(2008) 40 Fam LR
96
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58
(1985) 62 ALR 85,
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Ramsay v Watson [1961] HCA 65
(1961) 108 CLR 642
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Limited [2002] FCAFC 157
Source
Original judgment source is linked above.
Catchwords
(2003) 46 ACSR 504
ASIC v Rich & Ors [2005] NSWCA 152(2008) 40 Fam LR
96
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58(1985) 62 ALR 85,
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Ramsay v Watson [1961] HCA 65(1961) 108 CLR 642
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Limited [2002] FCAFC 157
Judgment (33 paragraphs)
[1]
Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37
Old v Miniter [2021] NSWCA 92
Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR
96
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85,
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Limited [2002] FCAFC 157; (2002) 55 IPR 354
Yong v Antworks Pty Ltd [2016] NSWCATAP 14
Texts Cited: None cited
Category: Principal judgment
Parties: Savithri Stella Wickremeratne (Appellant)
Dr Ina Van der Merwe t/as Balgowlah Family Practice (Respondent)
Representation: Solicitors:
Appellant (Self Represented)
Meridian Lawyers (Respondent)
File Number(s): 2021/00056017 (AP 21/00372)
Publication restriction: None
Decision under appeal Court or tribunal: Civil and Administrative Tribunal
Jurisdiction: Consumer and Commercial Division
Citation: N/A
Date of Decision: 09 October 2020
Before: J Searson, General Member
File Number(s): GEN 20/25533
[2]
Introduction
This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal (Tribunal) on 9 October 2020 (Decision).
The Decision concerned a consumer application brought by the appellant against the respondent, a dentist with a practice in Sydney. The appellant sought compensation from the respondent caused by "a denture that did not fit [and] inappropriate dental advice and treatment".
The Tribunal dismissed the application.
[3]
Background
The appellant was a patient of the respondent for many years. In 2017, the appellant saw the respondent on several occasions to seek treatment for issues she had with her bite. The appellant had a full upper denture and a partial lower denture with three mini implants in the front lower jaw housed in the lower denture.
The respondent initially recommended a full upper denture and to build-up the lower denture as a temporary measure. The respondent advised that tooth 43 (T43) in the respondent's lower mouth needed to be extracted and undertook some draining of an abscess in tooth 44 (T44). T43 and T44 are pre-molars on the lower right of a jaw and these were the only teeth which the appellant had to bite with and they also secured the lower denture with the mini-implants. After issuing the full upper denture, the appellant sought an adjustment to her palate. The respondent extracted both T43 and T44 and refurbished the existing lower denture.
Following this treatment, the appellant complained about the lower denture not fitting properly, the housing and mini-implants not making contact and the denture resting unevenly on the mini-implants. That caused food to collect under the lower denture. Her bite problem remained unresolved.
The appellant saw the respondent about these complaints. After consulting with her dental technician, the respondent declined further treatment of the appellant any recommended in a telephone message for the respondent that she should consult a local prosthetist and refunded the appellant the cost of the treatment in the sum of $1,550.00.
A dental report obtained by the appellant shortly after the treatment identified there was a gap in the placement of the denture. This was said to be caused because the denture did not contact the anterior ridge of the jaw and it sits off that ridge because of the implant housings.
The appellant obtained advice and treatment from numerous dentists and dental specialists for which she claims the cost from the respondent in her application brought in this Tribunal. Her claim also includes costs associated with a future treatment plan. These reports and treatment plans/quotes were relied upon by the appellant in the proceedings before the Tribunal.
Before filing her application in the Tribunal, the appellant issued a complaint with the Dental Council of NSW (Council). The Council found that "the complaint [relating to the respondent's conduct] did not constitute unsatisfactory conduct under s 139B of the Health Practitioner Regulation National Law (NSW)...". The Council did find that the appellant's "complaint raised concerns with regard to [the respondent's] record keeping and lack of discussion of treatment options." The respondent was directed to attend formal counselling pursuant to s 145B(1)(g) of the Health Practitioner Regulation National Law (National Law) "to remind" the respondent of her "professional responsibilities and help you enhance and improve your professional practice".
[4]
The Tribunal's Decision
The hearing before the Tribunal was conducted by telephone due to the revised sitting arrangements resulting from the COVID-19 pandemic. Both parties gave oral evidence. The transcript records the Member's difficulty in hearing the parties and many parts of the transcript provided by the parties is identified as "inaudible".
In addition to the reports and treatment plans/quotes referred to above and identified at [4] of the Tribunal's reasons, the appellant relied upon an expert report of Dr Oliver Colman, a dental surgeon. Dr Colman is presently a locum tenens in the Royal North Shore Hospital Community Dental Clinic. There was no record of the oral instructions the appellant provided to Dr Colman and he did not conduct an examination of her for the purpose of preparing his report. For present purposes, we have assumed that her instructions to Dr Colman generally accorded with the evidence and submissions relied upon her in the Tribunal and on the appeal.
The respondent relied upon some historical dental reports from dentists whom the appellant has seen for treatment in 2007 and 2011. She also relied upon an expert report of Dr Christopher Telford, a dental surgeon practising as CBD Medic-Legal Consultants, whose report was provided in response to a letter of instruction issued to him by the respondent's solicitors (who represented the respondent on the appeal but not at the hearing before the Tribunal). Dr Telford did not conduct an examination of the appellant.
Both parties' experts were said to be available for questioning or to assist the Tribunal at the hearing but neither party sought to adduce oral evidence from or cross-examine either of the experts. The Tribunal did not seek to ask questions of either party's expert either.
The Tribunal identified the issue before it as whether the dental services provided by the respondent were rendered with due care and skill pursuant to the consumer guarantee implied into a consumer contract by s 60 of the Australian Consumer Law (NSW) (ACL).
The Tribunal dismissed the appellant's application and, in summary, made the following findings:
1. the appellant was recommended a treatment plan for standard implants and new dentures in 2011 by Dr Bahl. She decided not to follow that plan and "now wants to essentially follow that treatment plan". The Tribunal accepted the evidence of Dr Telford that her situation was caused "entirely as a lack of compliance on Ms Wickremeratne's part";
2. Dr Colman said that the appellant's deteriorating dental condition "may have been out of the dentist's [ie respondent's] control, despite regular attendance and compliance by the patient";
3. the respondent took an x-ray and diagnosed a draining absence of T44 (a lower tooth) on 6 April 2016 and advised the applicant about her treatment options including root canal or extraction of T44. On 29 June 2019 T44 had become worse and she was again told it needed extraction as it had become chronically infected. T43 (another lower tooth) had also by this time become "mobile" and also required extraction;
4. the appellant consulted the respondent on 10, 15 and 21 August 2017 about her upper denture;
5. on 29 August 2017 the respondent extracted T43 and T44. The Tribunal rejected the appellant's claim that she did not give "informed consent" for the extraction of both teeth when it was clinically appropriate to remove them;
6. no expert report suggested that the removal of T43 or T44 was not reasonable in the circumstances;
7. on 31 [sic - 30] August 2017 the respondent provided the appellant with a lower denture about which the appellant expressed her dissatisfaction;
8. the respondent discussed with the appellant the need for her to have a new or adjusted denture and that the respondent did not do mini-implants. She also explained to the appellant that any implant would need to be placed by a specialist at a cost of $1,000.00 per implant;
9. the appellant accepted the respondent's refund of $1,550.00 "being the full amount ... paid for the lower denture" and found that she "is now effectively seeking a further refund for this treatment ...";
10. the Tribunal cannot look behind or change the finding by the Council that the respondent's treatment of the application did not fall significantly below a reasonable standard as prescribed by s 139B(1)(a) of the National Law;
11. the appellant did not provide sufficient evidence to overcome that finding by the Council;
12. the concerns found by the Council in relation to the respondent's record keeping and lack of discussion of treatment options do not constitute a lack of due care and skill;
13. the Tribunal accepted the expert evidence of Dr Telford that the Dental Council "fully exonerated" the respondent - being the ultimate body to make clinical decisions about the therapy provided - and held that the Council's concerns with respect to the form of abbreviations she uses in her notes "bears no relevance whatsoever in this matter before NCAT";
14. the appellant's own expert commented that contributing to her deteriorating dental condition "may have been out of the dentist's control, despite regular attendance and compliance by the patient". The Tribunal noted but did not make findings that the cause of the appellant's condition was by her failing to adhere to recommended treatment plans, choosing less expensive options and the natural progression of the appellant's failing dentition.
