January 2019 for the primary hearing the appellant said at para 57 that he knew he was going to have a tube down his throat as in previous operations and had not had problems in previous operations. He accepted, including in cross-examination, that the tubing used carried the lowest risk to dental work if intubation was the method.
9. The first respondent said in cross-examination that, if he had understood the full extent of dental decay and the state of the bridge, the only alternative to what he did (the technique with least risk of dental damage) would be not to go ahead with the surgery.
10. There was no indication in advance of what happened that the first respondent had any basis for not going ahead with what was necessary surgery, or that the appellant would have chosen the option of not going ahead. As the first respondent said in cross-examination: "It's [not going ahead] not a realistic option in 30,000 patients [the number treated by the first respondent] having discussed the dental risks with a patient pre-operatively, not one single one has decided not to go ahead with their surgery that is necessary because there's a one in 2,000 risk of dental damage". As further explored below, there was no evidence that the procedure was not necessary or could have been done with less dental risk; indeed, the evidence supported the contrary finding. The appellant accepted during the hearing that he did not refuse to go ahead "because I trusted you and I believed that you would take care of me", a statement consistent with what he said at para 58 of his statutory declaration made 3 January 2019. That effectively committed him to accepting the choice of the first respondent about the procedure to minimise the risk of going ahead. The first respondent's choice was one to make with due care and skill having regard to risk assessment; it was not a guarantee of an outcome.
11. Further, the first respondent (or a nurse) had already removed the anaesthetic delivery tubing prior to the appellant reaching the recovery room without what the first respondent said would be obvious "if something large like a bridge has been dislodged, it's going to come out with the [tubing] at the same time. But that did not occur." The first record of dental work coming adrift, in a hospital incident report, was 15 minutes after the removal of the tubing and the first respondent reaching the recovery room where the patient by then was in recovery mode, having been made conscious enough to co-operate with what was necessary to remove the tubing. The first respondent's own letter of 10 January 2016 said: "Although not entirely clear, it appears most likely that it became dislodged during removal of the [tubing]". This indicates at most that the removal of the tubing had some potential effect but dislodgment was delayed and may have been immediately prompted or exacerbated, after removal of the tubing, by unknown intervening events - the anaesthetic expert speculated that such events could have been a coincidental failure or the appellant clenching his teeth as the anaesthetic wore off, a frequent response to the onset of pain. The first respondent's (wrongly-dated) letter responding to the appellant's undated letter received 16 March 2016 enclosed relevant extracts from the medical records and relevantly stated: "[the process chosen] poses the lowest risk to teeth in anaesthesia"; "The insertion and removal of the [plastic tube] occurred without difficulty or force. All aspects of your anaesthetic care were routine and uncomplicated."; "It is impossible to see how the routine use of [the plastic tubing] can cause dental damage unless the teeth were decayed or weak. According to the recovery nurse's report, the first indication of damage to your bridge occurred in the recovery unit after your anaesthetic care was completed.".
12. The first respondent also pointed to the absence in the clinical notes by the second respondent's recovery nurse of dental bleeding: "When strong, healthy teeth are broken there will [be] blood, there will be a lot of blood because strong, healthy teeth have a healthy blood supply. There will be bleeding. Whereas decayed teeth that have been basically decayed with dental care over many, many years will not bleed".
13. The first respondent pointed to the clinical note that he was called back to the recovery room 5 minutes after the dislodgment. His signed note on the clinical notes records that the dental work came off in recovery and the patient stated that it was previously broken and stuck on with glue by a dentist; the note went on to record that, "On inspection, the areas appears significantly decayed". Whatever was the source of the report about the gluing (the patient in recovery mode or some other source), and whether the patient was significantly comprehending at the time to make an accurate statement (which he said he did not recall), the first respondent's comment about decay based on his observation was personal and direct. A nursing note on 10 January 2016 recorded that the patient spoke about payment for the dental work to fix his broken bridge "(broken in recovery)". The clinical notes shortly after return to recovery indicated that the patient's crown came off "in recovery" and the anaesthetist was aware.
14. The notes were clearly contemporary as they were in chronological sequence with no room for insertions.
15. The anaesthetic expert said that "the treatment provided to [the appellant] in relation to airway management and the provision of the anaesthetic on 8 January 2016 was in accordance with what is widely accepted by peer professional opinion, as competent and professional practice. … The [first respondent's] care and management as a whole [was] professional, competent and empathetic". It stated the pre-anaesthetic checks were appropriate, as was the choice of intubation, and "the technique of insertion and removal would have minimised the likelihood of dental damage". Professional guidelines were followed.
16. The letter provided by the appellant's dentist dated 14 January 2016 was very general in its comment on the appellant's bridges and their condition: "This bridge had been well maintained and functional. It cannot be replaced due to tooth foundation being damaged during surgery". It could have little weight.
