Advanced Arbor Services Pty Limited v Phung

[2009] NSWSC 1331

CITATION:	Advanced Arbor Services Pty Limited v Phung [2009] NSWSC 1331
HEARING DATE(S):	25 March 2009, 26 March 2009, 27 March 2009
JUDGMENT DATE :	2 December 2009
JUDGMENT OF:	Johnson J at 1
DECISION:	Verdict for the Plaintiff with costs (see [138]).
CATCHWORDS:	WORKERS COMPENSATION - insurance - worker suffers workplace injury - worker is trainee under Australian Traineeship System - worker referred to dentist for treatment - dentist performs unnecessary and excessive treatment - treatment so inexcusably bad as to constitute novus actus interveniens - payments made to dentist by insurer - action by insurer in name of employer to recover monies paid to dentist - whether proceedings may be brought in name of employer - subrogation - restitution/unjust enrichment - contract - misleading or deceptive conduct - relief granted
LEGISLATION CITED:	Workers Compensation Act 1987 Dentists Act 1989 Dental Practice Act 2001 Civil Procedure Act 2005 Workers Compensation Legislation Amendment (Trainees) Act 2003 Government Insurance Office (Privatisation) Act 1991 Government Insurance Act 1927 NSW Self Insurance Corporation Act 2004 Workers Compensation Legislation Amendment Act 1998 Workplace Injury Management and Workers Compensation Act 1998 Workers Compensation Legislation Further Amendment Act 2001 Trade Practices Act 1974 (Cth) Fair Trading Act 1987 (NSW) Civil Liability Act 2002 Health Care Complaints Act 1993
CATEGORY:	Principal judgment
CASES CITED:	Dean v Phung [2009] NSWSC 201 Mahony v J Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522 WorkCover Queensland v Seltsam Pty Limited (2001) 53 NSWLR 518 King v Victoria Insurance Company Limited [1896] AC 250 ICI Australia Operations Pty Limited v WorkCover Authority of NSW (2004) 60 NSWR 18 Franklins Self-Serve Pty Limited v Wyber (1999) 48 NSWLR 249 David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353 Esso Petroleum Co Limited v Hall Russell & Co Limited [1989] AC 643 Norwich Union Fire Insurance Society Limited v William H Price Limited [1934] AC 455 Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221 South Australian Cold Stores Limited v Electricity Trust of South Australia (1957) 98 CLR 65 Kelly v Solari (1841) 9 M & W 54; 152 ER 24 Banque Financiere de la Cite v Parc (Battersea) Limited [1999] 1 AC 211 Scottish Equitable Plc v Derby [2000] 3 All ER 793 Taylor v Smith (1926) 38 CLR 48 Astley v Austrust Limited (1999) 197 CLR 1 Sagacious Procurement Pty Limited v Symbion Health Limited [2008] NSWCA 149 Ulan Coal Mines Pty Limited v Hunter Area Health Service [1999] NSWSC 664 Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 Houghton v Arms [2006] 225 CLR 553; HCA 59 National Exchange Pty Limited v ASIC [2004] FCAFC 90 March v Stramare (E & MH) Pty Limited (1991) 171 CLR 506 Trident General Insurance Co Limited v McNiece Bros Pty Limited (1988) 165 CLR 107 Hedley Byrne & Co Limited v Heller & Partners Limited [1964] AC 465 Mutual Life & Citizens’ Assurance Co Limited v Evatt (1968) 122 CLR 556
TEXTS CITED:	Derrington and Ashton, “The Law of Liability Insurance”, 2nd edn, 2004 Leigh-Jones, Birds and Owen, “MacGillivray on Insurance Law”, 11th edn, 2009
PARTIES:	Advanced Arbor Services Pty Limited (Plaintiff) Mark Phung (Defendant)
FILE NUMBER(S):	SC 20006/08
COUNSEL:	Mr SG Campbell SC; Mr MJ Walsh (Plaintiff) Mr D Nock SC; Mr A Hourigan (Defendant)
SOLICITORS:	Turks Legal (Plaintiff) Guild Legal Limited (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

Johnson J

2 December 2009

20006/08 Advanced Arbor Services Pty Limited v Mark Phung

JUDGMENT

1 JOHNSON J: By Statement of Claim filed 17 January 2008, the Plaintiff, Advanced Arbor Services Pty Limited, seeks to recover from the Defendant, Mark Phung, payments made under the Workers Compensation Act 1987 (“WC Act”) with respect to dental services provided to Todd Dean, an employee of the Plaintiff.

2 At all relevant times, the Defendant was a registered dentist under the Dentists Act 1989 or the Dental Practice Act 2001.

3 As will be seen, the worker’s compensation insurer of the Plaintiff is suing under its claimed subrogated right in the name of the employer. This state of affairs gave rise to a number of submissions, which will be explored later in this judgment.

4 Mr Dean has commenced separate proceedings in this Court against the Defendant for damages (20571/08). On 11 March 2009, Hall J ordered that the issue of liability in the two sets of proceedings be heard at the same time: Dean v Phung [2009] NSWSC 201. The hearing of the two matters came before me on 25 March 2009 and continued on 26 and 27 March 2009. In the course of the hearing, an admission of liability was made by the Defendant with respect to the proceedings brought against him by Mr Dean (T112). Agreement was reached as to the orders to be made to progress that litigation (T112, T123). I will deliver a short separate judgment in those proceedings, which will be handed down at the same time as judgment is given in the present proceedings.

Issues in the Proceedings

5 Three issues arise for determination in these proceedings.

6 The first issue concerns the injury sustained by Mr Dean and the treatment subsequently provided to him by the Defendant. Following discussion with Mr SG Campbell SC, for the Plaintiff, and Mr Nock SC, for the Defendant, concerning the real issues in dispute in the proceedings, an admission was made by the Defendant under s.70(1)(c) Civil Procedure Act 2005 to the following effect (T28):

“That treatment and advice provided by the defendant to Mr Todd Dean was so inexcusably bad as to constitute a novus actus interveniens as to terminate the relationship between the injury sustained by Mr Dean on 19 December 2001 and the consequences of the treatment provided to Mr Dean by the defendant.”

As will be seen, I have made a finding along these lines, in any event, arising from the powerful body of evidence tendered by the Plaintiff on this issue and the absence of any countervailing evidence from the Defendant.

7 At [11]-[42] of the judgment, I make findings concerning the first issue. These findings also serve to explain the factual background to the proceedings.

8 The second issue concerns the identity of the Plaintiff, and whether it is the appropriate party to seek recovery of payments made to the Defendant for treatment of Mr Dean. This issue is considered at [46]-[75] of the judgment.

9 The third issue arises in the event that the proceedings are properly brought in the name of the Plaintiff. It will be necessary to consider whether the Plaintiff has made good any of the causes of action relied upon to obtain relief against the Defendant. This issue is considered at [77]-[128] of the judgment.

10 The only witnesses called at the hearing were Mr Dean, Jennifer Howard (a former employee of GIO General Limited) and David Beattie (a tree surgeon and arborist who was and remains the director and controlling mind of the Plaintiff company) (T101).

Factual Findings Concerning Mr Dean’s Injury and Treatment by the Defendant

11 In November 2001, Mr Dean commenced employment as a labourer with the Plaintiff. His work involved tree lopping and tree trimming at various locations in Sydney.