[5]
Grounds of appeal
The Notice of Appeal with attached documents (Appeal) was filed on 4 January 2021. The Appeal raises, by way of summary, the following contentions:
1. the Tribunal erred in equating the finding by the Council that the respondent's conduct was not "significantly" below a reasonable standard to the standard imposed by the guarantee provisions of the ACL;
2. the Tribunal ignored the finding by the Council which "raised concerns with regard to record keeping". The appellant contended that the "services" provided by the respondent included the proper keeping of records;
3. the Tribunal was wrong to accept the opinion of Dr Telford that the Council fully exonerated the respondent;
4. the Tribunal incorrectly regarded her claim for compensation as an attempt to seek a "further refund" in addition to the respondent's return of $1500.00 for the cost of the lower denture;
5. the Tribunal incorrectly focused on her general dental condition and the removal of her two lower teeth. T43 was not "mobile". The Tribunal failed to focus on the application of the denture and incorrect treatment;
6. the Tribunal found the expert report of Dr Telford as "truly independent", and the respondent's expert report was "based on the respondent's legal advice, her legal team write an account on what the respondent says what happened, with no proof, no clinical notes to validate her claims."
The appellant sought to rely upon a further report of Dr Colman dated 1 October 2020 that was not provided by her to the Tribunal at the hearing on 9 October 2020. The appellant explained that her submissions were provided to the Tribunal before the hearing in accordance with the Tribunal's directions but not the further report of Dr Colman who:
"was away in Dubbo on work. Due to lack of resources, Dr Colman's response to Dr Telford's report was delayed. I received this on 1 October in the body of an email with no signature. I could not include this letter in my final submission. However, I used some of what he had written in response to Dr Telford's report at the hearing on 9 October and in the summary I sent on 2 October, [but] I could not include his letter in my submission".
[6]
Reply to Appeal
The respondent's Reply to the Appeal (Reply) was filed on 22 January 2021 and contains a detailed submission as Annexure "A" which, in summary, stated that:
1. leave to appeal was opposed. No question of law arises. The reasons of the Tribunal identified and dealt with the correct issues. The decision was not unreasonable and there has been no substantial miscarriage of justice;
2. the appellant has "misunderstood the evidence of the Dental Council decision and the opinion of Dr Telford";
3. there was no new "significant evidence" although there is an unsigned report of Dr Colman dated 1 October 2020 (included in the respondent's submissions) that was not relied upon at the hearing before the Tribunal on 9 October 2020. No adjournment was sought to rely upon it. In any event, the Tribunal preferred the evidence of Dr Telford;
4. the appeal lacks "any merit" and represents "nit picking" and she just does not accept the outcome;
In addition, the respondent sought her "costs" responding to the application before the Tribunal. This was really a claim for loss of income, being a full time dentist. The respondent wanted to be partially compensated for her loss and submitted that a nominal sum should be awarded to reflect her contention that the appeal lacked any tenable basis in law.
[7]
Statutory basis of the appeal
An appellant may appeal from a Tribunal's decision as of right on any question of law or otherwise with the leave of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
As this is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal, the appeal grounds, other than those concerning a question of law, are also regulated by cl 12 of Sch 4 of the NCAT Act.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel set out a non-exclusive list of questions of law at [13]:
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 (i.e., 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.
A question of law also arises where it involves consideration of whether a court or tribunal has identified or applied the relevant and correct legal test and whether the facts of a case "fall within a statute properly construed": Federal Commission of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FCR 410 at [13].
[8]
Leave to Appeal
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]:
It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) [of the NCAT Act] provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
[9]
Issues on Appeal
Having regard to the above principles, we are satisfied that the following questions of law arise on this appeal, such that leave to appeal is not necessary:
1. Question One: whether, when having regard to the standard of care and skill imposed by s 60 of the ACL, the Tribunal failed to take into account all relevant legal principles including the application of the provisions of the Civil Liability Act 2002 (NSW) (CLA) which are enlivened by the ACL;
2. Question Two: whether the Tribunal failed to have regard to all of the relevant and applicable provisions of the ACL that were raised on the facts before the Tribunal and that should have been considered by the Tribunal, in particular ss 61(1) and (2) of the ACL;
3. Question Three: whether the Tribunal applied the wrong legal principle by equating the legal standard of care and skill prescribed by s 60 of the ACL for the provision of the respondent's services with the respondent's professional standards conduct, found by the Council as not constituting "unsatisfactory professional conduct";
4. Question Four: whether the Tribunal failed to take into account relevant considerations and/or took into account irrelevant matters when accepting the expert evidence of Dr Telford in preference to the expert evidence of Dr Colman.
[10]
New Evidence
The appellant sought to rely upon the evidence of Dr Colman in his report of 1 October 2020. This is significant new evidence and although it was in one respect available at the hearing before the Tribunal, it was not utilised by the appellant because Dr Colman - through no fault of the appellant it seems - was unable to provide a signed copy of his report by the time of the hearing. The appellant said that she therefore believed she was not able to rely upon it.
It is possible that if the Tribunal had regard to that expert evidence then it may have approached its evaluation and acceptance of the evidence of the appellant differently and less favourably. Without Dr Colman's report in reply, the evidence of Dr Telford was in effect unchallenged.
We can see no prejudice to the respondent in allowing this evidence on the appeal. In a further letter of instruction to Dr Telford dated 24 February 2021, the respondent's solicitors pre-empted the appellant seeking to rely upon Dr Colman's report of 1 October 2020 and requested Dr Telford to provide a further report in response. If we allow Dr Colman's report of 1 October 2020 we would therefore also allow the respondent to rely upon the further report of Dr Telford dated 3 March 2021 that was already included in the respondent's tender bundle for the appeal filed on 4 March 2021.
We allow the appellant to rely upon the expert report of Dr Colman in reply dated 1 October 2020 and for the respondent to rely upon Dr Telford's further report dated 3 March 2021.
[11]
Submissions Received after the Hearing
Shortly after the hearing, and without leave, the appellant forwarded to the Registry an email with "a few points" she said she had "missed out" when replying to the respondent's oral submissions. We are unsure if the appellant served the further submission on the respondent's solicitors. For us to now consider those further submissions would first require the respondent being afforded a further opportunity to respond them and that would create further costs and delay in the hearing of this appeal.
The Appeal Panel has commented on the inappropriateness of parties sending submissions to the Tribunal after the conclusion of a hearing without leave to do so: see Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37 at [106] to [110].
