Dean v Phung

A preliminary question 11A preliminary question, as to whether the damages were to be assessed under the provisions of the Civil Liability Act 2002 ("the Act") or under the common law, required determination. This was an issue of some significance as, if the Act applied, it was common ground that a claim for exemplary damages would not be available (s 21 of the Act), a discount rate of five rather than three percent would apply, non economic loss would be capped and there would be limitations on interest recoverable. 12In chief the plaintiff gave evidence inter alia: "Q. Over the next roughly 18 months, did Dr Phung perform a series of dental procedures on your teeth? A. Yes. Q. Did you ask him at any stage to do any particular work? A. No. Q. Did you have done what Dr Phung told you you needed to have done? A. Yes. Q. Did you have any knowledge yourself at that stage of dental matters, or of teeth, or of things that needed to be done? A. No. Q What was it that caused you to go along with the advice that you were given by Dr Phung? A. Well I had one hundred per cent trust in Dr Phung because he's a dentist and I'm just a tree surgeon." 13In cross-examination the plaintiff said: "I virtually went there and said 'Look, I have got sore teeth and you're the dentist and can you fix it' and he said 'Yes I can'." 14He answered affirmatively the question: "On each occasion when you came back to see Dr Phung, you would tell Dr Phung that your teeth were hurting. You would either describe to him by pointing where the teeth were or you would answer his questions in relation to a percussion test; is that correct". 15The defendant made a number of admissions in the matter. There was a dispute as to whether certain of those admissions had been withdrawn. The plaintiff in his amended statement of claim had alleged: "10. On each and every occasion that the defendant performed any part of the treatment upon the plaintiff, the plaintiff's consent to the treatment was obtained by the defendant by fraud in that: (a) By the defendant's own admission, and as a matter of fact, none of the treatment was reasonably necessary. (b) The defendant misrepresented to the plaintiff, by the professional advice referred to in paragraph 9 above, that all of the treatment was reasonably necessary. (c) The defendant knew, at the time he made the misrepresentations as to the treatment being reasonably necessary (by the provision of the professional advice referred to in paragraph 9 above), that those representations were untrue. (d) The defendant made each of the misrepresentations for the purpose of obtaining a financial benefit for himself." 16It was ultimately agreed that the defendant admitted particulars (a) and (b), did not admit particulars (c) and (d) and totally disputed the opening words of para 10. 17The plaintiff also relied upon the particulars contained in para 12 of the amended statement of claim. Those particulars were: "(a) Providing dental and related treatment and advice which was not to the standard of an ordinary skilled dental surgeon. (b) Failing to provide the treatment competently. (c) Not being competent to provide the treatment. (d) Providing dental and related services and advice which were not reasonably fit for the purpose for which they were provided. (e) Providing dental and related treatment which was not required. (f) Advising the plaintiff to undergo treatment which he did not require. (g) Failing to refer the plaintiff to a practitioner who was competent to provide such treatment as the plaintiff did require." Each of these particulars was admitted by the defendant. 18Senior counsel for the defendant stated that "that [Dr Phung's] treatment was incompetent, was carried out by a person who was not competent to do it, and whose actions were so negligent as to constitute novus actus, is not in dispute."