17. Contrary to what the appellant's dentist's letter said in that or any other letter (a later letter was excluded from evidence), the independent dental expert's report stated that the teeth within the bridge scope were already dead or missing, with some damage to the bridge as early as 2009. At that early point the bridge was fractured and an impression was taken for a denture. The independent expert said that the bridge was doomed to failure at that point. This was based on the best evidence available, in the absence of co-operation from the appellant for an examination, being the appellant's dentist's clinical notes from 2009 to present.
18. On the dental records, the bridge fractured or otherwise required repair at least 9 times in that period. The teeth supporting it progressively decayed or died to the point that, two months before the surgery, the recommendation (repeated from previous failures and repairs) was to remove the bridge and replace with a partial denture which was again refused by the appellant.
19. There was no evidence from the clinical notes that anything was done in recovery to prompt the failure of the bridge.
20. The inference is at least that there was no chain of causation between what the first respondent did at any point and the failure of a bridge that was already beyond repair and likely to fail at any time, necessitating an alternative remediation such as the appellant now faced (and which had been previously recommended on several occasions and refused by him).
21. Taking into account the foregoing, we reiterate that the conclusion reached by the primary member was well within the range of what conclusions could be drawn from the evidence.
22. The appellant's wife's evidence was not accepted by the primary member as against other evidence. The first respondent's evidence was consistent with his already being involved with operations when the "Clinical Pathway" document relied on by the appellant was signed off on at a written time of 8.45am. The entry on that form relied upon by the appellant as corroborating his wife's presence was ambiguous in that it referred to the appellant being seen by "VMO/Anaesthetist" with no entry in the time box. It could be a reference to the VMO conducting the surgery. It could have been initialled knowing that the VMO and/or anaesthetist was seeing the appellant once he was within the clinical/operating area. Whatever the position, which is speculative, it was open to the primary member to place weight on other material (documentary and expert) that was consistent with the first respondent's overall evidence rather than the appellant's wife's recollection.
23. Taking the appellant's case at its most favourable for the outcome the appellant sought, it was an allegation of failure fully to advise of risk of dental damage and give a choice, and causation from that failure to advise.
24. The alleged failure to advise and give a choice was of the character that the choice was between a very low risk of dental damage on the one hand, and not having the surgery on the other hand. It was not suggested, and there was no evidence, that the surgery was elective or could be deferred with any different choice or could be deferred altogether. As already said, there was no clear contemporary basis for saying that the appellant would not have gone ahead if expressly given that choice and advised of the risk of going ahead: Rosenberg v Percival (2001) 205 CLR 434, [2001] HCA 18 esp at [14]-[16], [24] et seq, [60] et seq, [75] et seq, [83] et seq, [94] et seq, [140]-[142], [155] et seq, [208]-[213], [221]; Chappel v Hart (1998) 195 CLR 232, [1998] HCA 55 at [32] n64, [93(7)]. Against any contention made in the proceedings to that effect, one must take into account that, in the "Statement of Claims" document for the primary hearing, the appellant said at para 2 "I knew I had to have the operation and that I would be anaesthetized". The hernia operation, according to the appellant's chronology of events for the primary hearing and a statutory declaration of the appellant for that hearing, was required to repair a hernia previously repaired (in the chronology the previous repair was said to be unsuccessful). There were subsequent surgeries in respect of the hernia and bladder complications.
25. In those circumstances, while other decisions may have been within the range of giving acceptable weight to the evidence that differed from the primary decision, the primary decision was well within the acceptable range. Indeed, if we had decided the case we would have come to the same view as the primary member.
26. If the appellant fails against the first respondent he necessarily fails against the second respondent. There were no separate allegations of loss that were particularised against the second respondent other than those in which the first respondent was involved. Some allegations in submissions that the second respondent failed in post-operative care were not demonstrated to have increased or altered the claimed loss.
27. Defences were raised by the respondents under the CLA. We have not had the need fully to consider those in reviewing the primary member's decision on appeal and note that the primary member did not deal with them because of the factual conclusions that she reached.
28. However, we note that we consider that provisions of the CLA that do not directly relate to duty of care in the tort of negligence (which is not relied upon by the appellant) do apply to the allegation of breach of consumer guarantees concerning exercise of due care and skill and which are part of the law of NSW, as we have earlier discussed: Paul v Cooke (2013) 85 NSWLR 167, [2013] NSWCA 311 at [40]-[41]. In that situation, CLA s 5D(3)(b) reinforces our conclusion because it precludes reliance by the appellant on ex post facto statements by him about what he would have done if advised or warned or informed as he said he should have been. CLA s 5P removes the operation of s 5O (the peer opinion provision) in respect of alleged liability in respect of alleged failure to advise, warn or inform.