Having regard to the "overriding purpose" set out in s 36 of the NCAT Act to facilitate the "just, quick and cheap resolution of the real issues in the proceedings", we do not grant the appellant leave to rely upon the further submission and we have not had regard to that submission in preparing our reasons.
[12]
Question One
We now turn to "Question One", namely whether, having regard to the standard of care and skill imposed by s 60 of the ACL, the Tribunal failed to take into account all relevant legal principles including the application of the provisions of the CLA which are enlivened by the ACL.
[13]
Australian Consumer Law
As the Tribunal stated in its reasons, s 28 of the Fair Trading Act 1987 (NSW) (FTA) provides that the ACL applies as a law of NSW and "as so applying is a part of this Act".
The Tribunal described that issue for determination as "whether the services provided by the respondent in connection with the applicant's dental treatment were carried out with 'due care and skill'". As we have stated above, the appellant did not formulate or express her claim in that way and the Tribunal quite properly in the case of a self-represented litigant, identified the relevant legislative provision of the ACL under which her claim could be brought before the Tribunal.
In doing so, the Tribunal correctly identified the application of s 60 of the ACL as a consumer provision that is implied into a contract of service, including for professional services, a guarantee that the services will be provided with due care and skill.
Section 60 of the ACL provides:
60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
The ACL also contains s 61, which relevantly provides:
61 Guarantees as to fitness for a particular purpose etc.
(1) If:
(a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.
(2) If:
(a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;
the result that the consumer wishes the services to achieve;
there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.
In Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733 (Moore) Garling J concluded that the defendant (Scenic) had failed to comply with the consumer guarantees in ss 60 and 61 of the ACL.
[14]
Civil Liability Act 2010 (NSW)
We are satisfied that it was open to the Tribunal, if it had approached its analysis in accordance with the reasoning process in Moore, to have found that the first condition imposed by s 5B(1)(a) of the CLA was satisfied, namely that the risk of harm to the appellant was foreseeable if due care and skill was not applied by the respondent in the provision of the respondent's dental services.
Section 5B(1) of the CLA provides:
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless--
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
After a finding that the risk of harm was foreseeable, the next matter to consider under s 5B is whether the risk of harm was not "insignificant": s 5B(1)(b) of the CLA. In Moore, Garling J confirmed that approach which was discussed earlier by his Honour in Benic v State of NSW [2010] NSWSC 1039 at [101]. The question to be addressed is whether the risk is not so low as to fall below the threshold of "insignificant" fixed by s 5B(1)(b) of the CLA.
The answers to these matters are always fact dependent. However, following the approach set out by Garling J in Moore, we are satisfied that the risk of harm was not insignificant. Dr Telford described the provision of a lower refurbished denture with a retrofit procedure rather than providing a "new" denture as "fraught with difficulties". A refurbished denture and retrofit procedure was the actual product supplied and the service performed by the respondent.
As we have stated above, the Tribunal focused on the due care and skill standard implied by the statutory guarantee in s 60 of the ACL. The Tribunal was persuaded in this regard by the findings of the Council - that was so heavily relied upon by Dr Telford - and found that the respondent's conduct in the provision of professional services was not unsatisfactory and therefore not in breach of s 60. In reaching that finding, the Tribunal did not have regard to the relevant provisions of s 5B of the CLA and the proper two-step approach prescribed by Garling J in Moore. Had the Tribunal first considered and made a finding as to whether the risk of harm was foreseeable, and then turned it consideration to the second step as to whether the risk of harm was not "insignificant", a different outcome may have resulted.
[15]
Consideration - Question Two
The second issue that arises as a question of law for our consideration is whether the Tribunal failed to have regard to all of the relevant and applicable provisions of the ACL that were raised on the facts before the Tribunal and that should have been considered by the Tribunal, in particular ss 61(1) and (2) of the ACL.
The term "services" in the ACL is not limited to a consideration of factors in relation to the provision of services with due care and skill akin to the tort of negligence that we have discussed above arising under the combined operation of s 60 of the ACL and s 5B of the CLA.
There is no intention contained in the provisions of ss 60, 61(1) and (2) of the ACL and no reason on the facts before the Tribunal for it to have limited its consideration of the services provided by the respondent only to the due care and skill guarantee provision of s 60.
In our view, the provisions of ss 61(1) and (2) of the ACL also directly arose for consideration on the facts in the proceedings before the Tribunal. The Tribunal however failed to consider the evidence in light of those provisions of s 61 of the ACL which are quite separate and additional to the matters that were for its consideration under s 60.
The appellant said:
I trusted her as the professional and the expert to look after my best interests and inform me about the treatment options available to me ... So the denture just didn't fit. I couldn't eat with it. I went back and I showed her that it was just rocking. It wouldn't connect with the implants. She said she would speak to the technician, and she left a message on my phone saying that she spoke to the technician and she doesn't feel she would get anywhere and that she is returning my money.
The appellant saw Dr Sinfield of Kingsway Dental Pty Ltd at Dee Why on 11 September 2017. Dr Sinfield was the practitioner who installed the mini implants and partial denture held with three keepers and natural teeth in 2012.
Dr Sinfield took an x-ray on 25 September 2017 and issued a report issued on 26 September 2017. Dr Sinfield stated:
"Clinically the denture does not contact the ridge all around and is held up by the implants creating a gap" and "It is identifiable that the denture is sitting up off the anterior ridge due to the implant housings" and a better fit can be obtained around the mini implants with the recommended procedure. Dr Sinfield refused to touch the denture due to history of jaw problems with TMJ and possible legal action and recommended seeing a Specialist Prosthodontist. Proposed a new denture and new housings fitted individually and directly in the mouth.
[16]
Section 61(1) ACL: Fitness for Purpose Guarantee
On the facts and circumstances of the present case, we are of the opinion that the dental services provided by the respondent also gave rise to the guarantee provisions in s 61(1) of the ACL, namely that the services, "and any product resulting from the services, will be reasonably fit for that purpose". (our emphasis). The appellant's consumer application specifically complained about a "denture that did not fit".
Garling J also considered ss 61(1) and (2) in Moore at [395]:
The use in the ACL of the qualification "reasonably" when considering fitness for purpose, shows that not every small lapse or shortfall in the provision of services will result in a breach of the purpose guarantee. A supply of services will not be in breach of such a guarantee unless the services are not reasonably fit for the identified purpose. The use of the term "reasonably" also introduces an objectively referable measure. It is a qualitative rather than a quantitative one. It requires an overall evaluation of the services provided, and a determination of their fitness for purpose, qualified by the word reasonable.
The Tribunal did not address that issue in its reasons.
[17]
Section 61(2) ACL: Result Guarantee
As explained by Garling J in Moore at [407]:
"As with the purpose guarantee, whether or not the nature and quality of the Services might reasonably be expected to achieve the result is fact dependant [sic]... "
and at [408]:
There is a substantial overlap between many of the facts relevant to a claim for a breach of the result guarantee [s 61(2)] with those facts and circumstances relevant to the breach of the purpose guarantee [s 61(1)].
In its application to these proceedings, the result guarantee in s 61(2) of the ACL requires the appellant to establish that the respondent supplied the services to her as a consumer and that she made known to the respondent, either expressly or impliedly, the result which she wished the respondent's dental services to achieve.
We are satisfied that the evidence establishes that the outcome or result that the appellant desired and for which she sought treatment was made known to the respondent.