12 In December 2001, Mr Dean signed an application to become part of the Australian Traineeship System. He signed a certificate and indenture of traineeship with the Plaintiff as his employer.

13 On 19 December 2001, Mr Dean had an accident at work. Whilst pushing branches into a chipper at a worksite at Bexley, a small log jumped out of the chipper and struck him on the chin. Mr Dean observed some blood and a tooth fragment in his mouth, together with a cut on his tongue. He rinsed his mouth with salt water and spat out a few chips of teeth and then returned to work for the rest of the day (T91-92).

14 Mr Dean continued to work up to Christmas 2001, experiencing no difficulty in performing tasks other than some pain in his mouth. During the January 2002 holiday period, Mr Dean experienced some pain in his teeth. He had no dental health issues prior to suffering the workplace injury on 19 December 2001.

15 In January 2002, Mr Dean commenced to complain about a sore mouth and teeth to Mr Beattie, a director of the Plaintiff. Mr Beattie made contact with the Defendant, a dentist whom Mr Beattie had attended previously, to arrange an appointment for Mr Dean in regards to his workplace injury. Mr Beattie told the Defendant that he had an employee who had injured his mouth at work and who was complaining of a sore mouth and sore teeth, and he requested the Defendant to treat him. The Defendant agreed and Mr Beattie told him that it was a worker’s compensation matter and that Mr Dean would come and see him, but that Mr Dean would not have to pay any bills, with the bills to be paid by the Plaintiff’s insurance company (T104-105). Mr Beattie requested Wayne Fitzsummons, an employee of the Plaintiff, to make an appointment for Mr Dean to see the Defendant and this was done.

16 Mr Dean attended the Defendant’s dental surgery for the first time on 16 January 2002.

17 A worker’s compensation claim form dated 24 January 2002 was completed by Mr Dean and the Plaintiff for the workplace injury (Exhibit D, pages 43-44). The Plaintiff made a claim to GIO General Limited for the workplace injury. On the claim form, the Plaintiff was listed as the employer.

18 By letters dated 1 February 2002 on the letterhead of the New South Wales Treasury Managed Fund (“TMF”), said to be “Managed by GIO General Limited”, Ms Ruth Woodland, TMF Scheme Manager, Workers Compensation, notified the Plaintiff and Mr Dean that liability for the claim for worker’s compensation for the workplace injury was accepted. The letters explained that this “means we will pay reasonable and necessary medical, hospital and associated expenses for the worker” (Exhibit D, pages 50-51).

19 These letters described the employer as “Australian Traineeship System”. However, it is clear on the evidence that this information comes from the computer system which “pre-populates” the document (Howard, T46-47) and is not a true indication of the name of the employer.

20 It was the evidence of Ms Howard, an insurance officer at GIO General Limited between 1980 and 2006, that the Plaintiff’s insurance policy was managed by GIO General Insurance as an agent for the New South Wales Insurance Ministerial Corporation, and payments were made out of Consolidated Revenue, known as the TMF (T36, 37). This is consistent with the documentary evidence regarding the worker’s compensation claim - the documents and claim forms had either the GIO General emblem, or the TMF emblem with a qualifier that read “managed by GIO General Limited”.

21 Ms Howard gave evidence that, in 2001, she handled the administration of claims under the Australian Traineeship System, including the claim in relation to Mr Dean’s workplace injury. She explained that under the Australian Traineeship System “the actual employers were businesses from all across the State [NSW]” (T38). I am satisfied from Ms Howard’s evidence that the Plaintiff was Mr Dean’s employer for the purposes of the Australian Traineeship System.

22 On 2 February 2002, the Defendant referred Mr Dean to Mayne Health Diagnostic Imaging, which issued a tax invoice to the Plaintiff dated 8 February 2002.

23 The Defendant treated Mr Dean on numerous occasions in 2002 and 2003. The Defendant stated in telephone conversations and billing documents that this treatment was reasonably necessary as a result of Mr Dean’s workplace injury on 19 December 2001.

24 From January to June 2002, the Defendant issued memoranda of fees to the Plaintiff and/or Mr Dean for dental services provided to Mr Dean as follows:

(a) 16 January 2002 in the sum of $400.00;

(b) 1 February 2002 in the sum of $3,000.00;

(c) 16 March 2002 in the sum of $2,550.00;

(d) 26 March 2002 in the sum of $3,450.00;

(e) 27 May 2002 in the sum of $7,150.00;

(f) 4 June 2002 in the sum of $4,700.00.

25 From February to July 2002, payments were made by TMF to the Defendant for the dental services listed in the preceding paragraph, with the exception of the sum of $7,150.00 billed on 27 May 2002. On 16 August 2002, TMF paid the Defendant the sum of $7,150.00.

26 On 19 July 2002, the Defendant provided a report concerning Mr Dean (Exhibit D, pages 68-69). The report cited the TMF claim number for Mr Dean’s workplace injury of 19 December 2001.

27 On 17 September 2002, the Defendant sent a letter to GIO Workers Compensation, with the TMF claim number for Mr Dean again being cited (Exhibit D, pages 73-74). A memorandum of fees for a further sum of $28,740.00 was enclosed for work performed on Mr Dean on 11 July 2002 and 14 September 2002.

28 On 29 October 2002, the sum of $28,740.00 was paid by TMF to the Defendant.

29 From October 2002 to February 2003, the Defendant issued the following memoranda of fees concerning his treatment of Mr Dean:

(a) 2 October 2002 in the sum of $7,150.00;

(b) 13 December 2002 in the sum of $6,500.00;

(c) 6 February 2003 in the sum of $10,000.00.

30 On 8 April 2003, the Defendant sent a letter concerning Mr Dean, again citing the TMF claim number (Exhibit D, pages 110-111).

31 On 19 June 2003, payment was made by TMF to the Defendant in the sum of $23,650.00 in response to the memoranda of fees for October 2002 to February 2003 referred to at [29] above.

32 Ms Howard gave evidence concerning payments made to the Defendant arising from dental services provided to Mr Dean. The claim relating to Mr Dean was referred to the Orange office of GIO General Limited, where Ms Howard worked, as that office dealt with all insurance for trainees under the Australian Traineeship System.

33 In due course, Ms Howard arranged for Mr Dean to be independently examined by Dr Andrew Howe, consultant dentist. Dr Howe examined Mr Dean on 10 April 2003. A file note on the GIO General Limited/TMF file records a telephone call from Dr Howe on 14 April 2003 during which Dr Howe observed that this was “a complete case of fraud … by the dentist”. Reference was made to the “extremely poor dentistry job” on Mr Dean and it was said that details would be in Dr Howe’s report (Exhibit D, page 114). Dr Howe sent a report dated 14 April 2003 to GIO General Limited/TMF (Exhibit D, pages 119-123). Dr Howe reported that, on examination, there were “twenty eight metal ceramic crowns in the occlusion they are generally poorly performed and many are missing porcelain due to grinding and chipping of the crowns” and that “many of the crowns have poor marginal fit and contour” (Exhibit D, page 120). Dr Howe observed that he found it “quite impossible to believe that Mr Dean fractured 28 teeth in the accident” (Exhibit D, page 121). Dr Howe concluded (Exhibit D, page 122):

“I find it difficult to believe that Mr Dean suffered the devitalization and fracture of every tooth in his mouth in what must have been a minor injury. It would appear that he did receive some form of injury to some teeth.”

