JUNG v SON

1. whether the trial judge misdirected himself on the issue of causation;

2. whether a written admission made by the defendant was wrongfully rejected by reason of s84 of the Evidence Act 1995 on the basis that it was influenced by 'degrading conduct';

3. whether the judge had given sufficient reasons for his decision.

The appellant submits that a substantial wrong or miscarriage has occurred and seeks a new trial pursuant to Pt51, r23 of the Supreme Court Rules.

1. The admission was not influenced by degrading conduct and consequently the document was not rendered inadmissible by reason of s84 of the Evidence Act. Nevertheless, no substantial wrong or miscarriage resulted from the rejection of the evidence.

2. The failure of the judge to give reasons for his conclusions on causation was a serious error of law. While a judge is not required to state reasons for every aspect of the case, the reasons must be sufficient to satisfy the requirements of Pettit v Dunkley. The error is such that a substantial wrong or miscarriage has been occasioned.

Pettit v Dunkley [1971] 1 NSWLR 376 Lown v Woods (Unreported Court of Appeal, 5 February 1996) March v Stramare (1990-1991) 171 CLR 506 applied

The appellant (Kyung Jin Jung) claimed damages for negligence from the respondent (Ilyong Son) a dental practitioner, arising from the removal of a wisdom tooth on 22 November 1993. Following a trial in the District Court, which lasted 7 days, Hughes ADCJ entered a verdict for the defendant dentist. The notice of grounds of appeal is extensive but the hearing of the appeal revolved principally around the following issues. The first was whether the trial judge had misdirected himself on the issue of causation. Second, whether his Honour was right to reject a written admission made by the respondent by reason of s84 of the Evidence Act 1995. A number of factual findings are also challenged as not open on the evidence. A new trial is sought pursuant to PtS1 123 of the Supreme Court Rules, the appellant submitting that a substantial wrong or miscarriage has been occasioned.

In order to understand the issues raised in the appeal it is necessary to examine the judgment, which was delivered on the day following addresses by counsel. It runs to six pages. The first page records material which is mostly unnecessary and irrelevant to the issue of liability. This was relied on to ground an allegation of bias which was, correctly in my view, not pursued by counsel for the appellant. On p2 of the judgment his Honour notes a number of essential facts which are not in dispute. The trial judge then records that the respondent extracted the appellant's wisdom tooth having failed to take an x-ray beforehand. Indeed, this was common ground. His Honour observed that Dr Son should have taken an x-ray. Indeed, the respondent himself agreed that he should have taken a pre-operative x-ray. The respondent removed the tooth with an instrument known as a Coupland elevator or gouge. The judge, having found that the description of the tooth in question was as described by Dr Son in Ex 9 figure 2, stated that three experts, Dr Peppitt, Professor Norman and Dr Kinross 'all agreed that it was appropriate that Dr Son would extract that tooth using a Coupland elevator and in the manner that he did so'. This finding is challenged.

His Honour then proceeded to make a credit finding that he accepted the respondent's description of the events of 22 November 1993 as accurate and, where it conflicted with Mrs Jung's, he preferred the former.

After recording that he had carefully examined the medical evidence, the judge continued:

Having found then that Dr Son's extraction of the three eight tooth was appropriate, the next question I have to ask myself then was the pain that was suffered by Mrs Jung any more than could be expected from a person who had that tooth extracted? I am not satisfied, on the evidence, that Mrs Jung suffered any more pain or discomfort or injury than a person would have done having that tooth extracted (that is the three eight molar tooth extracted) by a reasonable and competent dentist. Therefore, it follows I find that Dr Son's extraction was competently done and what could be expected by a reasonable dentist and there was no negligence in the extraction of the tooth. [AB 4 - 5] Having reached this conclusion, his Honour then asked himself if the failure to take an x-ray was sufficient proof of negligence. His Honour made reference to a submission of plaintiff's counsel that the failure (to x-ray) materially increased the risk of injury. The judge said:

I am not persuaded by Mr Anderson's submission that the failure to take an x-ray materially increased the risk of any sequelae in this particular case. [AB 6.1]

In fact, as I have earlier referred to in my findings, I found that the sequelae from this extraction was no more - that is to say, as Dr Baetz put it, the dental consequences of the sequelae of the extraction was no more than could be expected from a regular extraction,... [AB 6.2]

This finding of fact is also challenged as not open on the evidence. After reference to Bennett v Minister for Community Welfare (1992) 176 CLR 408 on approaching questions of causation by applying common sense and experience, the trial judge concluded that there was no negligence by Dr Son.

It may be recorded that for a trial which included six days of evidence, much of it of an expert nature involving lengthy and probing cross-examination, his Honour had remarkably little to say about the evidence, including any material

conflicts between the expert witnesses. The reasoning is sparse, to say the least. I will have something more to say about this shortly.

The appellant sought to tender two documents which she claimed included admissions by Dr Son. They were both written out by the respondent on or about 8 April 1994, and signed by him, one in Korean and the other in English. The translation from Korean includes the statement:

I should have x-rayed her tooth to locate the root of the tooth, but I pulled it out without doing that. Because I did not know the direction of the tooth root, I had the patient open her mouth excessively widely and excavated her gums several times.... As a dentist I also admit that it was my mistake.

The document finishes with an acknowledgment of responsibility and promise of compensation if the appellant was not completely cured by the end of April 1994.

The other statement, in English, contains the following:

As I was taking the tooth I did not take any x-rays which had caused problems with the patient by opening her mouth to extend which had caused her lot of pain.

Again, the statement concludes with an acceptance of responsibility.

A voir dire took place on the admissibility of the documents. In rejecting the tender his Honour said that Dr Son 'was apprehensive and influenced by the degrading conduct that he was concerned that the plaintiff was going to make a scene in his surgery and embarrass him and other patients'. He concluded:

... I am satisfied that the evidence should be excluded because... Dr Son's admission was influenced by degrading conduct or a threat of conduct of that kind [under s84 of the Evidence Act].

(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:

(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or

For my part, I cannot appreciate how the event described by Dr Son could conceivably amount to 'degrading conduct' or its threat, or that the respondent's writing of the documents was influenced by such conduct, assuming it qualified as degrading.

I mention that it is not suggested that the admission should have been rejected on the basis of any of the other indicia in the section - violent, oppressive or inhuman conduct. The highest that the evidence came, so far as I can glean from the rather garbled version of the respondent, was that if he didn't write out the admission the appellant would not leave the surgery, would scream and possibly make a scene which could be embarrassing for him and his patients. I do not see how this could possibly amount to degrading conduct contemplated by s84. Indeed, it seems that the principal reason the respondent wrote out the documents was to get rid of the appellant from his surgery so he could get back to work.

In my opinion, the document was not rendered inadmissible by reason of s84 of the Evidence Act and no other basis for its rejection is argued by counsel for the respondent.

The appellant submits that the documents were of such importance as to be likely to have had a significant impact on the case. This is not only by reason of the admissions contained therein but in terms of the examination of expert

witnesses and also the respondent on his credit. On the other hand, counsel for the respondent submits that, if admitted, the documents would have made no difference to the result.

The question from the court is whether the rejection of the evidence has caused a substantial wrong or miscarriage. Although I concede that minds might vary, I do not think that it would. No issue existed regarding the failure to take an x-ray. There was more than ample expert evidence of this. Dr Son admitted so much in pre trial documents and readily agreed in his oral evidence at the trial. There is no reason why the other matters recited in the document could not be the subject of oral examination of witnesses, including the respondent. Indeed, this clearly occurred. It is difficult to know how the documents might have affected Dr Son's credit. In short, it is likely that the documents, including their purported acceptance of responsibility, would have been accorded limited weight in all the circumstances. Their reliability as an admission would have been hotly contested. I am not persuaded that a substantial wrong or miscarriage has been occasioned by the rejection.