The appellant's evidence was that she saw the respondent for a bite problem. That does not appear to be in dispute. Since the supply then occurred, s 61(2) of the ACL imposes a guarantee that the services supplied by the respondent will be of such a nature and quality that they might reasonably be expected to achieve that result. The Tribunal did not consider that question in its reasons.
The appellant contended that on 29 June 2017 the treatment plan advised by the respondent was for a new upper denture and for the lower denture alignment to be achieved by grinding the 2 pre-molar teeth (ie T43 and T44) on right side of lower denture. There is no record of this treatment plan in the respondent's clinical notes.
The respondent contended that the treatment plan was for a new partial upper denture, the extraction of T43 and T44, new artificial teeth in the existing lower denture and a build up of the lower denture. There is no record of this treatment plan in the respondent's clinical notes.
What is not in dispute is that after the appellant sought treatment for her bite, the treatment plan and dental work actually performed by the respondent only involved the removal of T43 and T44 and the modification of the existing lower denture.
After that work was performed the appellant complained that the denture was unusable and did not fit. She said that the housing and the implants did not make contact and that the denture rested unevenly on the mini implants. This enabled food to gather under the lower denture and did not resolve her bite problem.
[18]
Question Three
The third question of law identified by us and which we now address, is whether the Tribunal applied the wrong legal principle by equating the legal standard of care and skill prescribed by s 60 of the ACL for the provision of the respondent's services with the respondent's professional conduct standards.
As stated above, the Council dismissed the appellant's complaint and found that the respondent's conduct did not constitute "unsatisfactory professional conduct". The Tribunal found it could not look behind or change this finding and that the appellant had failed to provide sufficient evidence to overcome that finding.
The Tribunal also found that the concerns identified by the Council in relation to the respondent's record keeping and lack of discussion of treatment options do not constitute a lack of due care and skill.
In our opinion, the legal duty and standard of care and skill in a consumer compliant under s 60 of the ACL and s 5B of the CLA which we have discussed above and which in our view the Tribunal was required to consider, is not the same duty and standard which arises for consideration by the Council in a complaint of unsatisfactory professional conduct under s 139B of the National Law.
Section 139B includes the following definition of "unsatisfactory professional conduct" of a registered health practitioner:
(1)(a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
The test of "significantly below" the standard reasonably expected of a practitioner of an equivalent level of training or experience is a different test and invites different considerations to the approach we have set out above under s 60 of the ACL and s 5B of the CLA.
The question of whether the respondent's conduct was significantly below the standard reasonably expected of a practitioner of the same training and experience as the respondent requires not just a departure or shortfall in care and skill but for it to be "significantly below" the requisite standard. Also, that standard introduces a relative assessment, depending on the practitioner's specific level of training or experience.
[19]
Question Four
The next question of law we have identified is whether the Tribunal failed to take into account relevant considerations and/or took into account irrelevant matters when accepting the expert evidence of Dr Telford in preference to the expert evidence of Dr Colman.
[20]
Irrelevant matters taken into account by the Tribunal
We are of the opinion that the Tribunal erred by taking into account several irrelevant matters which we now discuss.
[21]
The Finding of the Dental Council
One the four reasons (being the second reason) given by the Tribunal for preferring the expert evidence of Dr Telford over the expert evidence of Dr Colman was that "his opinion appears to accord with the findings of the Dental Council of NSW." The Tribunal "noted" comments of Dr Telford in his report that Dr Colman's "critique" and "opinion" were "at counterpoint to that of the Dental Council."
The Tribunal accepted the expert evidence of Dr Telford that the respondent was "fully exonerated by the ultimate body to make clinical decisions about the therapy provided, The Dental Council of NSW."
In Dr Telford's report dated 3 March 2021 in reply to Dr Colman's second report dated 1 October 2020, both of which we have allowed into evidence on this appeal, Dr Telford's only comment was:
That the Dental Council has categorically cleared Dr van der Merwe of any medical negligence remains at the core of my opinion, and the reasoning for which, fully expressed in my September 9th, 2020 report, also remains unchanged." (emphasis added)
We do not accept that the Dental Council "fully exonerated" the respondent. The therapy provided by the respondent was found by the Council to be lacking in discussion of treatment options.
In our opinion, the Tribunal erred by accepting that part of the evidence of Dr Telford which was predicated on an acceptance of the findings of the Dental Council.
The Tribunal was required to consider all of the evidence before it in reaching its decision, unaffected by the findings of the Council. The finding of the Council was based on different evidence, applying different considerations and standards to those arising under the ACL and did not provide any reasons for its decision. The Tribunal was also obliged to apply the law as we have set out above. To the extent that the Tribunal was of the belief that it could "change" the Council's decision, it was mistaken. The appellant was not required to "provide sufficient evidence to overcome this finding" by the Council. The Tribunal was obliged to determine the consumer application according to the law prescribed by the ACL and not s 139B of the National Law.
[22]
Dr Telford's opinion that the respondent's services met the "standard of care"
Another irrelevant factor relied upon by the Tribunal to prefer the evidence of Dr Telford (the third reason) was because Dr Telford's report "directly addresses the question of whether the dental care by the respondent to the applicant met the standard of care."
Meridian Lawyers asked Dr Telford in the letter of instruction to address the question of whether the respondent departed from the "standard of care" in connection with the dental services she provided to the appellant. His answer was "No. See above."
Meridian Lawyer's do not define that "standard of care": that is, whether it was the standard of care relevant under the National Law or under s 60 of the ACL and s 5B of the CLA, neither of which are mentioned in the letter of instruction. In our view, this question is too broad and the answer is irrelevant in assisting the Tribunal in making its findings in relation to s 60 of the ACL or to have been relied upon by it as a reason to prefer the evidence of Dr Telford to that of Dr Colman.
[23]
Tribunal's Finding that only Dr Telford was "Truly Independent"
Another reason (the first reason) given by the Tribunal to prefer the evidence of Dr Telford was that his report was "truly independent". We are of the opinion that the reasons given by the Tribunal for making this finding were irrelevant and also led the Tribunal into error.
Dr Colman was never challenged on whether he lacked independence or that he did not provide his report in accordance with the Code of Conduct to which he referred in Sch 7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). We consider that his reference to the UCPR rather than the NCAT Code of Conduct is immaterial.
In our opinion, without hearing from Dr Colman, it was not open to the Tribunal to effectively find that Dr Colman was not an independent expert witness. Further, there is no apparent basis for the Tribunal's finding. Dr Colman's report sets out in considerable detail what inquiries he had undertaken for the purpose of preparing his report. He further declared that he had made "all enquiries that are desirable and appropriate and reviewed all the submitted files by both parties ... and no matters of significance which may be regarded as relevant have been withheld."
The Tribunal appears to have regarded Dr Telford as "truly independent" because unlike Dr Colman, he had not spoken with one of the parties and "based his opinion purely on clinical notes provided".
As is usual in assessing expert evidence, if the basis on which an expert report is not established by the evidence then that part of the expert's report should not be accepted. The Tribunal did not identify any such matter. What Dr Colman may have been told by the appellant is irrelevant unless it is relied upon by him and set out in his report. The Tribunal should not have inferred that Dr Colman's opinion may have been affected by the oral instructions provided to him.