34 It will be observed that the information from Dr Howe was received in April 2003, before the payment to the Defendant on 19 June 2003. The Defendant provided a report dated 8 April 2003 to GIO General Limited/TMF, which was received on 15 April 2003 (Exhibit E; T57-58).

35 Ms Howard gave evidence, which I accept, that she was concerned by the information from Dr Howe in April 2003, but considered that the obligation to pay the Defendant’s memoranda of fees continued as liability had been accepted, and that further treatment was required by Mr Dean (T59-60). Ms Howard explained her belief (T60.40):

“Q. Can you tell me why you believed that?
A. I believed that because sometimes patients receiving medical treatment don't have good outcomes. They might even have additional problems as a result of some treatment given, and that the liability for that further treatment rests with the insurer, because they are still liable for that injury.”

36 Ms Howard said that she “was sure that we were still liable for [Mr Dean’s] further treatment” (T61). Ms Howard explained why payment was made to the Defendant after April 2003 (T63.14):

“Q. It is accepted that those payments were made after April 2003?
A. Yes.

Q. Why were those payments authorised to be made?
A. The payments were authorised to be made because the worker incurred these expenses at a time when the claim was accepted, and there was an understanding that the GIO was paying for his dental treatment. If we promised to pay for certain treatment, we couldn't then say no, we are not going to pay you once we got the bill.

Q. And was that your understanding as a senior person in the GIO at Orange of the legal position in relation to Mr Dean's entitlement?
A. Yes.”

37 I return to this topic later in the judgment (at [91]ff). For present purposes, it is sufficient to record my finding that GIO General Limited/TMF made payment to the Defendant in June 2003, believing that there was an obligation to do so because of the acceptance of liability and the provision of reports by the Defendant concerning Mr Dean. Although Dr Howe’s telephone call and report raised real issues concerning the extent of treatment being provided by the Defendant to Mr Dean, the view was taken that all of this stemmed from some injury suffered in the workplace which saw Mr Dean attending the Defendant in the first place. This view may be fairly characterised as a mistake in law. The June 2003 payment was made to the Defendant in the mistaken belief that he was entitled to the payment as part of the acceptance of liability by the insurer.

38 Following June 2003, the nature and extent of the Defendant’s inappropriate work performed on Mr Dean became entirely clear.

39 The Defendant’s treatment included removing the nerves from all of Mr Dean’s teeth, reducing all the teeth and placing crowns on all of the 28 teeth in Mr Dean’s mouth. Unchallenged expert dental evidence from a general dental practitioner and a specialist prosthodontist is highly critical of the dental treatment provided by the Defendant to Mr Dean. By way of example, Dr Howe, consultant dentist, in a report of 5 July 2007 observed at pages 10-11:

“It is extremely unlikely that any of the dental services provided by Dr Phung were necessary.
Personally I believe that none of the dental services provided by Dr Phung were accident related.
The standard of treatment provided by Dr Phung fails to meet an acceptable standard. The standard of endodontic treatment and crown treatment provided do not meet an acceptable standard of care. The occlusion provided by the occlusal tables of the crowns is poor and many teeth have had the porcelain removed from the occlusal surface and no stable occlusal position is achievable. The fit of the crowns is poor and there is no possible merit in splinting the crowns together this is not regarded as acceptable treatment and makes cleaning difficult and predisposes to periodontal problems.
It is my belief that all the endodontic treatment will need to be replaced and all the crowns that have been placed will need replacement immediately.

There are twenty-eight metal ceramic crowns they are generally poorly performed and many are missing porcelain due to grinding and chipping of the crowns. Many of the crowns have poor marginal fit and contour. Most of the teeth are splinted together or in groups of 3 this varied from the standard of an ordinary skilled dentist.
…
The total ongoing care for Mr Dean’s dentition is as a result of Dr Phung’s treatment. Mr Dean will require meticulous cleaning and maintenance and ongoing replacement of the crowns now replacing Mr Dean’s natural dentition. I believe that this is a result of Dr Phung’s treatment that varied from the standard of an ordinary skilled dentist.

All of Dr Phung’s treatment for Mr Dean would be described as inexcusably bad and completely outside the bounds of what any reputable dental practitioner might prescribe or perform. The treatment was obviously unnecessary and improper and it is the nature of a gratuitous aggravation of any existing injury.”

40 Dr Neil Peppitt, consultant prosthodontist, examined Mr Dean. In a report dated 9 October 2003, Dr Peppitt described the case of Mr Dean as an “amazing case”. In a later report dated 7 January 2008, Dr Peppitt was highly critical of the Defendant’s treatment of Mr Dean (page 3):

“The fees charged by Dr Phung whom I understand to be a general dental practitioner were well in excess of both the national and state average for fees charged by general dental practitioners at the same period.
…
In my review of the dental literature I have not come across a case where minor trauma, in this case a blow to the chin, necessitated all teeth having their nerves removed due to a diagnosis of irreversible pulpitis.
…
This case was never referred by Dr Phung for specialist review. I find it difficult to understand how Dr Phung could proceed to remove every nerve of every tooth in the patient’s head without wishing to confirm his diagnosis and treatment regime with a specialist endodontist or someone experienced in managing facial pain. In 25 years as a Specialist Prosthodontist with a subspecialty of facial pain management I have never experienced or read of in the literature a treatment plan of this nature.
…
All the root canal therapies performed by Dr Phung were inadequate and needed to be redone.
…
Dr Phung’s original diagnosis and subsequent treatment by itself resulted in permanent disability to Mr Dean’s mouth. Mr Dean had very little in the way of dental disease or previous dental treatment when he first attended Dr Phung. He has now a full mouth reconstruction and will need ongoing maintenance for the rest of his life and in many ways can be described a dental cripple.
…
… it is my opinion that worst-case treatment scenario for Mr Dean following his initial workplace injury would have been root canal therapy to 3 teeth. Mr Dean has in fact had 28 root canal therapies. 25 teeth, by my estimate, have been over treated. Mr Dean had every nerve, artery and vein within every tooth in his head amputated.
…
The simple fact that Mr Dean now has a full mouth reconstruction will probably preclude him from general dental care and restrict him to specialist care for the rest of his life. The average general dental practitioner would not attempt a full mouth reconstruction without adequate training. That training is only to be obtained in postgraduate education and is not provided in a general dental degree.”

41 The Defendant did not give evidence at the hearing, nor did he adduce any expert evidence, and these strong criticisms of the treatment given to Mr Dean were unchallenged. It was against this background that the Defendant came to make the admission referred to at [6] above under s.70(1)(c) Civil Procedure Act 2005. I am satisfied that:

(a) the Defendant’s treatment of Mr Dean was not reasonably necessary as a result of the workplace injury on 19 December 2001: s.60 WC Act;

(b) the standard of treatment provided by the Defendant to Mr Dean fell so far below proper professional standards as to be grossly negligent or inexcusably bad, as that term is to be understood from the decision of the High Court of Australia in Mahony v J Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522 at 530;

(c) the departure from proper professional standards by the Defendant was, in any event, such as to require replacement of all the dental treatment provided by the Defendant to Mr Dean, even if it was the case that some part of that treatment was referrable to the workplace injury;

(d) the treatment and advice provided by the Defendant to Mr Dean was so inexcusably bad as to constitute a novus actus interveniens, so as to terminate the relationship between the injury sustained by Mr Dean on 19 December 2001 and the consequences of the treatment provided to Mr Dean by the Defendant.