The application of the Act 19Part 2 of the Act governs the assessment of damages for personal injuries. Section 11A(1) states, in respect of Pt 2 of the Act: "(1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this part by s 3B". 20Section 3B(1)(a) of the Act states: "(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person-the whole Act except: (i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and (iii) Part 2A (Special provisions for offenders in custody)" 21The plaintiff submitted that s 3B(1)(a) applied and that the provisions of Pt 2 were excluded and the damages fell to be determined under the common law. The defendant contended s 3B(1)(a) did not apply and that damages were to be assessed under Pt 2 of the Act. 22The issue, as debated between the parties, was, in essence, whether the defendant performed the procedures on the plaintiff in the genuine, but erroneous, belief held at the time, that the procedures were reasonably necessary to treat the plaintiff's condition or whether the defendant deliberately performed damaging procedures on healthy teeth solely for financial gain and fraudulently represented to the plaintiff that the procedures were reasonably necessary in order to obtain his consent to them. If the latter, the plaintiff's consent was vitiated by the defendant's fraud and the requirements of s 3B were met. 23Senior counsel for the plaintiff accepted that the plaintiff bore the legal onus of establishing that s 3B(1)(a) had application. He also accepted that the admissions secured from the defendant did not run so far as the ultimate question of intent or the ultimate question of fraud. Nevertheless he submitted the findings sought by the plaintiff should be drawn primarily as: (a) the defendant admitted that none of the procedures were reasonably necessary; (b) the defendant failed to give evidence even though he was at court during the hearing and could have given relevant evidence (the principle in Jones v Dunkel (1959) 101 CLR 298); (c) the extent of the procedures performed was such that the defendant must have known that they were unnecessary; (d) Dr Howe's opinion that the defendant's treatment was "obviously unnecessary". 24The plaintiff also relied upon the decision of the Queens Bench Division in Appleton v Garrett [1997] 8 MedLR 75 in which Mr Justice Dyson drew an inference that a dental practitioner had undertaken unnecessary procedures for financial gain. 25The defendant's contention was that although he admitted he now accepted the procedures performed by him were not reasonably necessary, it was not established that at the time of performing the procedures he did not believe the procedures were reasonably necessary or that he intended to cause injury to the plaintiff. As senior counsel for the defendant submitted: "...On the admissions there is no basis for describing the facts as Dr Phung intended to cause injury. The plaintiff went to him to have his teeth fixed. There is no indication that Dr Phung set out to hurt him deliberately. There is evidence and agreement, of course, that Dr Phung's treatment was hopeless... Even if there was an intentional act, which of course there was, it was not with the intention of causing injury; it was with the intention of fixing the plaintiff's teeth." 26Matters relevant to the defendant's situation were as follows: (a) the defendant in his report dated 19 July 2002 expressed the opinion that his treatment was necessary in order to save the teeth; (b) the principle in Jones v Dunkel is that the court may, not must, draw an inference that uncalled evidence would not have assisted the defendant's case and may the more readily draw an inference fairly to be drawn from the other evidence. However, the defendant's unexplained failure to give evidence does not permit an inference that the untendered evidence would in fact have been damaging to the defendant. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference; (c) the extent of the procedures performed was likely to have drawn attention to his treatment, particularly as a workers' compensation insurer was involved. This would create a risk of any fraud on his part being discovered. That factor would lessen the likelihood that the defendant would deliberately have done unnecessary work; (d) Dr Howe's opinion was that of a specialist. It does not establish the defendant's state of mind at the time; (e) Appleton v Garrett is not a binding decision and is distinguishable. In that case the dentist embarked upon a large scale course of fraudulent conduct in which he performed procedures on the healthy teeth of young persons. Some 80 persons brought proceedings against the dentist claiming to have been the victims of such a fraud, including eight whose claims were before the court in Appleton v Garrett . Not surprisingly, the court considered the scale of the unnecessary treatment was so great that it must have been obvious to the defendant in that case that the procedures were unnecessary. In the present case, there was no allegation that the defendant had provided unnecessary treatment to any other patient; (f) section 140 of the Evidence Act 1995 provides: "(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged." 27In Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170, a decision on the common law but applicable to s 140, the High Court held: "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." 28The allegation against the defendant is an allegation of fraud. The plaintiff has the onus of proof. A finding that the defendant had been guilty of such conduct should not be lightly made. 29The defendant's treatment was admittedly incompetent. However, in my opinion, it has not been established, on the balance of probability, that the defendant's involvement was dishonest and fraudulent rather than simply incompetent. In my opinion the onus has not been discharged. I find that it has not been established that s 3B(1)(a) has application. Accordingly, the damages are to be assessed under the Act. No claim for exemplary damages is available.