The Appeal Panel has recently discussed the proper approach to the assessment of expert evidence in BuildPlatinum Pty Limited v Micaleff [2021] NSWCATAP 129 (Micaleff). The Appeal Panel said at [72] to [73]:
72. In the often cited judgement of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (Makita) at [85], the principles applicable to expert evidence were summarised as follows:
In short, if evidence is tendered as expert opinion evidence it has to be admissible;
- It must be agreed or demonstrated that there is a field of 'specialised knowledge';
- There must be an identified aspect of that filed in which the witness demonstrates that by reason of specified training, study, or experience, the witness has become an expert;
- The opinion proffered must be 'wholly or substantially based on the witnesses' expert knowledge';
- So far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert;
- And so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way;
- It must be established that the facts on which the opinion is based form a proper foundation for it;
...
73. However, although the principles expressed in Makita are important, they have been distinguished and refined in subsequent decisions. Often, the applicable principles go to the weight to be given to the expert evidence, not whether or not the evidence is admissible.
[24]
Finding that the appellant was not a regular patient of the respondent
The fourth and final reason given by the Tribunal for preferring the evidence of Dr Telford was based on the view that "Dr Colman's opinion is based on the premise that the applicant regularly attended the respondent for dental treatment." The Tribunal concluded that the clinical notes of the respondent show that the appellant did not attend on the respondent for dental treatment "regularly". We disagree with that assessment and also consider the Tribunal's reliance upon that as an irrelevant reason to prefer Dr Telford's evidence to that of Dr Colman.
In a letter to the respondent dated 12 September 2017, commenced as follows:
Dear Ina,
This is not an easy letter to write. You have been my dentist for 25 years.
According to the appellant, there were approximately 40 visits made by the appellant to the respondent across about 17 years: an average of more than 2 visits every year. We are of the opinion that in the context of a dentist/patient relationship, that frequency of consultation is not out of the ordinary or anything but "regular".
Further, it did not provide a sufficiently relevant reason for the Tribunal to prefer the expert evidence of Dr Telford.
[25]
Relevant matters not taken into account by the Tribunal
We are also of the view that the Tribunal failed to take into account certain relevant matters when assessing the evidence.
[26]
Significance of the Clinical Notes
The appellant in this appeal challenged the Tribunal's reliance on the report of Dr Telford when it was "based on the respondent's legal advice, her legal team write an account on what the respondent says what happened, with no proof, no clinical notes to validate her claims."
There is some force in that submission.
The instructions provided by the respondent's solicitors do not accord with the evidence in the clinical notes or the invoicing issued by the respondent. Dr Telford makes no mention of the clinical notes of the respondent although presumably they were included in the briefing materials described as the applicant's and respondent's "documents and submissions" provided to the Tribunal.
The Meridian Lawyers letter of instruction to Dr Telford dated 8 September 2020 (letter of instruction) makes no reference to the appellant seeing the respondent for consultation and treatment on 10, 15, 21, 29 and 30 August 2017. The last date mentioned in the letter of instruction is 29 June 2017 as set out 2.8 and 2.9 of that letter.
Those two paragraphs of the letter instruction state:
2.8. Mrs Wickremeratne returned on 29 June 2017 again complaining about tooth 44. Dr van der Merwe confirmed that she still had a buccal fistula that the tooth required extraction. Further, the other remaining tooth in the lower jaw, tooth 43, was very mobile and over erupted (there was no opposing tooth in the upper jaw). Dr van der Merwe advised against root canal therapy as there was no bone attachment and it was not a reasonable option in the circumstances. She explained the prognosis of teeth 44 and 43 was hopeless. At this time Dr van der Merwe also discussed Mrs Wickremeratne's occlusion. A treatment plan was recommended new partial adventure, two extractions (teeth 43 and 44), the addition of two new artificial teeth in the existing lower denture and a build-up of the lower denture with acrylic so it could occlude with her upper teeth. Mrs Wickremeratne was concerned about the cost of dental treatment thus the treatment plan involved modification of her existing denture once the two teeth were extracted. Dr van der Merwe says that she spent time explaining these matters to Mrs Wickremeratne and was satisfied she was fully informed when she consented to the extraction of the remaining two teeth in her lower jaw.
2.9. Dr van der Merwe then proceeded to issue a new upper denture and a modified lower denture.
(emphasis added)
[27]
False Entries in the Clinical Notes
Compounding the issues involving the respondent's clinical notes to which we have referred above, is that they also contain several false and misleading entries. In our view, this raises yet a further matter which the Tribunal failed to take this into account when preferring the evidence of the respondent over that of the appellant.
The respondent's invoice for the removal of tooth 43 on 2 August 2017 is false. The invoice relevantly states: 02/08/2017 - Item 311 - Wickremeratne, Mrs Savi: "Mrs Savi/(43) Simple Removal of a Tooth - $185. There is no clinical record of a consultation on 2 August 2017 or of a tooth extraction on that date.
The respondent invoiced the appellant for the removal of tooth 44 on 29 August 2017 as follows: 29/08/2017 - Item 311 - Wickremeratne, Mrs Savi/(44) Simple Removal of a Tooth - $185. The respondent's clinical notes do not refer to the removal of tooth 44 on 29 August 2017.
It was common ground that both T43 and T44 were removed on 29 August 2019 and both experts gave their evidence on that basis.
Further, the undisputed evidence is that the respondent provided a refurbished lower denture but charged the appellant and recorded in her clinical notes a "712/Full Lower Denture" on 30 August 2017.
It is also of concern that after the appellant sent her letter of complaint dated 12 September 2017 and after the respondent was contacted by telephone by Dr Hay on 13 September 2017 (whom the appellant saw with her complaints on 5 September 2017), the respondent made a "correction" to her clinical notes on 18 September 2017.
The respondent's clinical notes for 18 September 2017 state:
correction 44 draining 43 decay and sensitive pt [patient] requested that exo [extraction] date was not on the same date as 44 as healthfund advised she would get a better refund if invoice separately. 44 and 43 were removed at the same appointment.
Dr Telford discusses the treatment in August 2017 but raises no query about why a full lower denture was charged, why the clinical records for 29 August 2017 make no mention of the extraction of T43 and T44 on that date and why a correction was made to the clinical records. Nor does the letter of instruction attempt to explain this or draw it to Dr Telford's attention.
[28]
Irrelevant Considerations as to Cost of a Full Lower Denture
The undisputed evidence was that the respondent provided a refurbished lower denture but charged the appellant and recorded in her clinical notes a "712/Full Lower Denture" on 30 August 2017. It is open for us to infer from this entry that a full lower denture was an appropriate form of treatment for the appellant's presenting problems at that time. That accords with the evidence of Dr Telford who said in his report:
Please note that Dr van de Merwe prescribed a new lower denture at this stage but was prohibited from doing so by Mrs Wickremeratne for cost reasons, a want instead of a need. (emphasis in the original)
Dr Telford again said in his report:
Please note that a new denture was Dr van de Merwe's prescription, not immediately fulfilled.
This was a critical aspect underlying Dr Telford's opinion and reasoning. In our opinion the evidence did not support those conclusions made by Dr Telford.
The only evidence about the appellant's concerns as to cost is given by the respondent in her version of the transcript (which the appellant in her version of the transcript describes as "inaudible") and which is in all the circumstances unclear and unpersuasive.
There is no evidence given in the respondent's extensive (17 page) written "evidence and submission" dated 26 August 2020 that there was any issue at all raised by the appellant with respect to cost during the course of this treatment from June 2017 and the issuing of the lower denture on 30 August 2017: see paragraphs 4.13 - 4.18.
There was no finding made by the Tribunal that Dr van de Merwe recommended a full lower denture and that for reasons of cost between June to August 2017, the appellant rejected that prescription. That was a fundamental matter requiring a clear finding before the evidence of Dr Telford could be accepted.