42 Payments in a total amount of $73,640.00 have been paid to the Defendant, for the Plaintiff’s liability to Mr Dean pursuant to s.60 WC Act in regard to the workplace injury. Mr Dean has also had extensive time off work to undergo dental treatment with the Defendant, for which compensation payments have been made to Mr Dean. The Defendant admits that Mr Dean will require further dental treatment to rectify the Defendant’s protracted, intrusive and largely destructive work carried out in Mr Dean’s mouth.

Submissions of Parties Concerning the Plaintiff’s Employment of Mr Dean and the Plaintiff’s Workers Compensation Insurance Arrangements

43 The parties made detailed written and oral submissions on these issues.

44 In summary, the Plaintiff submitted that:

(a) the Plaintiff was required to hold a policy of insurance for its liability under the WC Act for injury to a worker as mandated by s.155 WC Act;

(b) Mr Dean was a worker employed by the Plaintiff and was also a trainee as defined in s.158 WC Act;

(c) as at December 2001, the legislation deemed the employer of a trainee to hold a policy of insurance with the New South Wales Insurance Ministerial Corporation for the full amount of the employer’s liability under the WC Act in respect of the trainee for any relevant injury: s.158(3) WC Act;

(d) the consequence of Mr Dean being a worker employed by the Plaintiff and a trainee under the Australian Traineeship System, meant that:


(i) the Plaintiff was liable to pay compensation for injury to Mr Dean under the WC Act,

(ii) the Plaintiff’s compulsory insurance required by s.155 WC Act was by way of indemnity insurance provided by the New South Wales Insurance Ministerial Corporation at the time of the accident, and subsequently by its legal successor, the New South Wales Self Insurance Corporation, pursuant to s.158 WC Act,

(e) the principles of subrogation permit the insurer to bring the present proceedings in the name of the Plaintiff, as employer, to recover sums of money paid to the Defendant in the circumstances of this case.

45 In summary, the Defendant submitted that:

(a) the payments made to the Defendant with respect to his treatment of Mr Dean were not paid by the Plaintiff, but by GIO General Limited or some other manifestation of the New South Wales Government such as the TMF;

(b) the Plaintiff was not entitled to recover the payments from the Defendant;

(c) in any event, the Plaintiff cannot rely upon s.158 WC Act as the section did not apply in respect of insurance for any period after 30 September 1999: s.158(11) (as amended in 1998);

(d) whatever arguments may be advanced in support of the claim that the Defendant ought repay the monies received by him for his treatment of Mr Dean, the Plaintiff had no standing to bring these proceedings, nor is the insurer entitled to bring these proceedings in the name of the Plaintiff;

(e) although the principles of subrogation were not challenged (T156), these principles did not assist the Plaintiff in this case.

Findings Concerning the Plaintiff’s Employment of Mr Dean and the Plaintiff’s Worker’s Compensation Insurance Arrangements

46 I accept the Plaintiff’s submissions on these issues. My reasons for so concluding are as follows.

47 I am satisfied that the Plaintiff was the employer of Mr Dean in and before December 2001.

48 The Plaintiff, as an employer, was required to hold a policy of insurance for its liability for injury to a worker as mandated by s.155 WC Act. However, s.158(2) WC Act provided that s.155 did not require an employer to obtain a policy of insurance in respect of a trainee.

49 Mr Dean applied to be part of the Australian Traineeship System in December 2001, prior to the occurrence of his workplace injury. As at 19 December 2001, a trainee was defined as “a person who is a trainee under a traineeship approved by the Industrial and Commercial Training Council of New South Wales for the purposes of the Australian Traineeship System”. Mr Dean was both a worker and a “trainee” as defined in s.158(3) WC Act.

50 As at 19 December 2001, s.158(3) and (4) WC Act provided:

“(3) The employer of a trainee shall be deemed to hold a policy of insurance with the Insurance Ministerial Corporation for the full amount of the employer’s liability under this Act.

(4) A policy of insurance deemed by this section to be held by an employer shall contain such provisions as are prescribed by the regulations.”

51 As at 19 December 2001, the applicable regulations were the Workers Compensation (General) Regulation 1995. Clause 53 of the Regulations related to “Trainees under Australian Traineeship System” and provided:

“A policy of insurance deemed to be held by an employer under section 158 of the Act must contain the provisions specified in Form 4 in respect of domestic or similar workers, subject to the omission of any reference to the payment of premiums for the policy and the making of a proposal in relation to the policy.”

52 Clause 5 of Form 4 in the Workers Compensation (General) Regulation 1995 provided relevantly:

“5. Insurer is directly liable to workers
The Insurer (as well as the Employer) is directly liable to any worker … to pay the compensation under the Act or other amount independently of the Act for which the Employer is liable and indemnified under this Policy. This means that a claim can be made and action taken directly against the Insurer.”

53 Clause 12 of Form 4 Workers Compensation (General) Regulation 1995 provided relevantly:

“12. Subrogation
The Insurer can use the name of the Employer in any proceedings to enforce, for the benefit of the Insurer, any order made for costs or otherwise. The Insurer has the right of subrogation in respect of all rights which the Employer may have against any person or persons who may be responsible to the Employer or otherwise in respect of any claim for any injury covered by this Policy. The Employer must execute such documents as may be necessary for the purpose of vesting any of those rights in the Insurer, as and when required to do so by the Insurer.”

54 Clause [8], Workers Compensation Legislation Amendment (Trainees) Act 2003 provided that:

”Section 158(2) of this Act (as in force immediately before its repeal by the 2003 amending Act) continues to have effect in relation to any person employed as a trainee immediately before that repeal until 31 December 2004, or to the end of the traineeship, whichever first occurs.”

55 The New South Wales Insurance Ministerial Corporation was constituted as a corporation by the Government Insurance Office (Privatisation) Act 1991, whereby the assets, rights or liabilities that were part of the business undertaking of the GIO (which was a body corporate incorporated under the Government Insurance Act 1927) were to be part of the new privatised corporation other than excluded undertakings (per s.24).

56 The NSW Self Insurance Corporation Act 2004 constituted the NSW Self Insurance Corporation as a body corporate to have the functions with respect to the operation of government managed fund schemes, and entering into insurance or other agreements. Schedule 1 Part 2 clause 2 provided that the NSW Self Insurance Corporation was a continuation of, and the same legal entity as, the New South Wales Insurance Ministerial Corporation that was constituted by the Government Insurance Office (Privatisation) Act 1991.

57 The NSW Self Insurance Corporation Act 2004 noted the continuation of the TMF which was "taken to be a government managed fund scheme subject to this Act" (per Schedule 1, clause 3).