Background - general damages 30The plaintiff is a single man, born in February 1969. 31He gave evidence that prior to the injury on 19 December 2001 he had no problems with his teeth, gums or jaw and had no fillings. No evidence was called to the contrary. The defendant, in his report dated 19 July 2002, said "There were no pre-existing conditions as this injury is the cause of the present condition." 32The procedures performed by the defendant subjected the plaintiff to considerable inconvenience, apprehension and pain. They resulted in malocclusion of the jaw and the crowns and bridges were so badly constructed that they harboured food and other debris which caused the plaintiff mouth infections. All of the procedures required redoing. 33As a result of the defendant's treatment, the plaintiff suffered pain in the teeth, jaw, neck and shoulders. He suffered headaches, his sleep was affected and he was restricted to eating soft foods in the main. 34These problems have been ameliorated by remedial treatment which he has undergone. That treatment was as follows: (a) In September 2003 Dr Peppitt instituted occlusional splint therapy aimed at relaxing the muscles, unloading the joints and establishing a comfortable jaw position. This treatment was reported to have greatly reduced the plaintiff's myofascial pain and joint discomfort; (b) In 2005/2006 each of the root canals were redone. These procedures were performed by drilling through the crowns of each tooth. The remedial work was performed by Dr Nerwich. It was painful and involved some fifty consultations with Dr Nerwich. However as Dr Peppitt reported (report 20 June 2006) the plaintiff "has had all root canal therapies redone...This has reduced his pain situation dramatically however the deficient crown and bridgework will now need to be replaced"; (c) In November 2010 Dr Lazaris removed four of the crowns and replaced them with temporary crowns. This was done in order to reduce pain of which the plaintiff was complaining. The procedure afforded considerable relief; (d) Dr Lazaris in 2010 performed two occlusal equilibration procedures adjusting the plaintiff's bite. This afforded the plaintiff instant relief and he felt a lot more comfortable when eating. 35The plaintiff continues to complain of headaches, neck aches and a "bit of depression". 36It will be necessary for the plaintiff to undergo extensive future dental treatment, the nature of which is agreed by the parties and is outlined in the schedule of future out of pocket expenses referred to herein. The performance of this treatment will be disruptive of the plaintiff's life and involve him in inconvenience and some pain. 37The plaintiff was concerned and apprehensive about his condition. He said that in 2006 he felt really depressed. He saw his general practitioner, Dr Talty, about this and also undertook some telephone counselling. He did not consult any psychiatrist in this regard. His outlook improved markedly when he moved to country New South Wales in 2006. 38The plaintiff was examined for the purposes of these proceedings by psychiatrists Dr Westmore for the plaintiff and Dr Lovric for the defendant. The examination by each occurred in 2010. Dr Westmore reported: "His affect and mood were appropriate, he was not suffering from a major depressive disorder. No psychotic symptoms were identified. He was alert and attentive." Dr Westmore diagnosed an adjustment disorder with depressed and irritable mood. 39On examination Dr Lovric noted that the plaintiff did not appear pervasively depressed, there was no evidence of a psychosis and no psychomotor changes. He was cognitively intact. Dr Lovric diagnosed an adjustment disorder with depressed mood which was in partial remission and which was likely to resolve completely as his pain is better managed and his legal claims are resolved. 40She noted that he lived alone in a small country town on a large property owned by a friend. He pays minimal rent and tends a one acre vegetable garden, assists local friends with their properties, goes fishing, attends local gatherings and drinks with friends. He is currently on unemployment benefits and believes that if awarded compensation he will likely either buy his own property or establish his own business and buy a house. 41The plaintiff suffers from auxiliary sinusitis for which he has been treated by Dr Lyoff. There is no evidence that this condition was caused by the dental treatment although it would have exacerbated the plaintiff's pain in the facial area. He is undergoing treatment for the sinusitis. The plaintiff is fit and well save for the sequelae of the dental procedures and the sinusitis.

