Christina Kim Andrews v Allianz Australia Insurance Ltd

[2011] NSWDC 162

District Court

New South Wales

Medium Neutral Citation:	Christina Kim Andrews v Allianz Australia Insurance Ltd [2011] NSWDC 162
Decision date:	07 March 2011
Jurisdiction:	Civil
Before:	Cogswell SC DCJ
Decision:	The limitation period in this case is to be extended.
Catchwords:	CIVIL LAW - judgment - application to extend limitation period - plaintiff injured in car accident as child - needs further dental treatment as an adult
Legislation Cited:	Limitation Act 1969 s 60G, s 60I, s 69G
Cases Cited:	Brisbane South Health Authority v Taylor (1996) 186 CLR 541, CRA Limited v Martignago and Costain Australia Limited v Matigmagno (1996) 39 NSWLR 13; Harris v Commercial Minerals Limited and Harris v Augal Pty Limited (1995-1996) 186 CLR 1,
Category:	Principal judgment
Parties:	Christina Kim Andrews Allianz Australia Insurance Ltd (as agent for NSW Self Insurance Corporation and TAC Fund)
Representation:	Ms Goodchild and Ms Campbell for Ms Andrews Mr D Stanton for Allianz
File Number(s):	2010/239933

Judgment

1. Christina Kim Andrews was injured in a car accident thirty years ago. She now wants to sue for damages. Not surprisingly, the law is that she needs permission from the court to commence a case so long after the event. What I have to determine is whether to give her that permission.

2. The accident occurred on Christmas Eve 1980. Ms Andrews was then aged ten. She was a passenger in the car that was being driven by her father. There was a collision at an intersection. She was thrown forward and smashed into the seat in front of her. She was sitting in the back seat. Her front teeth were broken off and she had some other injuries. Liability for the accident has not been an issue in these proceedings.

3. Ms Andrews said that she had a lot of dental treatment after the accident. She came under the care of a dentist named Dr Szakall. When she was sixteen, Dr Szakall fitted four crowns to the four front teeth that were broken in the accident. Ms Andrews said in an affidavit, which has been filed in these proceedings, that "when Dr Szakall did that work I thought that that meant that my front teeth were fixed and that the crowns would never have to be replaced."

4. However many years later in 2008, Ms Andrews - who was still seeing Dr Szakall as her dentist - mentioned to him that she had noticed that there was a gap developing between the top of her crowns and her gum. She also noticed that her gum was changing colour. When she asked Dr Szakall what was going on, she said he said " Sorry, your gums are receding because of your age ." When she asked him whether there was anything she could do about it, she said he said " I wouldn't bother." He did not think that any treatment would be covered by the insurance company.

5. The appearance of Ms Andrews' teeth continued to bother her. She said that a couple of months later she met a dental assistant on a social occasion. That dental assistant advised her to get a second opinion. She got a second opinion from a Dr Ip and she phoned Allianz Australia Insurance Limited - which is named as the defendant in this application - and spoke to a person named Gail McKinnon. Ms Andrews said that Gail McKinnon told her that the " file is still an open file which means there has never been a settlement ." Ms Andrews asked whether the insurer would pay for her dental treatment. She said that Ms McKinnon said that she would "need to get some quotes and send them in." Accordingly, Ms Andrews proceeded to get a couple of quotations. Dr Ip quoted about eleven and a half thousand dollars and other dentists quoted around $24,000. In all, she received two quotations. She obviously submitted those quotations which appear in the proceedings as exhibits B, C and D to Allianz.

6. Allianz wrote Ms Andrews a letter. It came from Gail McKinnon and it was dated 19 August 2009. It referred to a quotation which had been sent in and said that Allianz " is not able to meet the costs as quoted ." However, the letter went on to say that Allianz does " provide approval for dental treatment to be carried out at the rates as prescribed by the Medicare benefits schedule ." It then referred to a figure of about six and a half thousand dollars. The letter then said that Ms Andrews " may choose to proceed with the proposed treatment and seek reimbursement from your private health insurer for the gap or enter into negotiations with your dentist regarding the proposed treatment costs ."

7. The following year, on 18 May 2010, Allianz wrote again to Ms Andrews referring to the Limitation Act 1969 and advising her that Allianz would do nothing " without you first obtaining leave to commence proceedings in the District Court ." Hence, on 19 July 2010 Ms Andrews filed a summons in this court asking for leave to commence the proceedings, that is the issue which I have to determine.

