Li v Advanced Health Invest Pty Ltd t/a Mastery Dental Clinic

B. PROCEDURAL HISTORY AND JURISDICTION

1. This application is dated 25 March 2021. It was initially brought by the Applicant against Dr Zhang in her personal capacity. The matter came before the Tribunal for directions on 6 May 2021. On this occasion, the Tribunal set a timetable for the parties to file and service their evidence and identified that the proper Respondent for the purposes of a claim under the Australian Consumer Law (ACL) in this Tribunal was Advanced Health Invest Pty Ltd t/a Mastery Dental Clinic not Dr Zhang.
2. The matter was initially set down for a hearing on 3 September 2021 but this had to be adjourned. The parties had filed further and successive lengthy submissions and evidence in the week prior. Given the complexity and length of the submissions and issues raised more broadly in this matter, the Tribunal deemed an adjournment was appropriate as it would not be procedurally fair for the matter to be heard on that date.
3. The matter was heard on 5 November 2021 by Audio-Visual link due to the ongoing coronavirus pandemic.
4. The Applicant appeared with the support of an interpreter to the extent one was required. He also appeared with his son Mr Michael Li, who both supported his father and made submissions on behalf of the Applicant during the hearing.
5. The Respondent appeared through one of its practitioners Dr Jun Zhang and a support person from the Australian Dental Association, Dr Jane Pinchback.
6. Turning to the issue of jurisdiction, the ACL was incorporated into the law of New South Wales, and as a part of the Fair Trading Act 1987 (NSW) (FTA), by section 28(1) of the FTA.
7. The ACL consists of Schedule 2 of the Competition and Consumer Act 2010 (Cth), and the regulations under section 139G of that Act (FT Act section 27). The ACL applies to create rights at law in consumers that fall within the terms of the ACL including the consumer guarantee provisions in Part 3-2 of the ACL.
8. The ACL creates a cause of action at law and a range of remedies for parties, and although it does not of itself confer any jurisdiction on this Tribunal to hear those actions and provide those remedies, as noted above, section 28 of the FTA incorporates the ACL and provides the Tribunal with the appropriate jurisdiction.
9. For the provisions of the FTA to apply the Tribunal has to be satisfied that the application is a consumer claim for the purposes of the FTA.
10. The Applicant is presumed by section 79H of the FTA to be consumer within the meaning of section 79D.
11. The Respondent is a supplier as defined in section 79D of the Act as it is in the course of carrying on, or purporting to carry on, a business. As is described in Miller's Australian Competition and Consumer Law Annotated, 2020, [CCA.4.520], the notion of 'supply' is the counterpart of 'acquire'. A supply of goods or services must occur as part of a bilateral transaction or dealing under which the other party acquires those goods or services: Cook v Pasminco [2000] FCA 677 cited in Miller's [CCA.4.520]. This occurred in the instant case.
12. The claim arises from the supply of services by the supplier respondent to the consumer applicant and constitutes a claim by the consumer for the payment of a specified sum of money (FTA section 79F). The services to which the claim relates were supplied in NSW (FTA section 79K). The claim was made within the period of time allowed in section 79L of FTA.
13. 12 The claim is otherwise maintainable under the FTA but as such is subject to the Tribunal's monetary jurisdiction which is limited by section 79S of the FTA to making orders for the payment of no more than the prescribed amount. The applicant's claim is within the monetary limits prescribed.
14. I am satisfied that the Applicant is a consumer and that I have jurisdiction to hear and determine the matter under the FTA.