Background - economic loss 42The plaintiff attended high school to Year 10 and obtained the School Certificate. Thereafter he was variously employed as a general hand, storeman, sales consultant and bottle shop employee. He took a year off to "go fishing" and during that period lived at Erowal Bay, where he did gardening and lawn mowing and the like from time to time which supplemented unemployment benefits. In mid-2001 he returned to Sydney and commenced casual work with the employer for whom he was working when injured. His employment as a trainee became permanent on 1 November 2001. During his traineeship he successfully completed a number of short courses. 43The plaintiff returned to work after the Christmas shutdown. He worked up to the date he first consulted the defendant and thereafter had an extended period off work. He returned to work before October 2002. He considered that he could not perform his duties properly as he was in pain, tired and was taking Panadeine. He thought he was unsafe at work but he tried to perform his duties. He continued to consult the defendant during this period. On 4 October 2002 his employment was terminated, the reason given being unsafe work practices. The plaintiff has not engaged in paid employment since that date nor has he sought such employment. 44The plaintiff moved from Sydney to Wadesville near Kyogle, New South Wales in 2006. He remained there until July 2010 when he moved to Cawongla, 30 kilometres north of Lismore. 45He told Dr Westmore that he had not worked over the last few years because of headaches and pains; he feels he would not be able to attend work regularly; he wants to return to work; there were jobs available such as fencing, tree lopping and wood carting. There was evidence in the reports of the defendant, Dr Howe and Dr Peppit, that the plaintiff was fit to work from a dental perspective. Dr Westmore considered the plaintiff was probably fit for work from a psychiatric perspective but would expect that there might be days when his mood would be depressed, he might be irritable due to pain and on those occasions his attendance at work might be erratic. Also on those occasions he might interact poorly with colleagues, clients and superiors in the workplace. That might impact adversely on his employment in the medium to long term. 46The plaintiff told Dr Lovric that he intended to remain up the coast, that he had plans when the case was over to have his teeth repaired, to buy a house and that he would probably start a business either an aquarium or fencing business, and he would like to own some cattle and was currently watching the cattle on the adjoining property for the purpose of learning how to run a farm. Dr Lovric considered that the plaintiff's remaining psychiatric problems were likely to resolve completely. 47The plaintiff gave evidence that but for his dental and related problems he would have still been in Sydney employed by the same employer as at the time of injury as it had been his intention to continue to work as an arborist indefinitely as he enjoyed the job thoroughly. 48Current comparable earnings were agreed by the parties at $980 nett per week and $1247 gross per week.

Non economic loss 49The Act imposed a cap of $500,500 for non economic loss. That sum may be awarded only in a most extreme case. The defendant submitted that the appropriate assessment was $200,000. 50The plaintiff had an initial period of significant pain, concern and disruption of his life from January 2002 to 2006. Thereafter, by reason of remedial treatment and his move to the country, he has greatly improved both physically and mentally. He faces additional disruption of his life with the need for further dental intervention. This will occasion him, in all probability, some degree of pain from time to time. However, he is able to, and will continue to, carry on a normal life and engage in normal activities. He has no discernible scars or disfigurement and his teeth will be aesthetically satisfactory once the remainder of the new crowns are in place. 51I assess non-economic loss at 55 percent of a most extreme case which, on the tables, equates to $275,500. 52No interest is recoverable under the Act for non-economic loss - s 18.

Past economic loss 53The damages for past loss of wages are agreed at $271,136.00. Interest thereon is agreed at $122,011. 54Lost superannuation is agreed at $40,154 and interest thereon is agreed at $18,069.

