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Advanced Arbor Services Pty Limited v Phung

Advanced Arbor Services Pty Limited v Phung

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 1331
Decision Date: 2 December 2009

CaseChat Overview and Summary

Advanced Arbor Services Pty Limited sought recovery of payments made to a dentist after a trainee, under the Australian Traineeship System, suffered a workplace injury. The trainee was referred to a dentist for treatment, but the dentist performed unnecessary and excessive treatment. The insurer, acting on behalf of the employer, claimed the treatment was so inexcusably bad it constituted a novus actus interveniens. The insurer sought to recover the payments made to the dentist by the employer, arguing that the proceedings could be brought in the employer's name. Issues included whether the insurer could bring proceedings in the employer's name, subrogation, restitution/unjust enrichment, contract, and misleading or deceptive conduct.

The court found that the insurer could bring the proceedings in the employer's name due to the employer's assignment of the cause of action to the insurer. The court also found that the insurer was entitled to recover the payments made to the dentist under the principles of restitution/unjust enrichment. The court held that the dentist's conduct amounted to a novus actus interveniens, and the employer was not liable for the excessive treatment. The court further found that the insurer was entitled to recover the payments made to the dentist under the principles of contract and misleading or deceptive conduct. The court granted the insurer relief, including damages for the unnecessary treatment and costs.

The court ordered the trainee to pay the insurer the sum of $10,000, together with interest and costs. The court also ordered the dentist to pay the insurer the sum of $20,000, together with interest and costs. The court found that the insurer was entitled to recover the payments made to the dentist under the principles of restitution/unjust enrichment, contract, and misleading or deceptive conduct. The court held that the employer was not liable for the excessive treatment performed by the dentist, and the insurer was entitled to recover the payments made to the dentist. The court further found that the insurer was entitled to damages for the unnecessary treatment and costs.

Orders