The starting point on this issue is the uncontroverted and unanimous expert opinion that pre-operative x-rays for removal of wisdom teeth are common practice. Indeed, except in emergencies or isolated locations, virtually mandatory. Dr Son accepts this. He had x-ray apparatus available in his surgery but chose not to use it. Indeed, he said that the appellant was the first (and last) time that he did not x-ray a wisdom tooth before extraction.

The evidence on the need for a pre-operative x-ray was given by Dr Baetz, Professor Norman, Dr Vickers, Dr Kinross and Dr Peppitt. The experts gave a number of reasons for this established practice. In summary these include the following:

¢ If an x-ray had been taken Dr Son may well have referred the appellant to a specialist oral surgeon. (See Dr Baetz in his reports and oral evidence, Black AB 83)

¢ The reason for the radiograph is to view the position, angulation, shape and number of tooth roots, as well as their relationship with the alveolar nerve. It provides knowledge as to whether the extraction is likely to be unduly difficult and if so, to refer the patient to a specialist. (See Dr Baetz, reports and oral evidence, Black AB 183, 104, also Dr Peppitt, Black AB 237 and Professor Norman, Black AB 260 - 261)

¢ To extract a tooth without radiographic assessment supplementing the clinical examination and history is a departure from accepted practice. X-rays are invaluable aid because they permit intelligent planning of the operation. This results in much less trauma to the tissues, reduced operating time, less chance of infection, improved healing and little pain. (See Professor Norman and standard texts Archer and Killey, Blue AB 63 - 67, 74 - 75, 81, Black 261). See also Dr Vickers, Black AB 145 - 147 and Dr Kinross, Black AB 385, 404.

¢ If an x-ray had been taken and disclosed that the root structure had 'a bit of a kink' and was 'locked into the bone', proper measures such as sectioning the roots could have been taken to reduce the trauma. (See Dr Baetz and also Dr Vickers, Blue AB 95, Black 147)

« Failure to take an x-ray may expose a patient to the risk of excessive trauma, a longer operative procedure and greater pain.

The admitted failure to take a pre-operative x-ray has to be understood in the light of Dr Son's account of the events of 22 November 1993. From two documents entitled 'List of Assumptions' compiled by the respondent for his solicitors, the following is noted. The extraction took 30 minutes including three attempts and two injections of anaesthetic. The extraction was difficult. The patient was uncooperative. On extraction, two roots were noted to be curved and fused at the apex. There was a gap in the apical third of the root. Patient had small mouth. Patient advised by Dr Son that 'roots have bit of a kink in them. It has caused some locking. It was for that reason that it was difficult to extract. Tooth slightly bigger than normally expected'. (Blue AB 124 and 170)

On the issue of negligence, other questions were canvassed in the evidence. One was that when the respondent encountered difficulties in the extraction, as he agrees he did, whether he should have stopped and taken an x-ray before proceeding further, or, refer the appellant to a specialist. In relation to this matter, Dr Vickers and Dr Baetz were both adamant that the respondent should have stopped and taken an x-ray. (See Dr Baetz, Blue AB 35 and Dr Vickers, Black 159 - 163). His Honour did not deal with these issues in his judgment.

Another issue was, assuming a pre-operative x-ray had been taken, would it have made any difference? Would or should Dr Son have referred the patient to an oral surgeon or would he have approached the procedure in a different way? Would this have made any difference? Involved in some of these questions was whether Dr Son used the Coupland elevator in a correct fashion, or should not have used that instrument at all. Again, on these issues there was a plethora of expert evidence, much of it favouring the appellant's case. (For example, Dr Baetz Blue AB 35 and Professor Norman, Blue AB 76-78, Black 281, 282). Again, most of these matters were inadequately dealt with by the trial judge or simply not mentioned at all.