C. CHRONOLOGY OF MATERIAL EVENTS

1. The Applicant attended the Respondent's clinic for a routine dental check-up and clean on 24 November 2018 with Dr Zhang. During this appointment, he was advised tooth number 16 required a crown placement procedure.
2. The Respondent contends that the Applicant was also informed on that date by Dr Zhang that a root canal on tooth 17 would be required. The Applicant strongly disputes this assertion.
3. The Applicant says he returned to the Respondent's clinic on 11 December 2018 to finish the crown placement procedure. Another doctor, Dr Chen, attended to him because Dr Zhang was not available on that date.
4. However, Dr Chen did not wish to continue the Crown procedure that Dr Zhang had started. She advised the Applicant that the Crown procedure could not be completed until a root canal was performed on tooth 17. The Applicant claims that this was the first he had been informed as to the need for a root canal.
5. The Applicant agreed for Dr Chen to commence the root canal procedure but denies being informed of the risks or treatment options before providing his consent, and as such, argues his consent was not informed consent.
6. The root canal procedure undertaken by the Respondent effectively took place over three dates - the first was with Dr Chen on 11 December 2018, the second was with Dr Zhang on 20 December 2018 and the third was with Dr Zhang on 3 January 2019.
7. The root canal procedure with Dr Chen was difficult and painful.
8. The applicant contends that the risks and difficulties of the entire procedure were not discussed with or disclosed to him on any of the three sessions. The Applicant signed a medical consent form after the procedure had taken place.
9. The Respondent contends that the risks were disclosed to the applicant verbally by both Dr Chen and Dr Zhang. The Respondent contends that written consent is not a standard requirement and that verbal discussion of risks is sufficient. The Applicant disputes this and claims no risks were discussed and that his written consent should have been but was not obtained prior to the root canal procedure.
10. The parties do not agree on whether the Applicant was informed that an adverse event has occurred during the root canal procedure during his last appointment on 3 January 2019. The Applicant says he was not, the Respondent says he was. The objective evidence is as follows. 1. The Applicant had a loud disagreement/altercation with Dr Zhang at the Respondent's surgery after the final appointment with the Respondent on 3 January 2019. 2. Although the procedures had been completed by the Respondent, there is a note in the file dated 3 January 2019 that a specialist referral letter was provided to the Applicant for him to see an endodontist for further review. 3. A referral was provided by Dr Zhang for the Applicant to see an endodontist specialist on 5 January 2019. 4. On 21 January 2019, the Applicant went to get a second opinion from another dentist, Dr Leung. The Applicant claims this was the first time he was advised that the medical file had separated. Dr Leung referred the applicant to a specialist Dr Yeng to remedy the adverse event. 5. On 8 February 2019, the applicant consulted with Dr Yeng and remedial treatment was carried out in March 2019. The fractured file could not be removed so a bypass was carried out.
11. The Respondent contacted the Applicant's wife to obtain payment for the outstanding money owed by the Applicant for the crown procedure which was completed on 3 January 2019.
12. To date, the Applicant has not paid and refuses to pay that amount. The Applicant says he was not told the crown placement procedure was completed on 3 January 2019, he thought it was just the final instalment in the root canal procedure only. The Respondent is owed $852 for the placement of the crown on tooth 16 and this remains outstanding. The Applicant asserts that there was no financial plan or cost breakdown more broadly across all procedures and he should not be required to pay this sum. This is not the Respondent's application and I make no findings on the merits of the amount The Respondent says it is still owed in respect of tooth 16.

D. APPLICANT'S POSITION

1. The Applicant's submission asks the Tribunal to consider the strength of the objective evidence and the gaps or lack of evidence filed by the Respondent in relation to certain matters.
2. The Applicant contends that there are five bases for his assertion that the Respondent did not comply with requirement to provide services consistent with section 60 of the ACL in respect of all work carried out on both teeth. They are as follows: 1. There was a lack of informed financial consent in that Dr Zhang did not obtain the Applicant's consent to fees before undertaking the treatments. The Applicant contends that it was impossible for him to understand the scope of the cost, consider alternative treatments that might be cheaper or consider alternative providers that might have been cheaper. 2. There was a lack of informed medical consent in that Dr Zhang did not obtain written consent to the risks associated with the Root Canal treatment. The Applicant contends that this made it impossible for him to weigh the risks of such a procedure and to decide whether he needed the services of a specialist. 3. There was no medical treatment plan in the form of a full periodontal chart of both teeth. 4. An adverse event occurred, namely the separation of the medical file. Whilst prognosis would be deemed good of the fractured file could be removed, the remediating doctor could not remove it so it had to be bypassed which is less favourable. 5. Dr Zhang delayed in communicating the separation in the medical file in the canal and did not provide a plan to remedy the issue. A similar issue is raised in relation to the failure to communicate the completion of the crown placement work. 6. The arguments/alterations that took place on 3 January 2019 related to dissatisfaction with the financial aspects and demeanour of Dr Zhang. The applicant denies being told about any referral to a specialist on 3 January 2019.