8. Returning to Ms Andrews' affidavit, she said that she remains " very worried about the cost of my future dental treatment ." She also said in the affidavit that when " Dr Szakall did that work I thought that that meant that my teeth were fixed and that the crowns would never have to be replaced ." She said that she " never knew that the crowns would have to be replaced and I had no idea of the expense involved ." She said in her affidavit that she has since been informed " that implants or crowns require replacement once or more over your lifetime and that is something else that I did not know." She said she had no idea until she saw her solicitors in 2010 that there was a limitation period affecting her being able to commence proceedings. It is clear from the affidavit of Lee Hagipantelis that her lawyers acted expeditiously once she gave them instructions.

9. Ms Andrews gave evidence in the proceedings and was crossexamined by Mr David Stanton of counsel who appeared for Allianz. She acknowledged that she believed that " GIO would do what was necessary in order to fix your teeth." GIO was the relevant predecessor to Allianz. She stopped seeing Dr Szakall around 2008 but had seen him on a regular basis over the years for other issues in addition to her crowns. She understood from her parents that GIO had paid for the treatment to her crowns. That is confirmed by exhibit E which comprises a series of historical documents concerning payment for that treatment. She confirmed that her understanding was that if ever she needed treatment that the GIO would pay for it. She did not speak to her mother at the time of her treatment because, so far as she was concerned, the treatment was done. She said that it was " just always my understanding that whatever happened to these teeth in my period from ten years old right up to when the crowns were replaced, it was paid for by the insurance company ." She understood that she had what she described as " a lifetime cover." That evidence was given by her on 16 December 2010 when the matter first came before me and Ms Andrews was represented by Ms Goodchild of counsel.

10. When the matter came before me on 17 February 2010 Ms Andrews was represented by Ms Campbell of counsel and once again went into the witness box. She was asked about an understanding that the crowns may have had a life of only seven to ten years and said that she never heard that until she saw one of the dentists from whom she had a quotation. She seemed to recollect Dr Szakall talking about her front teeth but she thought that was at earlier consultations rather than at later consultations. She did not agree that Dr Szakall had asked her " how are your front teeth " at later consultations. She thought that much of the discussion was with her parents rather than with her, pointing out that she was sixteen when she got her treatment. She acknowledged that she was present at the time. She repeated that whatever need might arise for treatment for her teeth that "GIO would pay for" and said, according to my note, that she " just thought if there were any problems then she had life coverage ." Her parents are still alive and presently aged seventyfive and live in Blacktown. Her mother has emphysema and requires to have oxygen. She leaves the house usually only for medical treatment which is in the Blacktown area. Ms Andrews spoke to her mother by telephone on the day that she gave evidence the second time before me, on 17 February 2011. Exhibit E, as I said, comprised a bundle of historical documents that appear to confirm that GIO paid for treatment given by Dr Szakall to Ms Andrews.

11. There was also a letter from Dr Szakall, presumably to the GIO, dated 18 December 1984 to which I will make further reference. It was an almost contemporaneous account of Dr Szakall's understanding of the procedure which he had performed upon her and of Ms Andrews' future needs.

12. In addition, exhibit 1 was a letter from Dr Szakall to Allianz's solicitors in which he answered a series of questions which were posed to him by those solicitors. I will return to that as well.

13. After some dalliance with other provisions in the Act, Ms Andrews' counsel settled on the application being brought under s 60G of the Limitation Act . That relevantly provides that the Court after hearing from persons who may be affected, "may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines."

14. I should here add that when the accident occurred on 24 December 1980 the limitation period did not run because Ms Andrews was a child at the time. It is common ground that the limitation period commenced to run when she turned eighteen so that the period expired on 11 April 1994.

15. Returning to the Limitation Act , section 60I provides for various matters which must be considered by a court in dealing with an application made by someone under s 60G. Section 60I(1)(a), relevantly provides that a Court

" may not make an order under s 60G unless it is satisfied that:

(a) the plaintiff...

(ii) was unaware of the nature or extent of personal injury suffered...at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted".

The section further provides that an order under s 60G cannot be made unless the Court is satisfied that the " application is made within three years after the plaintiff became aware (or ought to have become aware)" of various matters which it refers to.

16. In this case Ms Andrews, through her lawyers, argues that she was unaware of the extent of the personal injury which she suffered as a result of this car accident in that she was unaware of the need for the crowns to be replaced.