The letter of instruction assumes or conjectures that:
Mrs Wickremeratne was concerned about the cost of dental treatment thus the treatment plan involved modification of her existing denture once the two teeth were extracted.
Unsurprisingly, Dr Telford accepted those instructions and picks up on that theme commenting that the respondent - when recommending a full lower denture - was "prohibited from so doing" for "costs reasons".
[29]
Whether the removal of T43 and T44 was necessary
Another irrelevant factor in our view was the focus by the Tribunal on the need for the removal of T43 and T44.
One of the questions asked of Dr Telford in the letter of instruction was whether the respondent's recommendation to remove teeth 44 and 43 was reasonable in the circumstances. Dr Telford answered: "yes".
The evidence of the respondent and the letter of instruction only mention this recommendation being given on 29 June 2017. Moreover, it was given in an entirely different context to the treatment provided on 29 and 30 August 2017. The respondent's evidence was that this was said on 29 June 2017 in the context of a full treatment plan that was never implemented involving "a new partial upper denture, two extractions (namely T43 and T44), the addition of two artificial teeth to the existing lower denture and a build up of the lower denture with acrylic ...".
There was no evidence that there was any discussion about options and risks of removing those two teeth on 29 August immediately preceding the work involving the refurbished lower denture on 30 August 2017 that was based on a different treatment plan to that discussed on 29 June 2017.
The Tribunal found, without any analysis of the competing evidence given by the parties, that it did not accept that the applicant did not or was unable to give "informed consent" to the extraction of both T43 and T44 and that it was "clinically appropriate to remove these two teeth" on 29 August 2017.
As the appellant contended, the relevance of the extraction of T43 and T44 was that this complicated the fitting of the lower denture because of the need for implants to then replace the missing teeth. We agree.
Dr Colman stated in his first report, there was no ongoing or further treatment plan or options proposed for the patient after the last two remaining teeth were extracted causing the lower jaw to become endentulous. The removal of the T43 and T44 meant that the lower denture "was no longer adequate to balance the occlusal (biting) forces. The three existing mini implants were rendered insufficient for holding the denture in place."
The Tribunal wrongly focused on the clinical need to remove T43 and T44 and not the informed consent as to the consequences of this therapy and the lack of a treatment plan for the refurbished denture once those teeth were removed, including, at the least, the need for implants.
[30]
Disposition of the appeal
The orders that we are empowered to make on an internal appeal are set out in s 81 of the NCAT Act. Section 81 provides that the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) an order that the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel: s 81(1)(e).
We are of the view that the appellant has not been afforded the opportunity of having her case dealt with in accordance with the principles of law properly arising in respect of her consumer application.
Having regard to the concerns of the appellant set out in her Notice of Appeal and our consideration of those matters discussed above, for the reasons the given by the Appeal Panel in Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [137] to [139], we are satisfied that the whole of the proceedings should be remitted to a differently constituted Tribunal for a new hearing. That new hearing should involve a re-determination of the appellant's application in accordance with the evidence previously adduced to the Tribunal, the new evidence allowed in this appeal and such further evidence as the Tribunal may allow.
[31]
Costs
The appellant has been successful.
If the appellant seeks an order as to the costs of this appeal, within 14 days of the publication of these reasons she should provide submissions to the Tribunal and to the respondent's solicitors setting out the relevant provisions of the NCAT Act and Rules relied upon in respect of successful appeals from the Consumer and Commercial Division and the reasons why costs should be awarded in her favour. The submissions must be limited to three pages. The respondent may respond with any submissions within a further seven days, also limited to three pages.
If it becomes necessary to consider the making of a costs order, we presently propose to dispense with a hearing and to do so "on the papers" pursuant to s 50(2) of the NCAT Act. If either party opposes that course, they should also address that matter in their submissions.
[32]
Orders
We make the following orders:
1. Appeal upheld.
2. The whole of the proceedings be remitted to a differently constituted Tribunal for a new hearing and redetermination of the appellant's application in accordance with the evidence previously adduced to the Tribunal, the new evidence allowed in this appeal and such further evidence as the Tribunal may allow.
3. If the appellant seeks an order as to her costs of the appeal, within 14 days of the publication of these reasons she is to provide any submissions to the Tribunal and to the respondent's solicitors setting out the relevant provisions of the NCAT Act and Rules relied upon and the reasons why costs should be awarded in her favour. The submissions must be limited to three pages and also address whether the appellant consents to us dispensing with a hearing on costs and determine the issue "on the papers" pursuant to s 50(2) of the NCAT Act.
4. The respondent may provide any submissions in response within 14 days of receipt of the appellant's submissions, also limited to three pages and also to address whether the respondent consents to us dispensing with a hearing on costs and determining the issue "on the papers" pursuant to s 50(2) of the NCAT Act.
[33]
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: 31 May 2021
Parties
Applicant/Plaintiff:
Wickremeratne
Respondent/Defendant:
Dr Ina Van der Merwe t/as Balgowlah Family Practice
Four reasons were given by the Tribunal for accepting the evidence of the respondent's expert Dr Telford in preference to the expert evidence of Dr Colman on behalf of the appellant. In summary, these were that:
1. Dr Telford "appears to be truly independent" in that he had not spoken with either of the parties and had based his opinion purely on the clinical notes provided;
2. unlike the opinion of Dr Colman, Dr Telford's report "appears to accord with the findings of the Dental Council of NSW";
3. Dr Telford "directly addresses the question of whether the dental care provided by the respondent to the applicant met the "standard of care". This question was answered "in the affirmative";
4. Dr Colman's opinion "is based on the premise that the applicant regularly attended the respondent for dental treatment".
In respect of s 60 of the ACL Garling J said at [409] to [410]:
409. This provision requires that the supplier of services to a consumer guarantees that the services will be rendered with due care and skill. The ultimate effect of this guarantee is that it precludes, in a consumer agreement, the capacity of the supplier of services to contract out of negligent conduct with respect to the supply of services.
410. The use of the phrase "due care and skill" is a direct reference to the common law standard of negligence.
Scenic submitted in Moore that the test of whether or not it had failed to render its services with due care and skill under s 60 of the ACL was one of reasonableness: Indico Holdings Pty Ltd v TNT Australia Pty Ltd (1990) 41 NSWLR 281 at 285(E).
Scenic submitted that in determining whether or not there had been a breach of the consumer guarantee in s 60 of the ACL, the Court must analyse the facts and circumstances according to the provisions of ss 5B and 5C of the CLA: Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; (2013) 86 NSWLR 55 at [145] to [150].
Garling J in Moore accepted that submission and relevantly stated at [422] to [423] and [426] to [429]:
422. The provisions of ss 5B and 5C of the CLA are relevant to the question of whether a person is, or is not, negligent. ... Section 5D of the CLA deals with causation of loss.
423. The provisions of ss 5B and 5C are not picked up and applied by virtue of s 275 of the ACL because before that section operates, there first has to be a failure to comply with a guarantee. The provisions are sought to be applied here to the question of whether or not there has been a breach of the guarantee. ...
...
426. Sections 5B and 5C of the CLA modify the common law of negligence - so much is explicit from the words used. Accordingly, I conclude that the defendant's submissions ought to be accepted. This result is consistent with the Court of Appeal's decision in Motorcycle Events Group at [34] per Basten JA; [46] per Meagher JA and [150]-[151] per Gleeson JA.