E. RESPONDENT'S POSITION

1. The Respondent through Dr Zhang contends that: 1. The procedures in respect of tooth 16 Crown placement and tooth 17 root canal were separate and unrelated procedures. Whatever adverse event may have occurred in respect of the root canal procedure to tooth 17, these ought not contaminate the services provided properly and without issue by the Respondent in respect of tooth 16. 2. The risks of the root canal procedure were explained to the Applicant verbally. The Applicant signed a consent form in January 2019, albeit after the procedure had taken place, but the risks were clearly articulated to him verbally before the procedure. It is not uncommon for doctors to verbally go through the risks and obtain verbal as opposed to written consent. 3. On 3 January 2019, the Applicant was advised the medical file had separated during the root canal process and that the crown work had been completed. This is consistent with the altercation that took place on 3 January 2019 and why a referral was issued for the Applicant to see a specialist. If no adverse event or complication had been notified, then these events could not be explained. The practice was busy and the parties had had a falling out and as such the referral letter was issued two days later. 4. The separation of the medical file is not a rare adverse event and in any event it has now been remedied by Dr Yeng via a bypass which is considered just as effective as a file removal.

F. TRIBUNAL'S CONSIDERATION AS TO LIABILITY

1. The phrase "due care and skill" in s 60 of the ACL is equivalent to the common law duty to take reasonable care and that the services will be performed in a "careful, skilful, and workmanlike" manner: Let's Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 at [6] (Basten and Gleeson JJA).
2. The test is an objective test and all of the facts and circumstances must be considered in the context of the application of an objective standard of due care and skill. That being said, whilst I appreciate that broader issues about the Respondent's record keeping and whether or not informed consent was provided are matters that may be relevant for a professional body such as the Dental Council of New South Wales, the matters which arise for proper consideration by this Tribunal are more nuanced: did the Respondent comply with its obligations to provide services to the Applicant in respect of teeth 16 and 17 with due care and skill.
3. The Tribunal has of course had careful regard to the findings of the Dental Council of NSW but their relevance to this proceeding is as set out in the preceding paragraph. Some of the findings relate to a lack of informed consent for the procedures performed, no disclosure to the patient as to the costs of treatment. The Tribunal does not consider the issues of informed medical or financial consent to be relevant to its findings concerning non-compliance with section 60 of the ACL.
4. The question of whether there has been a failure to carry out the services with due care and skill is not one to be considered in the abstract, and the standard required by the ACL, is not perfection.
5. The Tribunal finds that the issues raised in respect of the adverse event arising from the root canal procedure on tooth 17 is fundamentally separate to the services performed by the Respondent in the placement of the crown. It is inappropriate to conflate them, or to conflate the medical services rendered with some of the other professional conduct issues.
6. Accordingly, I proceed to deal with liability in respect of the services provided for each of the two teeth separately.

Question 1 - Did the Respondent fail to comply with the consumer guarantee as to due care and skill in respect of the crown placement on tooth 16?

1. The Applicant approached the Respondent on 24 November 2018 for a simple routine check-up. He was informed he needed a Crown on tooth 16.
2. He was subsequently told he needed a separate root canal on tooth 17. The series of events including the change in treating doctors and their views as to what procedure should be done first is of course notable.
3. It was apparent during oral argument at the hearing that each of Dr Chen and Dr Zhang had their own professional opinion as to which of the two separate procedures were a medical priority or would facilitate better access to the affected areas.
4. There is a dispute between the parties as to their recollection of what was scheduled when and what the preferences of the Applicant were in terms of treating doctor.
5. Given the lack of clear medical notes in evidence, the Tribunal does not have enough evidence before it from either party to make a finding that the sequencing of the separate procedures or the interruption of the crown procedure to undertake the root canal procedure constituted a failure to act with proper care, skill or diligence.
6. Having made such a finding, there is no other basis to challenge the supply of services in respect of tooth 16.
7. The Applicant contends that he did not know the Crown placement was completed on 3 January 2019. It was clear to all parties that the crown would be deferred until the root canal was finalised. The work on tooth 16 was undertaken with due care and skill and the Applicant has had the benefit of this procedure.