Impairment of future earning capacity 55The defendant submitted the appropriate assessment would be "a couple of years wage loss" plus a buffer of $50,000. 56It was submitted on the plaintiff's behalf that (a) He is not going to be able to work while he is having his crowns redone. He will have to be off work regularly to have it done. All the implants are not going to be required at once. There is going to be an ongoing process of work to be done over the next approximately three years. (b) This man will be 45 in a couple of years time. He has no skills. On the path that he was following to develop skills, as he said yesterday - he was not challenged on this - by now he would have expected to be in a supervisory role in the arboreal field. He has had all that taken away from him. So, he now has to go into the workforce, having been out of it, by that stage, for 11 or 12 years, at the age of 45, with no skills, no training, no qualifications. The likelihood of him finding any serious sort of job is very low. (c) This man is going to be a disaster when he hits the open labour market. He needs to be compensated for that. We suggest $600 nett a week. That allows him the residual capacity, the residual consistently exercisable capacity, of $380 nett a week. For a man in this plaintiff's position, that is a significant concession, because, in the real world, it is unlikely that he will be able to obtain secure, continuous employment, earning $380 nett a week. 57The plaintiff's work capacity will be significantly impacted by the need for dental treatment over the next two years, particularly as he will presumably find it necessary to travel from country New South Wales to Sydney for such treatment. The defendant conceded it would be reasonable to allow the plaintiff a further two years of full wage loss in this regard. 58However, the plaintiff should then be fit for full time work on a generally regular basis. The calculation of the damages for impairment of future earning capacity is rendered difficult by reason of the uncertainties which surround the plaintiff's working future. Factors to be taken into account include the possibility that, uninjured, the plaintiff may not have continued in his pre-injury employment (he had only been employed by that employer for a short period and had not completed his traineeship. His employment was terminated rather than seeking to continue to accommodate him), his past work history, the likelihood he will obtain employment, the possibility he may commence his own business, the impact on his employment by disruption of his employment caused by future dental treatment, the possibility his pre-injury employer may have continued to employ him as well as the usual vicissitudes. 59In my opinion the assessment should be by way of a buffer which includes an allowance for future lost superannuation and two years for full wage loss. I assess damages under this heading at $350,000.

Past out of pocket expenses 60It was common ground that the plaintiff was not entitled to recover damages for past out of pocket expenses paid by the workers compensation insurer. 61As a result the only claim made for past out of pocket expenses was in respect of consultations with the plaintiff's one time general practitioners, Dr Talty and Dr Brown, and for two x-rays taken in 2002 by Dr Basham. The total claim for past out of pocket expenses was $373.20. There was evidence the plaintiff consulted Dr Talty and Dr Brown in respect of the consequences of the dental treatment. Dr Basham was paid by the plaintiff according to the Medicare printout. Dr Howe (report 12/8/08) referred to Dr Basham in the context of the plaintiff's dental treatment. Accordingly, I allow this claim at $373.20.