58 These matters were summarised succinctly by Smart AJ in an interlocutory judgment on 9 February 2009 at [3]-[4]:

“3. While some of the documents bear the heading Treasury Managed Fund, it is not, as such, a legal entity. As a result of the combination of the Government Insurance Office (Privatisation) Act 1991 No 38 sections 4(1) (definition of Ministerial Corporation) 24 and 28 and NSW Self Insurance Corporation Act 2004 ss7(2)(c) and (d) and Schedule 1 clauses 2 and 3, NSW Treasury Managed Fund is taken to be a Government managed fund scheme subject to the latter Act and is subject to and part of NSW Self Insurance Corporation which is a continuance of and the same legal entity as NSW Insurance Ministerial Corporation constituted by the 1991 Act earlier mentioned.

4. While the Treasury Managed Fund and TMF were convenient descriptions for use in argument, the judgment and in the amended statement of defence as presently proposed, in view of the terms of the legislation where those descriptions are used in the pleadings, each should be taken as including a reference to NSW Self Insurance Corporation otherwise it may be necessary for the defendant to amend his pleading and that would involve unnecessary expense. It is apparent from the legislation (see especially s7(2) and 11 (2)(e)of the latter Act) that the NSW Self Insurance Corporation is a Workers' Compensation Insurer and that it operates via the Treasury Managed Fund, part of Consolidated Revenue. It also operates via GIO General Ltd. (See Spencer Bower, Turner and Handley, “The Doctrine of Res Judicata”, 3 ^rd edn, [169]-[171]).”

59 I am satisfied that, at the time of Mr Dean’s employment, the Australian Traineeship System created an insurance policy for the Plaintiff that arose under the statutory regime, and was sourced from the New South Wales Insurance Ministerial Corporation, managed by the GIO General Limited as the agent for that Corporation, and with payments being made out of consolidated revenue known as TMF. I am satisfied that the Plaintiff’s compulsory insurance, required by s.155 WC Act, was by way of a policy of indemnity insurance provided by the New South Wales Insurance Ministerial Corporation at the time of the accident, and subsequently by its legal successor, the NSW Self Insurance Corporation (pursuant to s.158 WC Act). I am also satisfied that, as a result, the Plaintiff was liable to pay compensation to Mr Dean under the WC Act.

60 The Plaintiff concedes that s.151Z WC Act has no application in this case.

61 The Defendant sought to rely on clause [72] Workers Compensation Legislation Amendment Act 1998 which provided that:

“Section 158 Insurance for trainees

Insert after section 158(10):

(11) This section does not apply in respect of insurance for any period after 30 September 1999.”

The Defendant submitted that, at the time of this accident, s.158 was in existence subject to the provisions of sub-section 11 which made this case fall outside s.158 by reason of its occurrence in 2002. Thus, it was submitted that the Plaintiff cannot rely on s.158 in respect of this accident, and must rely upon the general law relating to policies of insurance.

62 The Defendant further submitted that GIO General Limited was required to consider ss.274 and 279 Workplace Injury Management and Workers Compensation Act 1998. Section 274 of that Act related to claims for weekly payments, and provided that within 21 days of a claim being received, the person on whom the claim was made must either accept or dispute liability. Section 279 of that Act related to claims for medical expenses and provided that “Within 21 days after a claim for medical expenses compensation is made the person on whom the claim is made must determine the claim by accepting or disputing liability”, unless the employer has duly forwarded the claim to an insurer: s.279(2)(a).

63 I reject the Defendant’s argument that s.158 cannot be relied on by the Plaintiff in these proceedings. Clause [72] of the Workers Compensation Legislation Amendment Act 1998 came into force on 1 August 1998. However in September 1999, a subsequent amendment to clause [9] Workers Compensation Legislation Amendment Act 1999 provided that:

“Sections 158, 224B, 226 Omit ‘after 30 September 1999’ from sections 158(11), 224B (3), and 226(2) wherever occurring. Insert instead ‘the private insurance start time’.”

64 As at December 2001, when Mr Dean’s workplace injury occurred, s.158(11) WC Act provided that “this section does not apply in respect of insurance for any period after the private insurance start time”. In December 2001, s.3 WC Act provided “private insurance start time has the same meaning as in the Workplace Injury Management and Workers Compensation Act 1998”. Section 4 Workplace Injury Management and Workers Compensation Act 1998 provided that:

“private insurance start time means 4 pm on a day to be appointed by the Governor by order published in the Gazette for the purposes of this definition.”

65 The Workplace Injury Management and Workers Compensation Act 1998 was amended by the Workers Compensation Legislation Further Amendment Act 2001, and s.4 (including the definition of “private insurance start time”) was repealed. This amendment was retrospective to commence on 21 December 2001. As Mr Dean’s injury occurred on 19 December 2001 and, therefore, remains under the old provision, I am satisfied that the Governor never appointed a date for the “private insurance start time” and, as a result, s.158 WC Act applies for the purpose of this case.

66 I reject the Defendant’s submission with respect to ss.274 and 279 Workplace Injury Management and Workers Compensation Act 1998. I do not see that those provisions stand in the way of the Plaintiff’s claim in any respect.

67 The Plaintiff may rely upon the principle of subrogation in these proceedings. The Defendant’s argument that the compensation was paid by GIO General Limited on behalf of the New South Wales Self Insurance Corporation out of the TMF, so that the Plaintiff can establish no loss, should be rejected.

68 Clause 12 of Form 4 to the Workers Compensation (General) Regulation 1995 (at [53] above) expressly conferred upon the insurer the right of subrogation.

69 Even in the absence of the express right of subrogation, such a right would arise under the general law as an incident of the payment by the insurer pursuant to the deemed policy arising under s.158 WC Act.

70 Subrogation entitles an insurer to be put in the place of the insured, so that the insurer can take advantage of any means available to the insured to extinguish or diminish the loss for which the insurer has indemnified the insured: Derrington and Ashton, “The Law of Liability Insurance”, 2^nd edn, 2004, paragraphs 13-418ff, paragraph 22-001; Leigh-Jones, Birds and Owen, “MacGillivray on Insurance Law”, 11^th edn, 2009, paragraph 22-011. By indemnifying the insured against the loss, the insurer acquires the right to be subrogated to the position of the insured in order to exercise any of that party’s rights that would reduce the loss, whether such a right is contractual, tortious, legal or equitable: Derrington and Ashton, “The Law of Liability Insurance”, 2^nd edn, 2004, paragraph 13-418. It is a core matter of the right of subrogation that a person exercising that right must sue in the name of the insured: WorkCover Queensland v Seltsam Pty Limited (2001) 53 NSWLR 518 at 522-523 [19]-[23]; Derrington and Ashton, “The Law of Liability Insurance”, 2^nd edn, 2004, paragraphs 13-420. The insured must agree to lend its name to the action: King v Victoria Insurance Company Limited [1896] AC 250 at 256; Derrington and Ashton, “The Law of Liability Insurance”, 2^nd edn, 2004, paragraphs 13-420.

71 A payment by an insurer under workers compensation legislation is made in discharge of an employer’s liability, and is made by the insurer as statutory agent for the employer: ICI Australia Operations Pty Limited v WorkCover Authority of NSW (2004) 60 NSWR 18 at 76 [301]. Even a bona fide ex gratia payment by an insurer would entitle the insurer to be subrogated to the employer’s rights under the policy of insurance: ICI Australia Operations Pty Limited v WorkCover Authority of NSW at 76 [302]-[304].

72 I accept the Plaintiff’s submission that, as a result of s.158 WC Act, the Plaintiff had a deemed contract with the insurer with respect to Mr Dean. The legal effect of that contract, as a result of the policy of insurance, was that the Plaintiff’s rights can be subrogated to the insurer, for the purpose of recovery in the name of the Plaintiff.