Question 2 - Did the Respondent fail to comply with the consumer guarantee as to due care and skill in respect of the root canal procedure on tooth 17

1. The Tribunal is satisfied that the separation of the medical file in the root canal procedure wherein the file was left in the canal constitutes non-compliance with the requirement that the Respondent supply services with due care and skill in section 60 of the ACL.
2. The Respondent's submission, supported by the ADA support person during the hearing, was that such an adverse event is not rare.
3. The Tribunal is not satisfied, on the proper evaluation of the expert evidence before it, that such an adverse event is indeed not rare or that it happens often.
4. The expert evidence, including the Endodontic report of Dr Yeng clearly points to the fact that something wrong occurred during the root canal procedure by the Respondent's practitioners. Indeed on the facts, it was by all accounts a difficult procedure and quite painful during the first of the three appointments when Dr Chen initiated the root canal procedure.
5. The Respondent contends the applicant was informed of the issue and given a referral so that he could decide what he wanted to do to remedy the issue.
6. The Applicant maintains he was not advised of this issue and it was only discovered in the course of seeking a second opinion from Dr Leung.
7. The Tribunal does not consider it relevant to the question of whether the Respondent acted with due care and skill in undertaking the root canal process itself to make a finding as to whether the Respondent alerted the Applicant to the adverse event that occurred during the procedure. The adverse event had occurred. This in and of itself is a major failure to comply with section 60 of the ACL.
8. It is sufficient that I am satisfied that an adverse event took place during the root canal procedure for tooth 17, namely the separation of the medical file which was left lodged in the Applicant's canal. The evidence demonstrates that this should and would not have occurred if the Respondent had acted with due care and skill and that as such, the Applicant has made out its case in this respect.
9. The Tribunal's finding is that the supply of the actual dental services in the root canal procedure itself reflected non-compliance with the consumer guarantee as to due care and skill. The Applicant was left with a large furcal perforation with bleeding.
10. The Tribunal is satisfied that the fractured file left in the applicant's tooth during the root canal process gave rise to a major failure entitling the Applicant to a full refund for the root canal work performed by the Respondent.

G. TRIBUNAL'S CONSIDERATION AS TO REMEDY

1. The Tribunal must determine whether the applicant suffered reasonably foreseeable damage and loss as a result of the non-compliance with section 60 of the ACL such that compensation should be awarded under section 267 of the ACL.
2. This section provides: "267 Action against suppliers of services (1) A consumer may take action under this section if: (a) a person (the supplier ) supplies, in trade or commerce, services to the consumer; and (b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3-2 is not complied with; and (c) unless the guarantee is the guarantee under section 60--the failure to comply with the guarantee did not occur only because of: (i) an act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier; or (ii) a cause independent of human control that occurred after the services were supplied. (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) terminate the contract for the supply of the services. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) terminate the contract for the supply of the services; or (b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services. (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure (5) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3)".
3. This raises for consideration the appropriate measure of loss to be awarded in a case such as the present.

Economic loss - refund of treatment by Respondent and reimbursement of remedial treatment by Dr Yeng

