Doudar v Al Marrawy

Reply to Appeal

1. The respondent filed a Reply to Appeal on 15 November 2017. The respondent states that the appellant's grounds of appeal are not "true and accurate", that no question of law is raised and that the appeal is simply "a question of facts".

Decision below

1. It is appropriate to set out a summary of the reasons for the Decision.
2. The background to the incident is described by the Tribunal at par [10] of the Decision. The appellant had received dental treatment in Egypt. The treatment relevantly involved the insertion of "abutment" teeth and the insertion of two temporary bridges into his upper mouth. The appellant was given two bridges, and told they would need to be inserted after approximately 12 months. The appellant contacted the respondent to make an appointment to have the bridges inserted. It was when he attended the surgery that the incident occurred.
3. The Tribunal correctly noted at [4] that this was a factual dispute between the parties as to who was responsible for a dental bridge falling out of a surgical pouch. The appellant said the respondent/dentist "grabbed" the pouch from him without warning. The respondent said that the appellant handed the pouch to him, did not tell him that the pouch was open on one side, and that the bridge fell out while the bridge was being handed over.
4. The Tribunal accepted that the respondent glued the breach together, removed the temporary bridges and then inserted the replacement bridges. The respondent told the appellant to be careful when eating, and that the bridges would have to be replaced. For this service the respondent charged the appellant $500.
5. The Tribunal noted at [12] that when the respondent examined the appellant, one of the abutment teeth implants needed to be taken out, and that he informed the appellate of this. The appellant instructed the dentist not to remove the abutment implant, and instructed the respondent to insert the bridges. The respondent told the appellant at the bridges would only be a temporary solution, because the abutment tooth would have to be replaced in any event.
6. The critical components of the reasons of the Decision are as follows: 17. Both the evidence of the applicant and the evidence of the dentist is that the bridge fell out of the pouch after the pouch was either taken by the dentist (on the applicant's evidence); or given to him by the applicant (on the dentist's evidence). Even if the Tribunal accepted that the dentist "grabbed" the surgical pouch with the bridges in them, there is nothing in the brief expert reports of Dr Coleman and Dr Sael to support a conclusion that the dentist should reasonably have acted any differently. The reports of Dr Coleman and Dr Sael do not state that the dentist should reasonably have taken more care. Further, as the applicant had the surgical pouch in his possession since his treatment in Egypt, it can be inferred that he was aware of the condition of the pouch. He could have told the dentist that the pouch was open on one side prior to the dentist taking the pouch (if the Tribunal accepts the evidence of the applicant that the dentist took the pouch from him, rather than the applicant handing the pouch to the dentist), but failed to do so. 18. It is clear from the evidence of both parties that the dentist did not tear the pouch, and the reason the bridge fell out of the pouch was that the pouch was not completely sealed and was open on one side. 19. There is not sufficient evidence for the applicant to prove on the balance of probabilities that the dentist should reasonably have known the pouch was open on one side. This issue is not addressed at all in the expert evidence provided by the applicant. . . .
7. Finally, the Tribunal stated that even if the appellant had proven on the balance of probabilities that the dentist had not provided services with due care and skill, the applicant had not proved the loss caused by the dentist having glued the bridge together and inserting it.

The hearing

1. Both parties relied on documents at the appeal. Helpfully, the appellant provided a transcript of the Tribunal proceedings. In addition, he produced copies of the two expert reports and the other documents such as receipts that were before the Tribunal. He also included a submission (being in the form of a signed statement) of 3 December 2017, and a statutory declaration of 4 December 2017. In his submission, the appellant states that he is seeking a full replacement value for the broken bridge. He claims that it was "total negligence" on the part of the respondent in not examining the bridge "inside his surgry [sic] room over the desk".
2. The respondent produced a short submission dated 2 February 2018. He submits that the appellant has not established any of error of law, and that the appeal should be dismissed. He submits that if the Appeal Panel were to allow the appeal on a question of fact (or of law), then he would seek to rely on the affidavit of a Mr Mahmoud Abbas, whose statement was rejected by the Tribunal. Mr Abbas was another patient of the respondent's, and was present during the events in question.
3. Of particular interest to the Appeal Panel was the package, described in the Tribunal' reasons as the "pouch", in which the appellant produced the bridge to the respondent. This is a Self-Sealing Sterilization Pouch used for holding sterilized items. The pouch is approximately 15 cms long and 5 cm wide. One of the 15cm sides has three staples holding that side of the pouch together. The respondent claims, but the appellant denies, that that was the condition of the pouch at the time of the hearing. The other side of the pouch is unsealed for approximately 12.5cms of its length. Again the respondent claims, and the appellant denies, that that was the condition of the pouch at the time of the hearing.
4. The It appears that the pouch was seen by the Tribunal, as at par [3] the Tribunal refers to a "surgical pouch", and the respondent at 0107.18 states that "the bridge fell out of its pouches because its open like you see, open from the other side". The appellant confirmed that the pouch was available at the hearing, and that the respondent attempted to hand the pouch to the Tribunal at the conclusion of the hearing, but the Tribunal did not accept it.
5. It is impossible for us to determine the precise condition of the pouch at the time of the hearing. However, as we have set out above, at par [18] of the reasons the Tribunal found that the pouch was not completely sealed and was open on one side, and that was the reason the pouch fell out onto the ground.
6. The appellant made oral submissions at the hearing. Essentially, he said that the respondent was negligent as he had caused the bridge to break. He conceded that he had not raised the argument about the respondent opening the pouch in his waiting room, rather than over his desk or surgical table, at the Tribunal hearing. As we explained to the appellant, as a general rule, arguments cannot be raised on appeal if they were not raised at the first hearing: see Drivas v Burrows [2014] NSWCATAP 87 at [30]-[33] and the authorities referred to.
7. The respondent submitted that he had not been negligent, that the pouch was open when the appellant handed it to him, and that the carrying and transfer of the bridges by such means was not a secure one. He showed the Appeal Panel an example of a more secure sealable plastic box in which dental bridges could be carried securely.