73 I am satisfied that the insurer of the Plaintiff is entitled to bring these proceedings in the name of the Plaintiff.

74 I am satisfied that the insurance policy that covered Mr Dean under the Australian Traineeship System arose under the statutory regime and was sourced from the New South Wales Insurance Ministerial Corporation, managed by GIO General Limited. It is clear from the documents in evidence that GIO General Limited acted as agent for the insurer, and made payments to the Defendant on behalf of the insurer which, in turn, is entitled to bring these proceedings in the name of the Plaintiff.

75 I am satisfied that the present proceedings are properly brought in the name of the Plaintiff, whereby the insurer seeks to enforce rights in reliance upon the principle of subrogation.

The Plaintiff’s Causes of Action

76 The Plaintiff identified several causes of action, any one of which would see relief being granted. The Plaintiff pressed claims in contract, tort and restitution/unjust enrichment, together with claims under the Trade Practices Act 1974 (Cth) (“TPA”) and the Fair Trading Act 1987 (NSW) (“FTA”).

Restitution/Unjust Enrichment Claim

Submissions

77 The Plaintiff claimed an entitlement to a sum equivalent to the Defendant’s unjust enrichment. A claim for restitution requires:

(a) an element of benefit received, retained, realised or realisable by the Defendant;

(b) an element which provided the Plaintiff with title to make the claim, namely that the benefit was at the Plaintiff’s expense and not at the expense of some other person; and

(c) an element of injustice, that is some recognised circumstance showing that it was unjust, unfair, unconscionable or inequitable for the Defendant to obtain or retain the benefit.

78 With respect to benefit, the Plaintiff submitted that the Defendant had admitted receiving fees in the sum of $73,650.00 for the dental services provided to Mr Dean. The Plaintiff submitted that these monies were paid by or on its behalf pursuant to the deemed policy of insurance under s.158 WC Act. In addition, the Plaintiff submitted that the Defendant would receive a further benefit, being a deduction from any award of damages against him in the action brought by Mr Dean for professional negligence. Reliance was placed upon the rule against double satisfaction: Franklins Self-Serve Pty Limited v Wyber (1999) 48 NSWLR 249.

79 With respect to detriment, the Plaintiff submitted that monies paid by or on its behalf to the Defendant had been wasted or thrown away due to the Defendant’s default in regard to treatment of Mr Dean with respect to the Plaintiff’s liability under s.60 WC Act. It was submitted that the Plaintiff suffered further detriment through exposure in the future arising from its statutory obligations to Mr Dean under the WC Act.

80 The Plaintiff submitted that the payments to the Defendant were made by or on behalf of the Plaintiff, in the contract of representations by the Defendant to the Plaintiff and its insurer regarding his treatment of Mr Dean that:

(a) he was a competent dentist;

(b) he would provide dental services to the standard of an ordinary skilled dentist; and

(c) his treatment would be that which was reasonably necessary as a result of the workplace injury received by Mr Dean, being the Plaintiff’s liability pursuant to s.60 WC Act.

81 The Plaintiff submitted that the evidence established that the Defendant’s representations were false, whereby the payments made to him for and on behalf of the Plaintiff were:

(a) paid in reliance on those representations;

(b) in circumstances that the Defendant’s representations were false and negligent;

(c) payments to the Defendant by or on behalf of the Plaintiff were made under a mistake of fact and/or law concerning the Plaintiff’s liability pursuant to s.60 WC Act to make payments;

(d) made in circumstances of a total failure of consideration.

82 With respect to the prima facie entitlement to recover monies paid when a mistake of law or fact had caused such a payment, the Plaintiff relied upon David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353.

83 The Plaintiff submitted that its restitution claim concerned monies paid directly to the Defendant for his memoranda of fees, payments made to rectify the Defendant’s treatment and other worker’s compensation liability, both past and present, for the Plaintiff to Mr Dean.

84 The Plaintiff submitted that it had made a mistake in law, and a mistake in fact when it made the payments.

85 The Plaintiff submitted that the Defendant cannot rely on the insurer’s indemnification of the insured to claim that the insured has suffered no loss: Esso Petroleum Co Limited v Hall Russell & Co Limited [1989] AC 643 at 672; Derrington and Ashton, “The Law of Liability Insurance”, 2^nd edn, 2004, paragraph 13-421.

86 The Plaintiff submitted that the Defendant received monies unjustly, thereby satisfying the underlying concept identified by the High Court in Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221.

87 On the first day of the hearing, counsel for the Defendant conceded that his client had to pay the money back, but that the Defendant did not believe that the Plaintiff was the correct recipient of the monies (T20.15-20). I have found that the proceeding are properly brought in the Plaintiff’s name and have rejected submissions of the Defendant to the contrary.

88 On the final day of the hearing, the Defendant acknowledged that in light of the Defendant’s admission, GIO General Limited made the payments to the Defendant under a mistake (T137-138). It was submitted, however, that GIO General Limited had failed to check to ensure that proper payments were being made in accordance with the WC Act.

89 The Defendant submitted that GIO General Limited should be required to bear any loss resulting from the failure to properly consider the treatment being provided to Mr Dean, and that the Plaintiff should seek to recover the payments from GIO General Limited, and not the Defendant (T138).

90 The Defendant submitted that GIO General Limited continued to make payments, even after it had sufficient evidence by which it should have at least challenged making the payments, and as a result was negligent. Negligence was not pleaded by the Defendant in relation to the Plaintiff’s claim for restitution. However, it was raised in oral argument before me (T138, 141, 142) and I will address it in this judgment.

Decision

91 Mistake as to fact giving rise to legal liability to make a payment is the most common category of mistake: Norwich Union Fire Insurance Society Limited v William H Price Limited [1934] AC 455. So long as the Plaintiff’s mistake caused the payment, restitution is generally available.

92 In South Australian Cold Stores Limited v Electricity Trust of South Australia (1957) 98 CLR 65 at 74 it was said that mistake includes a belief as to the existence or non-existence of a state of affairs, factual or legal, which turns out to be mistaken. In the present case, the evidence suggests that GIO General Limited made payments on behalf of the TMF, because it trusted that the dental services being provided to Mr Dean were as a result of his workplace injury. It believed that the payments were being made under the deemed insurance policy applicable to the Australian Traineeship System.

93 It has long been accepted that forgetfulness or other negligence will not preclude recovery by a plaintiff whose mistake led to the payment: Mason and Carter, “Restitution Law in Australia, 2^nd end, 2008, paragraph [421].

94 In Kelly v Solari (1841) 9 M & W 54; 152 ER 24, an insurance company paid out a life insurance policy overlooking the fact that it had lapsed during the deceased’s lifetime for non-payment of premiums. This did not bar the right of recovery, although the court would have rejected the claim had it been established that the plaintiff had chosen to pay as a result of a conscious decision not to investigate the relevant facts carefully. Later cases such as Banque Financiere de la Cite v Parc (Battersea) Limited [1999] 1 AC 211 at 235 and Scottish Equitable Plc v Derby [2000] 3 All ER 793 have confirmed that the payer’s negligence does not affect the right of recovery. Where an agent mistakenly pays over money held for a principal, the principal may sue the recipient: Taylor v Smith (1926) 38 CLR 48; Mason and Carter, “Restitution Law in Australia, 2^nd end, 2008, paragraph [434].