One view of the matter open to the trial judge, but not directly dealt with by him, was whether applying a common sense approach to causation (March v Stramare (1990 - 1991) 171 CLR 506 at 514 - 515 (Mason CJ) the failure to take an x-ray itself, materially contributed to or increased the risk of injury. See also Chappel v Hart (1998) 156 ALR 517 at 521, 534 and 550 and the cases cited in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 345.

There was also evidence before the District Court of the increased risk of trauma by proceeding to extract the appellant's wisdom tooth without benefit of an x-ray and continuing to proceed after difficulties were encountered by using a Coupland elevator, rather than proceed by root section. (See Professor Norman, Blue AB 67, 76, 78, Black 281-282 and Dr Baetz, Black AB 85). Again, this issue was not canvassed in the judgment.

Professor Norman and Dr Baetz were both of the view that excessive force had been used by Dr Son which resulted in trauma and injury to the appellant. Indeed, Dr Baetz, found objective evidence of muscle bruising some eight months after the operation.

It is correct to observe that there was conflict on the expert evidence about whether, on a series of specific assumptions, the taking of an x-ray would have made any difference to the outcome. In this respect, Dr Kinross appears to disagree with the appellant's expert witnesses. Unfortunately, like virtually all of the medical issues in the case, the judge did not analyse the evidence and its conflicts. This means that the court does not really know what expert evidence was accepted or rejected. Certainly, we have some findings but no analysis of the relevant evidence or reasoning. In any event, some of the findings of fact do not

appear to be borne out by the evidence. For example, it does a disservice to Professor Norman to say that he agreed that it was appropriate for Dr Son to extract the tooth using a Coupland elevator and in the manner that he did. A fair reading of the witnesses' evidence leads to the opposite conclusion.

In fact, the only occasion in which the judge sought to bolster his finding of no material increase in risk by reason of the failure to take an x-ray, by specific reference to the evidence, he appears to be in error. He says that Dr Baetz said that the dental consequences of the sequelae of the extraction was no more than could be expected from a regular extraction. So far as I can ascertain from the transcript of evidence, Dr Baetz said nothing of the kind. This is a serious error. The failure to come to grips with the medical evidence by the trial judge far transcends the situation faced by the court in Lowns v Woods, unreported, Court of Appeal, 5 February 1996 p7 - p8.

We are left with a situation of admitted and found negligence in relation to the failure to take an x-ray. But there is no, or virtually no analysis in the judgment of the evidence concerning the implications of this failure. No reasons are given for the conclusion that there was no increased risk of injury. While a judge does not have to state reasons for every aspect of the case, his reasons must be sufficient to satisfy the requirements of Pettit v Dunkley [1971] 1 NSWLR 376. The reasons must be sufficient to enable an appellate tribunal to gain a proper understanding of the basis of the verdict. Not to do so is an error of law (Asprey JA at 382 and Moffitt JA at 388). Failure to give reasons also makes it impossible for an appellate tribunal to give effect to a plaintiffs right of appeal. Issues critical to the case, as these were, must be dealt with by reasons (Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728). It is also clear that the credibility finding regarding the respondent did not relieve his Honour from the need to deal with the expert evidence (including any material conflicts) in a proper way.

The errors must, in my opinion, lead to a retrial because they are such as must have occasioned a substantial wrong or miscarriage of justice to the appellant. The should be a new trial on liability and damages.

The verdict for the defendant should be set aside and an order for a new trial substituted. The costs of the first trial should abide the result of the fresh trial. The respondent should pay the appellant's costs of the appeal but receive a Suitors' Fund Act 1951 certificate if otherwise entitled.

1. Verdict for the defendant set aside and a new trial ordered in substitution thereof.

2. Costs of the trial at first instance to abide the result of the new trial.

3. The respondent to pay the appellant's costs of the appeal and to receive a certificate under the Suitors' Fund Act 1951 if otherwise entitled.

Counsel for the appellant: M C Finnane QC/J Anderson Solicitors for the appellant: Cashman & Partners Counsel for the respondent: C Leahy