427. The provisions of s 5B of the CLA require the identification of a risk of harm. Neither party specifically addressed this in submissions. Identification of the risk of harm is an essential step in the proper application of this provision: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22]; Shoalhaven City Council v Pender [2013] NSWCA 210 at [55]-[72]; Uniting Church in Australia Property Trust v Miller [2015] NSWCA 320; (2015) 91 NSWLR 752 at [100]-[128]; Fairall v Hobbs [2017] NSWCA 82 at [75]-[76].
428. It seems clear that the application of care and skill was required in the supply of the Services in order to avoid the risk of Mr Moore (and the group members) suffering financial harm by way of economic loss and harm by way of disappointment and distress if the Services were supplied without care and skill.
429. The first condition imposed by s 5B of the CLA is whether such risk was foreseeable - that is, whether it was known to Scenic or which Scenic ought to have known. I am satisfied that this risk of harm was known to Scenic at all material times. After all, Scenic encouraged all intending and booked travellers to take out travel insurance to cover, inter alia, expenses related to the cancellation of cruises, and as well, disruption of the cruises.
The High Court endorsed the approach taken by Garling J: Moore v Scenic Tours Pty Ltd [2020] HCA 17 per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon JJ (with Edelman J agreeing in a separate judgment). The High Court found "no reason" why provisions of the ACL "should not pick up and apply State laws" (at [38]) when state courts are seized of federal jurisdiction under the ACL; also see the recent decision in Old v Miniter [2021] NSWCA 92, especially per Basten JA.
Applying these principles, in determining whether the respondent had failed to apply due skill and care in the provision of dental services to the appellant, the Tribunal failed to apply or refer to any process of reasoning that accorded which the approach set out in Moore.
It also seems that the appellant saw and obtained a verbal quote from Dr Russo, a well-respected dental prosthetist in Manly at about this time. Dr Russo quoted $1,600.00 for using the existing housing and an additional implant to hold the plate in place where the teeth had been extracted.
The appellant also saw Dr Lido Dental Prosthetist on 15 September 2017. He said that the "best option is for a new denture".
Having regard to the report of Dr Sinfield dated 26 September 2017 which Dr Telford had regard to but did not challenge, it would seem to be difficult to conclude that the work undertaken by the respondent was fit for purpose, irrespective of the Tribunal's findings in relation to the standard of care and skill raised by s 60 of the ACL.
It does not seem to be in dispute that the refurbished denture did not properly fit. The appellant could not chew or eat solids and was limited to "soft, mushy food" which then became trapped under the denture. The appellant said that the "the bite problem I saw her about continued". The respondent then declined treating the appellant any further and refunded the cost of the work undertaken for the modified lower denture but not for the removal of T43 and T44.
We are of the view that the Tribunal failed to and should have had regard to the application of ss 61(1) and (2) of the ACL to the facts and circumstances arising on the appellant's consumer application.
The considerations and findings of the Council do not equate to the matters properly for consideration and determination under s 60 of the ACL, together with s 5B of the CLA. Further, the only material of which we are aware that was before the Council is the appellant's letter of complaint dated 4 June 2018 (enclosing her two letters to the respondent dated 12 and 19 September 2017) and the respondent's letter to the Council dated 11 July 2018 and the six attachments referred to in that letter.
The evidence relied upon by the appellant before the Tribunal was more extensive and included the dental reports and clinical notes of dentists whom the appellant had seen after the respondent's treatment on 30 August 2017, including (aside from the expert report of Dr Colman) contemporaneous reports from Dr Sinfield on 26 September 2017 and Dr Hughes on 5 December 2017 and related clinical notes.
As we discuss further below, the Tribunal placed too much emphasis on the findings of the Dental Council in dismissing the application and failed to properly apply the requisite test under s 60 of the ACL as to whether the services provided by the respondent were provided with due care and skill.
At [74] of Micaleff, the Appeal Panel referred to and set out a lengthy extract from the decision of Beazley JA (as her Honour then was and with whom Giles JA and Tobias JA agreed) in Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 at [68] to [78]. Since the extract is quite long, we have paraphrased and summarised below those parts of Hancock and the authorities set out by the Appeal Panel at [68] to [78] of its decision that are of particular relevance to the matters under consideration by us in this appeal:
1. In Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96, Hodgson and McColl JJA noted at [66] that it is inherent in the process of preparing many expert reports that the factual basis for the opinion expressed is derived from third party information. Courts require the factual bases of opinions be clearly laid out so that the opinion of the expert may be properly tested: see also Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Limited [2002] FCAFC 157; (2002) 55 IPR 354; Adler & Anor v ASIC [2003] NSWCA 131; (2003) 46 ACSR 504.
2. In ASIC v Rich & Ors [2005] NSWCA 152; (2005) 218 ALR 764 (ASIC v Rich), an issue arose as to the basis upon which an expert could express an opinion. The resolution of this issue involved Spigelman CJ (with whom Giles and Ipp JJA agreed) undertaking a detailed analysis of the underlying basis of Heydon JA's reasoning in Makita, by reference in particular, to the reasoning of Gleeson CJ in HG v R [1999] HCA 2; (1999) 197 CLR 414 (HG) to which Heydon JA had made extensive reference in Makita.
3. Gleeson CJ stated in HG at [41], that such expert evidence required identification of the facts the expert was assuming to be true, so that they could be measured against the evidence. Beazley JA described this as "a principle of long standing" and referred to the High Court's decision in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85, at [9], where the Court (Mason CJ, Wilson, Brennan, Deane and Dawson JJ) said:
It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence: Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642. But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. (emphasis added by Beazley JA)
1. Heydon JA said in Makita at [66] that Ramsey v Watson was a classic illustration of the principle that the " assumed facts " need not be itemised by the expert witness in an artificial way and referred to the following observation in Ramsay v Watson:
... it was permissible for a doctor to narrate the history obtained from a patient as part of the foundation of the doctor's opinion on the patient's health, even though the narration was not admissible to prove the facts of the history unless some exception to the hearsay rule were satisfied.
1. Notwithstanding that an expert may give an opinion on assumed facts, the High Court in Ramsay v Watson observed at 649, that if the history obtained by the doctor and upon which the doctor based her or his expert opinion is not supported by admissible evidence, the opinion "may have little or no value, for part of the basis of it is gone".
2. In ASIC v Rich, Spigelman CJ concluded at [105]:
The focus of attention - the 'prime duty' - is to ensure that the court, as the tribunal of fact, is placed in a position where it can examine and assess the evidence presented to it. That can occur without adopting the true factual basis approach. What Heydon JA identified [in Makita] as the expert's 'prime duty' is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed." (emphasis added by Beazley JA)
Based on the above discussion in the authorities, and in particular the passages from the decision of the High Court set out above in Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, the reason given for the Tribunal forming the view that only Dr Telford was "truly independent" was mistaken. It was for the Tribunal to determine whether the opinions expressed by both experts were properly based on the facts, admissible evidence and a proper reasoning process identified in their reports to justify their opinions. The Tribunal failed to undertake that task.
In relation to the refurbished lower denture, the following sequence of events is recorded in the respondent's clinical notes (with our understanding of the meaning of abbreviations and terminology in square brackets):
29 June 2017 - 012 Examination periodic 44 and 43 needs to be exod [extracted] 44 draining [of an abscess]. Quote for new upper denture and recommend building lower up for time being;
10 August 2017 - try in [presumably the mould for the new upper denture];
15 August 2017 - issue upper denture 10 teeth and 2 clasps;
21 August 2017 - adjust palate at pt [patient] request warn re suction;
29 August 2017 - ... no brushing and rinsing for the rest of the day. Mouthrinse from the nest [sic] day. Painkillers as req'd [required] ... Imp [implant] denture A3 vit [vita shade guide] acrylic Bite reg [registration - ie impression] with triad [light cured acrylic] to align arches.