95 In this case, the insurer made payments to the Defendant over a period of months in 2002 and 2003. The Defendant was representing to the insurer that the work being undertaken arose from the workplace incident. A point was reached where some consideration was given to the nature and extent of the claim and Dr Howe was asked to advise. Some payments were made thereafter to the Defendant. I have referred to the evidence and made findings in this respect (at [33]-[37] above).

96 It is necessary to have regard to the totality of the evidence. I am satisfied that all payments were made under mistake of fact with mistake of law also affecting the payments made after April 2003, in the sense that the insurer believed that it remained obliged to make the payments to the Defendant. In my view, none of these matters stand in the way of the Plaintiff’s recovery from the Defendant of monies paid to him, for which he had no proper entitlement.

97 I am satisfied that the Plaintiff has made out its claim for relief in restitution. Relief ought be granted to overcome what is, in my view, a clear case of unjust enrichment by the Defendant.

Contract Claim

Submissions

98 As the Plaintiff has made good its claim in restitution/unjust enrichment, the remaining causes of action may be considered briefly.

99 The Plaintiff alleges a contract with the Defendant, containing the following terms:

(a) the dental services given by the Defendant to Mr Dean were reasonably necessary treatment as a result of the workplace injury;

(b) the dental services provided by the Defendant to Mr Dean were reasonably fit for the purpose for which they were provided;

(c) the dental services provided by the Defendant to Mr Dean would be to the standard of an ordinary skilled dentist;

(d) the Defendant warranted that he was competent to perform the said dental services.

100 The Defendant denies any contract with the Plaintiff.

101 The Defendant submitted that the Plaintiff was not privy to any contract between Mr Dean and the Defendant. The Defendant relied on the High Court decision in Trident General Insurance Co Limited v McNiece Bros Pty Limited (1988) 165 CLR 107, where Deane J at 143 said:

“If a third party is to be entitled to rights and subject to obligations in relation to a contract to which he is a stranger, those rights and obligations must have some basis, either in statutory provision or in a common law principle, beyond the mere contract.”

102 The Defendant relied on Hedley Byrne & Co Limited v Heller & Partners Limited [1964] AC 465 and Mutual Life & Citizens’ Assurance Co Limited v Evatt (1968) 122 CLR 556, and submitted that the Defendant only owed the Plaintiff a duty of care if a “special relationship” existed between the parties in order to establish proximity.

Decision

103 A contract is an agreement which produces an obligation between parties. Contracts are frequently informal, with little specific negotiation, and terms are often implied to complete the parties' bargain, either in specific fact situations or in certain commonly occurring contractual relationships. A contract for the provision of professional services contains implied terms for the exercise of reasonable care in its performance: Astley v Austrust Limited (1999) 197 CLR 1.

104 Mr Beattie gave evidence that, in January 2002, he contacted the Defendant and told him that he “had an employee who had injured his mouth at work, that he was complaining that he had a sore mouth, sore teeth and would he look at them” (T104). He said that he “was acting out of my responsibilities as his employer” when he contacted the Defendant, and he told Mr Dean to attend and seek the services of the Defendant (T113).

105 Mr Beattie told the Defendant that it was a worker’s compensation matter (T104). Mr Beattie told the Defendant “that Todd [Mr Dean] would not have to pay any bills in relation to any damage related to an injury sustained at work” (T104). Mr Beattie told the Defendant that “our insurance company” would pay the bills (T104). The Defendant agreed to see Mr Dean on these terms (T104).

106 The Plaintiff made the appointment for Mr Dean at the Defendant’s dental surgery. The Defendant wrote letters and update reports to the Plaintiff with invoices attached for the dental work that was performed on Mr Dean (T106). Mr Beattie spoke to the Defendant on the telephone “a couple of times and asked what was happening” in relation to Mr Dean (T106). The Defendant told Mr Beattie “that there was a lot of work to be done” to Mr Dean’s mouth (T106).

107 The Plaintiff offered the Defendant the opportunity to see and treat Mr Dean, the Defendant accepted the offer and treated Mr Dean in exchange for payment by the Plaintiff.

108 Having regard to all of the circumstances, I am satisfied that the objective intention of the Plaintiff and the Defendant was to enter into an agreement where the Defendant provided professional dental services which were reasonably necessary to treat the workplace injury complained of by Mr Dean, in exchange for payment. Post-contractual conduct may be examined for the limited purpose of determining whether or not a contract existed between parties: Sagacious Procurement Pty Limited v Symbion Health Limited [2008] NSWCA 149 at [69], [99]-[106]. Evidence of post-contractual conduct in this case reinforces a finding favourable to the Plaintiff that a contract existed.

109 The Defendant admitted at hearing that the treatment and advice that he provided to Mr Dean was inexcusably bad (T28). I am satisfied that a contract existed between the Plaintiff and Defendant as submitted by the Plaintiff, and that the contract was breached by the Defendant in fundamental respects.

Claim in Tort

110 The Plaintiff submitted that the Court may comfortably find that the acts and omissions comprising the dental services and treatment provided by the Defendant, were a departure from proper professional standards such as to comprise compensable negligence as understood by s.5A Civil Liability Act 2002.

111 I have made findings adverse to the Defendant with respect to his treatment of Mr Dean, and these findings clearly engage ss.5B and 5O Civil Liability Act 2002.

112 The Plaintiff’s claim in tort is one for pure economic loss. Part of the claim under this heading invites me to consider whether the decision in Ulan Coal Mines Pty Limited v Hunter Area Health Service [1999] NSWSC 664 was wrongly decided. I have determined that the Plaintiff ought succeed on one or more of its other causes of action. In these circumstances, it is not necessary to consider further the submissions made concerning Ulan Coal, nor to determine the Plaintiff’s claim for relief in tort and I decline to do so.

TPA and FTA Claims

113 The Plaintiff brings claims under s.52 TPA and s.42 FTA. The claims are in the alternative, but are closely related having regard to the similarities between the two Acts.

Submissions

114 The Plaintiff claims that the Defendant made the following representations:

(a) that he was a competent dentist;

(b) that any dental services provided by him would be to the standard of an ordinary skilled dentist;

(c) that the dental services provided by the Defendant, as set out in the memoranda of fees, were to the standard of an ordinary skilled dentist;

(d) that the dental services provided by the Defendant, as set out in the memoranda of fees, were given to Mr Dean by the Defendant, as they were reasonably necessary as a result of the workplace injury received by him.

115 The Plaintiff submitted that it relied on the Defendant’s report of 19 July 2002 when it made the payments to the Defendant. This was reinforced by Ms Howard’s evidence at hearing (T49-50). It was submitted that it was not until Dr Howe’s report of 5 July 2007 that the insurer was informed that the services provided by the Defendant were so inexcusably bad so as to invoke the Mahony principle. By 2007, the Plaintiff had already paid all of the compensation in this case.

116 The Plaintiff submitted that the Defendant’s conduct was in breach of s.52 TPA and s.42 FTA. The Defendant is an individual and not a corporation. However, by virtue of s.6 TPA, s.52 can apply to individuals.