1. The Applicant contends that he is entitled to a full refund of all fees paid to the Respondent, for both tooth 16 and tooth 17.
2. The Respondent disputes this and contends that any compensation in this matter by way of a refund should relate to the specific tooth in which the root canal procedure was performed and where the medical file separated, and not the unrelated crown procedure.
3. As set out above, the Tribunal is satisfied that the procedures carried out in respect of the two teeth are separate and unrelated. The Tribunal also finds, as noted above, that there was no issue with the crown work carried out in relation to tooth 16 in and of itself.
4. The Tribunal orders the refund of money paid to the Respondent in respect of the root canal process for tooth 17. These are as follows: 1. $400 on 11 December 2018 2. $480 on 20 December 2018 3. $853 on 3 January 2019 4. I also allow the initial consult fee of $475 incurred on 24 November 2018. The appointment should have identified the need for crowning on tooth 16 and likely on the expert evidence tooth 17 and the root canal issue but there is no evidence before the Tribunal that this occurred.
5. This is a total of $2208
6. The Tribunal also considers that consequential losses in the form of remediation are appropriate. The applicant had to consult Dr Leung. The remediation process had to be carried out by Dr Yeng who had to bypass the fractured file in the MB root with a size 10 file using irrigation/ultrasonic activator.
7. The Tribunal allows the following consequential losses: 1. $50 Consultation fee of Dr Leung on 21 January 2019. The full amount of the charge is allowed as it would not have been necessary but for the Respondent's conduct. 2. The Tribunal allows the Applicant's out of pocket fees for Dr Leung's fees of $348 for the crown placement for tooth 17 on 21 January 2019. The Tribunal is satisfied based on the evidence and submissions before it that the crown would be necessary following a root canal process whereby teeth would by their nature be brittle. The consent of the patient would have been obtained had this issue been clear but as the exchanges on this between the parties are in dispute, the Tribunal must proceed on the basis that the Crown should have been placed following the root canal procedure but was not necessitating the work of Dr Leung. Only the out of pocket expense is allowed as the benefit of the procedure has flowed to the Applicant. 3. The Consultation cost of $350 for Dr Yeng on 8 February 2019. The full amount of the charge is allowed as it would not have been necessary but for the Respondent's conduct. 4. The two phases of the remediation process of $2800. The full amount of the charge is allowed as it would not have been necessary but for the Respondent's conduct. 5. Travel costs comprising 4 trips to and from Dr Leung and 4 trips to and from Dr Yeng which is 252 kilometres calculated at $0.66 per kilometre which is $167.
8. The total for these consequential losses under section 267(4) of the ACL is $3715.
9. The total for the immediate losses and consequential losses is $5923.
10. The applicant claims the hours lost in attending to various medical appointments and to NCAT filing and matter preparation. The general rule is that litigants bear their own costs in the Tribunal and I do not otherwise see a proper basis for awarding further losses referable to the hours in the tables in Tab 22/page 50 of the Applicant's August 2021 evidence bundle.

Economic loss - allowance for future medical treatment - section 267(4) of the ACL

1. The Applicant contends that the fact there was a separation of the medical file in his dental canal will necessitate ongoing monitoring and treatment given that it exposes him to risks of infection and future tooth extractions and implant procedures. He seeks compensation for such future costs of treatment.
2. The Applicant relies on the report from North Sydney Dental Specialists dated 9 August 2021. It provides that tooth 17 is asymptomatic and that it has a "guarded prognosis". It also purports to set out options moving forward "if the tooth is lost."
3. The Respondent disputes this claim. The Respondent's evidence is that once the medical file separates, the treatment is to either have it removed or bypassed. It submits that Applicant has already undertaken one of these remedial steps in this matter and as such there is medically no further ongoing treatment required or likely.
4. The Respondent relies on, and the Tribunal has carefully evaluated, the articles filed by the Respondent on long term prognosis and management of teeth which have been impacted by instrument fracture or separate instruments. These can be found on pages 66 to 106 of the Respondent's Supplementary Document bundle.
5. On balance, the Tribunal is not persuaded that the applicant has proven that a bypass procedure has a poorer prognosis compared to file removal such that ongoing medical costs are necessary. The report supplied by the Applicant does not set out a cogent basis as to why the future prognosis would be considered "guarded" or why the tooth would be "lost" and indeed if that has any causation to the medical file separation.
6. Indeed, the weight of the evidence before the Tribunal is that from a remediation and treatment perspective, a bypass is equivalent to a removal of the fractured file.
7. The Tribunal is not satisfied that the Applicant has proven to the requisite degree that there will be future medical work required or flowing from the separation of the medical file beyond the remedial work already undertaken by Dr Yeng and in respect of which the Tribunal has already made compensatory orders above.
8. This part of the claim is dismissed.

Non-economic loss

1. The Applicant contends he has suffered emotional hurt and aggravation by reason of the Respondent's conduct.
2. Any part of the Applicant's claim for non-economic loss must fail by virtue of section 16(1) of the Civil Liability Act 2002, which provides the following: " 16 Determination of damages for non-economic loss 1. No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case."
3. This is because there is no evidence before the Tribunal consistent with a finding that the Applicant is eligible for such a loss, nor would such a finding be coherent or sustainable given the factual circumstances of this case.
4. This part of the claim is dismissed.

H. CONCLUSION

1. The total sum of the direct losses and consequential losses is $5923 as I have determined. I make orders for the payment of this compensation for the reasons set out above.
2. It is a matter for the parties as to whether they wish to separately re-visit the offer of settlement from the Respondent to the Applicant in April 2021 and following.

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: 16 March 2022