Future out of pocket expenses 62The parties reached agreement on a schedule of future out of pocket expenses subject to two issues. The first of those issues was whether the post and core restoration of 28 teeth and the replacement of the crowns for such teeth required replacement at intervals of 10 or 12 years. I was required to choose between those two alternatives. The alternatives were posed because Dr Howe had reported that the appropriate replacement intervals were seven to ten years, Dr Peppitt 10 to 15 years and Dr Roessler had stated that replacement may not be required but that, if it was, 15 years would be generous. 63Having regard to this evidence I consider 12 years would be an appropriate interval in the case of both post and core restoration and the provision of crowns. 64The other issue in respect of future out of pocket expenses was the claim for accommodation and transport for treatment. In regard to this claim the plaintiff submitted that the assessment contained in para C of the schedule was appropriate as: "In relation to the accommodation and transport expenses, we thought long and hard about how to put that up. We thought perhaps come down and stay in a hotel at $200.00 or $300.00 a night and have flights down and back. The plaintiff's evidence, unchallenged, was that he would fly from Lismore down and back again and would stay in a motel. When we did that and approached it on the basis that it would be an annual occurring expense, rather than following the initial plan of treatment and then the recurrence that your Honour will find in relation to crowns and what have you, it worked out to be a lot more. What we have done in this scenario is we have said, if he comes down for a block of time to have all of it done at once, which is unrealistic optimistic from the defendant's point of view, he can rent a flat or something for 6 months and it will be a lot cheaper than staying in an hotel. If you were to take the recurring approach that I have identified the lump sum comes out at something like $160,000.00. So, the approach we have propounded in the schedule of future treatment expenses is a fairly modest and conservative one. It is not, as my learned friend submitted to your Honour, $14,000.00 a year. It is $14,000.00 when each of these courses of treatment is required. If you were to average it out, it is about $1,400.00 a year. That perhaps puts it in some better perspective. My learned friend does not understand it, it is $14,000.00 recurring every 10 years, which, if you break it down to an annual amount is $1,400.00 per year except for the first couple of years where there is an extensive restorative TBJ process to be undertaken. That is the way we put that aspect of the claim." 65It is apparent that the plaintiff will require transportation to Sydney and accommodation when he undergoes treatment. There are a number of ways in which this may be achieved. The plaintiff's assessment seems to me a reasonable approach and I allow it, save for deleting item C(c) as two years would appear reasonable for the initial extensive treatment. 66Accordingly the claim for future out of pocket expenses is allowed in the terms of the schedule which is set out hereunder: " SCHEDULE OF FUTURE OUT OF POCKET EXPENSES A. Future treatment:

1. Post and core restoration of 28 teeth at $300 - $1,000 ($650 average) per tooth: (a) now = $18,200; (b) in 12.5 years, deferred on 5% tables = $9,901; (c) in 25 years, deferred on 5% tables = $5,369; (d) in 37.5 years, deferred on 5% tables = $2,930.
2. Porcelain bonded to gold crowns for 28 teeth at $3,000 per tooth: (a) now = $84,000; (b) in 12.5 years, deferred on 5% tables = $45,696; (c) in 25 years, deferred on 5% tables = $24,780; (d) in 37.5 years, deferred on 5% tables = $13,524.
3. Temporo-mandibular joint dysfunction management and treatment : $2,500
4. Titanium implant into bone with a superstructure of porcelain bonded to gold alloy crown to replace a likely 9 lost teeth at $8,000 per tooth, deferred 15 years on the 5% tables = $34,632. B. Periodontal crown lengthening surgery (per Dr Roessler) = $5,000. C. Accommodation and transport for treatment for six months in Sydney at $500 per week for accommodation and $1,000 for transport = (a) now = $14,000; (b) in 1 year, deferred on 5% tables = $13,328; [(c) in 2 years, deferred on 5% tables = $12,698 ;] (d) in 12.5 years, deferred on 5% tables = $7,616; (e) in 25 years, deferred on 5% tables = $4,130; (f) in 37.5 years, deferred on 5% tables = $2,234. D. Periodontal or other specialist dental review three times per annum at $250 per consultation differential from the cost of a general dental surgeon = $13,532. E. Allowance for consultations with general practitioner, neurologist, psychologist, medication, etc = $10,000." 67The total amount allowed for this head of damage is $311,372. 68An interim payment was made by the defendant to the plaintiff in December 2010. The defendant is entitled to have credit in respect of that payment and any other payments of a like kind.

Conclusion 69In my opinion, there should be a judgment for the plaintiff in the sum of $1,388,615.20, calculated as follows: Non economic loss $275,500.00 Past economic loss $271,136.00 Interest on past economic loss $122,011.00 Past superannuation $40,154.00 Interest on past superannuation $18,069.00 Loss of future earning capacity $350,000.00 Past out of pocket expenses $373.20 Future out of pocket expenses $311,372.00

Orders 70The orders of the Court are:

1. Judgment for the plaintiff in the sum of $1,388,615.20.
2. The defendant to pay the plaintiff's costs.

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: 30 June 2011