17. Allianz refers me to the decision of the High Court in Harris v Commercial Minerals Limited and Harris v Auqal Pty Limited ,

(1995-1996) 186 CLR 1. In a joint judgment the Court said at 13:

" that an applicant may have been aware of the extent of his or her injury even though he or she does not expect all its precise consequences, for it is not necessary that the applicant should foresee the exact course of the disease or be aware of all its pathological and physiological incidents."

18. It is common ground that the requirement of s 60I(1)(a) is for an applicant not to have actual awareness and that the requirement of s 60I(1)(b) is a requirement for an applicant not to have constructive knowledge of the relevant information, taking into account that applicant's own circumstances.

19. Mr Stanton argued that Ms Andrews simply did not, in the terms of the High Court decision, precisely foresee the need for further treatment. He said that was not enough for her to succeed. He argued that Ms Andrews' knowledge that if she required further treatment then the GIO would pay, meant that she knew that there may well be a deterioration of dental repair or her teeth by reason of the accident. How else, he asked rhetorically, could Ms Andrews have an expectation that whatever needed to be done to her teeth in the future then the GIO would pay. He pointed to the evidence which she gave about it always being her understanding that whatever happened to her teeth in the period " from ten years old right up to when the crowns were replaced, it was paid for by the insurance company " as particularly revealing. He argued that that answer demonstrated that Ms Andrews knew the nature and extent of the injury suffered by her well before the expiration of the limitation period.

20. It is necessary to refer to some of what Dr Szakall said in his reply to the Allianz solicitor's letter, which was exhibit 1. Dr Szakall set out a summary of the various consultations which he had with Ms Andrews and his note of what they concerned. He also set out a note of the X-rays which had been performed. Dr Szakall said that every time he consulted her after the procedure for the front teeth " my first question to her has been, 'How are the front teeth? '" He referred to irregular visits and missed appointments and it being difficult to get her back regularly as a patient. He referred to her having " excuses " for not turning up. Dr Szakall said that the " importance of caring for her repaired teeth was discussed regularly. Particularly the need to maintain hygiene and the need to avoid concentrated stress upon these teeth ."

21. In response to a question from Allianz's solicitors about what he told Ms Andrews " regarding the repair performed in 1986 in terms of the longevity of the repair ", he said that he had " endeavoured to explain to Christina's parents in her childhood years and later to Christina in her adulthood, that the repaired teeth are indeed that, they are repaired teeth that have been restored from trauma." As for longevity Dr Szakall's letter said that " I always tell my patients that repaired teeth [such as these] have a limited life of perhaps seven to ten years ." He said that in Ms Andrews' case she was treated as a child growing into adulthood which would cause change and that " was discussed " as well as wisdom teeth and other matters relevant to her dental hygiene. He explained that " further injury by fracture or infection would require further work, even possible extraction and prosthetic replacement. " He then repeated for emphasis " that every time we consulted, my first question to her has been, 'How are the front teeth?'." He emphasised that on every visit he stressed the importance of caring for the repaired teeth.

22. Mr Stanton argued that there is a dispute between Ms Andrews and Dr Szakall about whether or not she was told about the need for her teeth to be replaced. Mr Stanton had pointed out that a response in evidence, " I don't recall " is not the same as " I wasn't told." However in my opinion there is no direct conflict between Ms Andrews' evidence and the evidence from Dr Szakall contained in the various reports. It seems from exhibit 1 that some of the conversations which Dr Szakall had were with Ms Andrews' parents and not with her. In addition, as Ms Campbell pointed out, Dr Szakall speaks in general terms such as " I always tell my patients ." In my opinion the question always posed by Dr Szakall - " How are the front teeth?" - is not the same as an assertion, " Your crowns have a limited life." His advice also understandably touched upon the need for further work in the event of " further injury ." This is not the same as saying that the crowns would need replacement regardless of further injury. As Ms Campbell argues, correctly in my opinion, there are no references in the summary of his records which Dr Szakall provided of what one might expect to find either confirming the proposition that the crowns were impermanent or advice to that effect.

23. Dr Szakall told the GIO on 18 December, 1984 that " these crowns may become unattractive again in late adulthood and so allowance should be made in the future for replacing these crowns again, if need be. " That letter was obviously sent for the purpose of the insurer being able to consider whether or not it would approve the treatment which later did occur. What Dr Szakall told the GIO is not the same as the crowns having " a limited life of perhaps seven to ten years ."