117 The Plaintiff submitted that the Defendant engaged in conduct that involved the use of postal and telephonic services, and that s.6 TPA should be invoked.

118 The Plaintiff submitted that the Defendant’s misleading conduct was a thing done in trade or commerce by a professional person within the meaning of that phrase in ss.4 and 42 FTA. It was submitted that:

(a) the Defendant had a commercial interest in the subject matter of his memoranda of fees and his reports;

(b) the relationship between the Plaintiff and the Defendant was one in which the Plaintiff was vulnerable to the Defendant’s conduct for the following reasons:


(i) as the employer of Mr Dean, the Plaintiff was liable (through its insurer) to pay the cost of any reasonably necessary medical or related treatment pursuant to s.60 WC Act,

(ii) the Defendant’s misleading conduct caused the Plaintiff and/or its insurer to believe that the Plaintiff was liable to pay for the Defendant’s provision of dental treatment to Mr Dean,

(iii) the Plaintiff acted in reliance upon the Defendant’s representations,

(iv) payment of the Defendant’s memoranda of fees by or on behalf of the Plaintiff was due to the Defendant’s misleading conduct.

119 The Plaintiff submitted that, on the basis of these suggested findings and the representations which the Defendant has admitted making to TMF, the Defendant’s representations were false, misleading or deceptive within the meaning of s.52 TPA and s.42 FTA. It was submitted that the Defendant’s conduct was in breach of these provisions in that it was misleading or likely to mislead as:

(a) the Defendant was not a competent dentist;

(b) the Defendant did not have the skills of an ordinary skilled dental practitioner;

(c) the Defendant did not have reasonable grounds to believe that his treatment would be of the standard of an ordinary skilled dental practitioner;

(d) the Defendant did not have reasonable grounds for believing that his treatment was reasonably necessary for the workplace injury.

Decision

120 I am satisfied that the Defendant supplied his services as a professional dentist. The Defendant provided dental services to an employee of the Plaintiff, in exchange for payment made by the Plaintiff. These circumstances bear a trading or commercial character: Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594; Houghton v Arms [2006] 225 CLR 553; HCA 59. I am satisfied that the Defendant was engaged in conduct in trade or commerce.

121 I accept the Plaintiff’s submission that the Defendant represented that he was a competent dentist, and that this was misleading and deceptive as defined by s.52 TPA and s.42 FTA.

122 In his report of 5 July 2007, Dr Howe states that “It is extremely unlikely that any of the dental services provided by Dr Phung were necessary ... Personally, I believe that none of the dental services provided by Dr Phung were accident related”. Dr Howe also noted that “the standard of treatment provided by Dr Phung fails to meet an acceptable standard…and fails to meet an acceptable standard of care” and “The standard of care provided by Dr Phung … varied from the standard of an ordinary skilled dentist”. Dr Howe recommended that the treatment provided by the Defendant be completely replaced by another dentist.

123 When considering how a reasonable person might view a particular representation, it needs to be borne in mind that there can be more than one reasonable response in any given circumstance. The test for reasonableness involves considering the boundaries of the range of those responses: National Exchange Pty Limited v ASIC [2004] FCAFC 90.

124 I am satisfied that the Defendant misrepresented that he was a competent dentist and that the Defendant misrepresented that the dental services provided by the Defendant, as set out in the January to June 2002 memoranda of fees, were to the standard of an ordinary skilled dentist.

125 I am satisfied from the evidence that the Defendant was aware that the Plaintiff (or it’s worker’s compensation insurer) would be paying the Defendant’s invoices for the treatment of Mr Dean. I am satisfied that the Defendant misrepresented that the dental services, as set out in the January to June 2002 memoranda of fees, were provided to Mr Dean by the Defendant because they were reasonably necessary as a result of the workplace injury received by the worker.

126 In the present case, the Plaintiff made payments to the Defendant in reliance on the Defendant’s representations. I am satisfied that a reasonable person in the position of the Plaintiff would have placed reliance in the Defendant’s representations.

127 In order to recover damages, the Plaintiff must prove that the loss or damage claimed to have been suffered arose from conduct in breach of the TPA of FTA. Causation is essentially a question of fact, to be determined by reference to common sense and experience and one into which policy considerations and value judgments necessarily enter: March v Stramare (E & MH) Pty Limited (1991) 171 CLR 506. I am satisfied that the relevant loss arose directly from conduct of the Defendant which breached the TPA and the FTA.

128 As the FTA applies clearly to the conduct of the Defendant as a professional person, the more appropriate statute under which relief ought be granted is the FTA.

Conclusion on Liability

129 In summary, it was open to the Plaintiff to bring these proceedings and the Plaintiff has established its causes of action in restitution/unjust enrichment, contract and under the FTA.

130 The Defendant complained that the pleadings did not reflect the case argued by the Plaintiff. I note that in the hearings before Smart AJ on 17-18 December 2008 and 9 February 2009, the Plaintiff clearly explained the basis for its claim in subrogation, and no objection was taken by the Defendant to the matter proceeding further at that time, nor was application made for further and better particulars (see Exhibit G). I am satisfied that the Defendant had notice of the case to be brought against him.

Quantum and Interest

131 The documentary evidence established that compensation in a total amount of $73,640.00 has been paid to the Defendant, for the Plaintiff’s liability to Mr Dean pursuant to s.60 WC Act in regard to Mr Dean’s workplace injury.

132 Mr Dean also required extensive time off work to undergo dental treatment with the Defendant, for which compensation payments were made to Mr Dean. As at 25 March 2009, weekly compensation payments (in accordance with s.37(1)(a)(i) WC Act) made by the Plaintiff amounted to $89,192.00.

133 In addition, the Plaintiff has paid a total of $6,906.00 to date for the rehabilitation of Mr Dean’s mouth.

134 The Plaintiff has made payments to three dental and medical specialists, who treated Mr Dean and prepared reports for these proceedings. As at 25 March 2009, the total sum paid to remedial dental and medical professionals was $50,564.00.

135 Further, I am satisfied that Mr Dean will require further dental treatment to rectify the largely destructive work carried out by the Defendant.

136 I am satisfied that, as at 25 March 2009, the Plaintiff had suffered economic loss in a total of $220,302.00.

137 It was agreed that interest ought be calculated in the sum of $109,854.65 as of 25 March 2009, with interest accruing at $58.34 per day thereafter.

Proposed Declaration and Orders

138 I propose to make a declaration and orders to the following effect:

(a) a declaration that the dental services provided by the Defendant to Todd Dean were not reasonably necessary treatment given as a result of Mr Dean’s workplace injury in the course of his employment with the Plaintiff on 19 December 2001;

(b) verdict for the Plaintiff against the Defendant in the sum of $220,302.00;

(c) the Defendant is to pay to the Plaintiff interest pursuant to s.100 Civil Procedure Act 2005 in the sum of $124,556.33 calculated as at 2 December 2009;

(d) the Defendant is to pay the Plaintiff’s costs of the proceedings.

139 Before making those orders, I will give the parties an opportunity to check the wording and relevant mathematical calculations contained in the proposed declaration and orders. I will also hear the parties on the question of referral of this judgment to the Health Care Complaints Commission for consideration, if the question is not already before that body, of such action concerning the Defendant, as is considered appropriate, under the Health Care Complaints Act 1993 and Dental Practice Act 2001.

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