Outcome of appeal

1. The appeal accordingly fails and must be dismissed.

Costs

1. No party made express submissions on costs. No party sought that questions of costs be reserved until after the substantive determination of the appeal. Both parties exercised the right granted by leave for legal representation. The grant of leave for legal representation was without restriction or condition about costs orders (such as, for example, a grant on the basis that no order as to costs would be made whatever the outcome, which is sometimes the restriction or condition on grant of leave). The parties' legal representatives must be taken to have known the applicable costs rules. In those circumstances, it seems appropriate to deal with costs without further delay or expense to the parties about an argument on costs.
2. CATA s 60, together with rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules), provide that the ordinary costs rules apply, even in the absence of special circumstances required by s 60, where "the amount claimed or in dispute in the proceedings is more than $30,000".
3. That amount was exceeded in the applicant's (now appellant's) claims. Accordingly, the ordinary costs rules apply to these proceedings.
4. The starting point for exercise of costs discretion on the usual principles is that costs follow the event. "The event" is usually the overall outcome of the proceedings - did the successful party have to go to the Tribunal (in this case) to get what it achieved, rather than being offered at least that relief. If there are distinct issues on which the party seeking relief did not succeed, that may be taken into account in the exercise of costs discretion. Appeal Panel decisions have made no order as to costs (to the intent that each party paid its or their own costs) where there has been a measure of success on both sides: Johnson t/as One Tree Constructions v Lukeman [2017] NSWCATAP 45 at [25]-[29]; applied in Oppidan Homes PL v Yang [2017] NSWCATAP 67.
5. The outcome and reasons in Johnson and Oppidan do not qualify the application of orthodox principles for exercise of costs discretion in the present circumstances. The exercise of discretion in Johnson was in relation to the costs on appeal only: Johnson at [4]. The clear mixed outcome on appeal grounds meant that the original decision was maintained in a central respect but the original claim was otherwise to be the subject of a re-hearing. The outcome in Oppidan reflected the outcome of the primary hearing which involved claims by both parties. Neither is the case here.
6. For an award of costs on other than the ordinary basis, a party's conduct of the proceedings themselves, or the nature of the proceedings themselves (for instance, misconceived), or an outcome less favourable than an offer, are considered. The principles are explored in Latoudis v Casey (1990) 170 CLR 534, Oshlack v Richmond River Council (1998) 193 CLR 72 and in this Tribunal in Thompson v Chapman [2016] NSWCATAP 6 and Bonita v Shen [2016] NSWCATAP 159, citing earlier consistent authority. The principles have resonance with at least some of the "special circumstances" in CATA s 63 that are required to justify a costs order when rule 38A does not apply.
7. Here, the appeal has entirely failed and costs must follow the event. There is no material to support an award of costs on other than the ordinary basis.

Orders

1. The orders we accordingly make are as follows: 1. Extension of time to appeal is granted to and including date of lodgement of notice of appeal. 2. Leave to Appeal is refused. 3. Appeal is dismissed. 4. Appellant is to pay the respondents' costs of the appeal on the ordinary basis as agreed or assessed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2019