Consideration

1. Appeals from a decision of the Consumer and Commercial Division of the Tribunal on a question of law may be brought as of right, that is, without the leave of the Appeal Panel. Appeals on any other ground may be brought only by a grant of leave: see s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act)

Appeals as of right on a question of law

1. Where an appellant is not legally represented, it is appropriate for the Appeal Panel to consider whether the grounds of appeal raise a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. In Prendergast, the Appeal Panel set out a non-exhaustive list of questions of law that might arise from Tribunal decisions. In summary, the questions of law identified are whether there has been a failure to provide proper reasons; whether the Tribunal identified the wrong issue or asked the wrong question; whether a wrong principle of law had been applied; whether there was a failure to afford procedural fairness; whether the Tribunal failed to take into account relevant (that is mandatory) considerations; whether the Tribunal took into account an irrelevant consideration; whether there was no evidence to support a finding of fact; and whether the decision is so unreasonable that no reasonable decision-maker would make it.
2. Mr Doudar has not identified any arguable error of law. We have examined his Notice of Appeal, the documents on which he relies and listened to his oral submissions at the appeal hearing. We have not identified any arguable error of law. Accordingly, in our view, Mr Doudar requires leave to appeal in respect of any other claimed error.

Appeals on other grounds

1. Schedule 4, cl 12 of the Act says that an appeal panel may grant leave only if the appeal panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable (cl 12(1)(a)); or 2. The decision of the Tribunal under appeal was against the weight of evidence (cl 12(1)(b)); or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) (cl 12(1)(c));
2. In relation to the decision not being fair and equitable, the appellant submits: the decision relied on the fact that my abutment not successful]l and therefore therefore even if the breach did not break it would have been replaced this is not true. I had no problems with abutments and it was irrelevant the decision relied on the fact the expert reports did not mention that the dentist should have taken more care in opening the pouch. this is not possible as expert were not present they only told to price the replacement of the broken bridge. (spelling and grammar as in original)
3. In relation to the decision being against the weight of the evidence, the appellant says that he has expert reports that the bridge needed to be replaced due to the breakage. The appellant says that Tribunal should have given more weight to the fact that "the Tribunal did not have solid proof that that pouch was not sealed, and that the expert cannot state the dentist did not use care while opening the pouch as they were not there". The appellant also requests footage from the surgery cameras be made available. As we explained to him, that was a matter which could have been requested previously. The appellant explained that he had not thought there was any need for that evidence as he thought the respondent was negligent.
4. The appellant completed that portion of the Notice of Appeal which indicated that he relied on the ground that significant new evidence was now available that was not reasonably available at the time of the hearing. He stated that he was attaching "the expert report of cost". He stated that he was relying on the fact that the respondent "did not use due diligence during opening the surgical pouch". However, in answer to the question "Why was this evidence . . . not available at the time of the hearing, the appellant states that the evidence "was available". In the circumstances, this submission appears to be misconceived.
5. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel conducted a review of the relevant cases and stated at [77] to [79]: 77 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] HCA 23; (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, 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] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].
6. The Appeal Panel concluded at [84] that: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (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.
7. However, even if an appellant establishes that they may have suffered a substantial miscarriage of justice, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the NCAT Act: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Conclusion

1. Applying these principles, we are of the view that, as correctly identified by the Tribunal, this was a contest between two competing versions of events. The Tribunal preferred the respondent's version. We detect no error in the Tribunal's findings, which we consider were available to it. Nor do we detect any error in the Tribunal's reasoning process. We accept that the Tribunal's finding that the pouch was not completely sealed and was open on one side (par [18]) was available. This is consistent with the respondent telling the appellant at the time that the pouch was open, a matter confirmed by the appellant himself in his evidence at the hearing, when he told the Tribunal that the respondent "started blaming [him as] the bag was not sealed properly" (transcript 38.35).
2. In short, the case argued by the appellant on appeal is no different to what he argued at the Tribunal hearing. We are therefore not 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, in the sense referred to in Collins v Urban at [78] and [79].
3. We have considered all the grounds of appeal advanced by the appellant and his submissions both individually and cumulatively. We do not consider that he has raised an issue of principle, or a question of public importance or matters of administration or policy which might have general application. Nor do we consider that he has established an injustice which is reasonably clear, that the Tribunal made a factual error that was unreasonably arrived at or clearly mistaken, or that the Tribunal went about its 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.

Order

1. For the above reasons, the Appeal Panel orders that: 1. The application for leave to appeal is refused; and 2. The appeal otherwise dismissed.

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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: 19 January 2018