30 August 2017 - 712 Full Lower Denture
5 September 2017 - pt [patient] very unhappy with fit Feels it is to [sic] loose and rocking Adjust and send to Bill [dental technician] Rec refunding patient Rang patient and offer money back as Manly prosthetist offered to do new denture with refitting implant attachments for $1600. Cheque given."
There is no reference to both T43 and T44 being "hopeless". There is no reference to the respondent advising the appellant that "the prognosis of tooth 44 and 43 was therefore hopeless". The respondent's evidence to this effect was disputed. The finding made by the Tribunal [11(6)] to this effect was not supported by the clinical notes and was founded on the disputed evidence of the respondent.
There is no record of informed consent in the respondent's clinical notes. Dr Colman also makes this comment in his first report.
The appellant's position is that the respondent did not inform her of any treatment options. She said in her oral evidence:
And the lack of effective communication in relation to my treatment options is exactly the root of my issues with the respondent. As her patient, I was not fully informed about my treatment options and the consequences.
and
Because the two teeth that were taken out they have to be replaced with an implant, because food gets under the denture and I can't eat with it ...
We have had regard to the exchanges between the parties and their evidence before the Tribunal by reference to the parties' respective versions of the transcript.
Notwithstanding the difficulties with the some of the parties' answers being inaudible, it is clear that there was a dispute between the parties in their oral evidence as to whether the appellant was informed of certain things by the respondent in relation to the treatment to be undertaken by the respondent involving a refurbished lower denture and the extraction of T43 and T44 and then whether implants would be needed.
The Council recorded its concern regarding the respondent's "lack of discussion of treatment options" and directed the respondent to undertake counselling "to enhance and improve her professional practice". The poor record keeping associated with the respondent's clinical records was another matter of which the Council expressed its concern and directed the respondent to undertake counselling.
This was an important aspect of the case that the Tribunal failed to properly consider. This was not because of any finding or comment made by the Council but because of the approach which should have been undertaken by the Tribunal in assessing disputed evidence where there is evidence of a contemporaneous record of events.
In Bakovski v Lenehan [2014] NSWSC 671 (Bakovski), Hall J held that the failure by a solicitor (Mr Arkoudis) to follow the well established and prudent practice by solicitors to make file notes was itself evidence of a lack of prudence and the absence of a careful approach. This is particularly the case where a client is determined to act contrary to the advice purportedly given by a professional.
His Honour observed at [393] of Bakovski:
The content of oral communications, so far as possible, should be determined by reference to contemporaneous documentation such as file or other memoranda, emails or other correspondence. In this case, the fact that Mr Arkoudis did not make a record of information or advice he says he provided the plaintiffs at the conference (and the fact that the plaintiffs also do not have any record of what was discussed) leaves the resolution of the disputed matters to be undertaken by analysis of the affidavit and oral evidence given by the parties with due attention to any objective facts or matters that assist in determining which version of events should be accepted as the plausible and correct one.
Hall J found that the absence of any file note recording "strong advice" was consistent with none having been given: at [464].
In our opinion, and adopting the approach of Hall J in Bakovski set out above, the Tribunal failed to take into account the relevance of the clinical notes that did not support the respondent's version of events. Accordingly, the Tribunal erred. The weight of the evidence when properly considered supported the appellant's version of events over that offered by the respondent given the lack of corroboration of the respondent's account in her own clinical records.
These were all matters of considerable relevance which the Tribunal failed to take into account when assessing the reliability, credibility and probative value of the evidence, both lay and expert.
There was no evidence to support those instructions or Dr Telford's reliance upon them. This was an importance aspect of the discussion in Makita at [85] that we have set out above.
Rather, the evidence is to the contrary. The appellant was charged and paid $1,550 (item 712) for a "complete lower denture". It was this amount that was voluntarily refunded by the respondent on the recommendation of "Bill", the dental technician. This anomaly in the evidence was explained by the respondent at the hearing before the Tribunal as "just an item number" so that the appellant would get a better rebate from her private health insurer. That evidence cannot be accepted. Quite simply, the respondent's clinical note is false. However, it belies any suggestion that the appellant did not want or could not afford a full lower denture which was the crux of Dr Telford's opinion and conclusions.
Both experts agreed that the lower denture supplied by the respondent was unsatisfactory. Dr Colman in his first report said that the treatment was unsuccessful because the "new" denture was retrofitted (while charging for a full lower denture which is what should have been done according to Dr Telford). Dr Colman said:
It was unsuccessful because the new dentures issued by Dr van de Merwe was retrofitted by her dental technician, with the housing keepers from the old denture in one block, instead of thinking each small diameter implant individually with a housing keeper. This was later done successfully by Dr Hughes individually.
Dr Telford in his first report said:
As noted above, the lower denture supplied by Dr van de Merwe on the August 30th 2017 was not 'new' but a refurbishment of an old denture with a retrofitted procedure, and as such, was fraught with difficulties. Mrs Wickremeratne should have complied with Dr van de Merwe's prescription of a new denture at this stage. (emphasis in the original)
There is no evidence in the clinical notes that these risks and difficulties were properly or fully conveyed to the appellant. The appellant's evidence is that they were not explained to her.
The evidence of Dr Telford when properly considered supports the appellant's case that the refurbished denture once the two remaining teeth were removed was ill-fitting. Dr Telford said that the refurbishing the old denture was "fraught with difficulties". He assumed or accepted on his instructions that a new denture was prescribed by the respondent but was rejected by the appellant solely for reasons of cost. There is no clinical note to corroborate Dr Telford's only explanation to justify the respondent's services.
The evidence is that the appellant was in fact charged and paid for the entire cost of a full lower denture. The Tribunal failed to dealt with Dr Telford's unproven assertion that it was the appellant's decision to reject "Dr van de Merwe's prescription of a new denture" for reasons of cost.
Dr Telford then builds on this theme of cost savings based on his unproven instructions, causing him to further speculate on matters and opining, contrary to the evidence in the clinical notes:
There can only be one logical reason as to why De [sic] van de Merwe refunded the cost of the refurbished lower denture which is that she, Dr van de Merwe, was expressing sympathy to this poor woman's demise.
According to the respondent's clinical notes of 5 September 2017 set out above, the refund was not requested by the appellant and followed the respondent speaking to the dental technician (Bill) who recommended refunding the appellant. Further, according to the appellant's account of the respondent's telephone message about this, the respondent said:
I spoke with Bill and I think what I am going to do is just refund you the money and you go to the guy in Manly to start from scratch because I just don't think we are going to get there... I just don't think I'm going to make it with Bill um, the way I wanted to have it.
Significantly, "Bill" did not provide evidence on behalf of the respondent before the Tribunal. More importantly however, Dr Telford ignored the significance of that refund being for the cost of a full lower denture as per the respondent's own clinical notes and mistakenly referred to it as a refund for just the cost of a refurnished lower denture.
We are of the view that the Tribunal failed to properly consider the opinions of Dr Telford based on the evidence before it and took into account significant matters that were irrelevant and unproven in accepting the opinion of Dr Telford.