24. I emphasise here something which is very important. Dr Szakall was not called to give evidence. He was not crossexamined about any inconsistencies between his reports and Ms Andrews' evidence, nor was he given an opportunity to explain any differences between his report contained in exhibit E in 1984 and his current report sent to Allianz's solicitors which was contained in exhibit 1. It is very important in that regard to appreciate that I do not make any unfavourable finding about Dr Szakall as a witness. In particular, I do not make any unfavourable finding about his credit-worthiness. However, based upon the evidence which I do have, I am able to conclude from the evidence of Ms Andrews, when compared with the reports of Dr Szakall, that there is no serious inconsistency.

25. Mr Stanton goes on to argue that Ms Andrews had an expectation that the GIO would pay for whatever was needed. As he pointed out in crossexamination, Ms Andrew acknowledged that she believed that whatever she needed the GIO would pay for. She and her family " just thought that if there was any problem, then she had, like, coverage ". However, it should be observed that Ms Andrews qualified that answer in giving that evidence by " if there was ", referring to any problem. This, however, in my opinion, is not the same as actual knowledge of the extent of the injury. This is a case about replacement of crowns and not about maintenance or repair, for example, if oral hygiene is not looked after or if the teeth were subject to further injury. A belief that Ms Andrews would be looked after if problems occurred is different from knowledge that the crowns had a limited life and would need replacement.

26. Mr Stanton pointed out on behalf of his client that Ms Andrews' mother was not called and that I should infer that nothing which she could say would be of assistance to Ms Andrews' case. But, as Ms Campbell argues, it is her client's actual knowledge and not her mother's knowledge which is relevant. In addition I have taken into account that Ms Andrews' mother is elderly and not in very good health. I also take into account, as Ms Andrews said in her evidence, that most of the discussion was between the dentist and her parents, even though she was present. I cannot infer or speculate what evidence the mother might give, including what Ms Andrews might have overheard or understood from her parents' conversations with the dentist.

27. In the terms expressed by the Court of Appeal in CRA Limited v Martignago and Costain Australia Limited v Matigmagno (1996) 39 NSWLR 13 at 20, I am satisfied in this case that Ms Andrews was aware that she had " suffered an injury, possibly with continuing consequences, but is unaware of its complications, implications or potentially serious consequences ". This is not a case of Ms Andrews not having exact, precise knowledge, but in my opinion, a case where she was in fact not aware of the fact that her teeth would need replacement.

28. Mr Stanton argues that in the event that he is unsuccessful in persuading me that Ms Andrews had actual knowledge of the extent of her injury, then I should accept that she had constructive knowledge which, it is agreed, s 60I(1)(b) refers to. That knowledge is peculiar to Ms Andrews and takes into account her personal circumstances. Mr Stanton argued that Ms Andrews was aware that she had suffered a significant injury and that she may well require further treatment for her teeth. He pointed out that she was in regular contact with the dentist who repaired her teeth when she was sixteen. There was no reason why she should not have made a reasonable inquiry of her dentist regarding the future. Mr Stanton argues that in those circumstances she ought to have been aware of the various matters referred to in s 60I.

29. The summons in this case was filed on 19 July 2010. The question for me is whether Ms Andrews ought to have become aware of the extent of her injury before 19 July 2007. Ms Stanton argues that she ought to have known before then because she had the resources to make inquiries of the dentist about her legal rights. But in my opinion, given her understanding of the finality of the work on her front teeth, she had no reason to think otherwise. I can take into account her personal circumstances. As soon as she noticed a problem with her teeth she asked the dentist about it. Dr Szakall's letter sent in 1984 to the GIO was consistent with the crowns being permanent. What Ms Andrews ought to have known would depend upon her own experience of the teeth and what she had been told. One could rhetorically ask, why would she ask about her teeth if there was no problem. As soon as there was a problem she asked Dr Szakall about it.

30. I am satisfied that the application was made within three years after Ms Andrews ought to have become aware of the various matters referred to in s 60I(1)(a).

31. Mr Stanton turns to s 69G itself and to the discretion which that clearly invests me with. He argues that I should not see fit that it is just and reasonable to order the limitation period to be extended. He points to what Dawson J said in Brisbane South Health Authority v Taylor (1996) 186 CLR 541 about a section such as this conferring " a discretion upon a Court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing. The onus of satisfying the Court that the discretion should be exercised in favour of an applicant lies with the applicant."

In the same case Justices Toohey and Gummow said that in the exercise of the discretion the " material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible ." The passage from the judgment of Toohey and Gummow JJ is to be found at 348. I also take into account what was said by McHugh J in the same case.

32. Mr Stanton points to three reasons why I should exercise my discretion against providing Ms Andrews relief under s 60G. They are as follows. First, Mr Stanton argues that his client is prejudiced because of the unavailability and quality of the evidence after thirty years. Secondly, he argues that there was a fatal delay because Ms Andrews did not diligently pursue her entitlements. Thirdly, Mr Stanton argues that there is no evidence that Ms Andrews' treatment which is presently required is due to the accident.

33. As to the first issue about the period of time that has elapsed, a long time has indeed gone by but this is a case where Allianz has been aware of the issue from the early days. It is not as if Ms Andrews comes along now and presents Allianz for the first time with a thirty year old accident and injury. This is an injury which Allianz is familiar with. Indeed Allianz was prepared to pay Ms Andrews a sizeable sum for the repair of her teeth. The offer, which was contained in exhibit F and dated 19 August 2009, demonstrated that Allianz was not behaving as if it were prejudiced. It made a respectable offer based on Medicare rates and appeared to treat the claim seriously.

34. As for the second matter of the alleged delay on the part of Ms Andrews in pursuing her entitlements, so far as she was concerned the crowns were permanent. She had no reason to question or inquire about them. But, when an issue arose she pursued it with the dentist and, remaining unsatisfied, a " couple of months later " obtained and followed up further advice. I cannot see for my part any delay on Ms Andrews' part which would impact upon my discretion under s 60G of the Limitation Act .

35. As to the third matter of causation, it will be, of course, for Ms Andrews to satisfy a Court in the event that leave is given, that the damages she claims are for an injury which can be attributed to an accident for which Allianz is responsible. Dr Szakall says that the repaired teeth have a limited life of seven to ten years. Ms Andrews has given evidence that the repaired teeth have deteriorated. The damages claim is the cost of rectifying the deteriorating teeth, which Dr Szakall would have expected to deteriorate before now. There is, in my opinion, a sufficiently demonstrated causal connection to allow leave.

36. Accordingly, in my opinion, it is just and reasonable to order that the limitation period for the cause of action be extended in this case.

HIS HONOUR: I will just hear the parties as to what I should extend it to.

PETRUSHNKO: Your Honour, unfortunately I've come here without those instructions. If your Honour is able to stand the matter down for five minutes I can get those instructions your Honour.

HIS HONOUR: Yes. I'll just go off the bench for a couple of minutes. And I will also have to hear you on costs, of course, and there's the pleadings.

And for the record I received written submissions after I reserved my decision, appropriately so, from Mr Stanton in a letter to my associate dated 18 February 2011.

MFI#7 WRITTEN SUBMISSIONS OF MR STANTON

HIS HONOUR: And from Ms Campbell, in a letter, I have her written submissions dated 24 February 2011.

MFI#8 WRITTEN SUBMISSIONS OF MS CAMPBELL

HIS HONOUR: And all the submissions will go on the file and did I say about costs? I should also hear you on costs as well. All right I'll come back in a couple of minutes.

SHORT ADJOURNMENT

HIS HONOUR: How did you go Ms Hodgkisson, Mr Petrushnko?

HODGKISSON: Your Honour certainly with respect to - if I can first touch on the issue of costs? Your Honour might recall that on the last occasion Mr Stanton did advise the court that were the plaintiff to be successful he would wish to be heard again on costs and he advised that he wasn't going to be available here today.

HIS HONOUR: Good and would like to be heard.

HODGKISSON: Yes he would like to be. He would also like to be heard with respect to when your Honour ought to extend the limitation period to if that would be amenable. I understand my friend's got a proposed date but as I said Mr Stanton would like to be heard if that suits the court.

HIS HONOUR: Okay, all right well that sounds reasonable. Do you agree with the Mr Petrushnko?

PETRUSHNKO: Yes your Honour, I've got dates but I hear what my friend says and we're happy to stand the matter over.

HIS HONOUR: I'm sitting this week in civil, all this week. I'm away next week and then I'm sitting in civil again the week commencing 21 March, then I go to Nowra for three weeks. What do you want to do?

HODGKISSON: Is it the week 21 March did you say suits your Honour?

HIS HONOUR: I am back yes in Sydney civil.

HODGKISSON: Unfortunately Mr Stanton is in court and his clerk out of chambers today so I'm - perhaps the Thursday or Friday of that week, 24/25 March if that suits your Honour.

HIS HONOUR: Yes it does. Shall we say 10 o'clock on the 24th? Now bear in mind that the terms of the judgment, I'll direct that transcript of my judgment be taken out and made available to my associate so that I can revise it but that won't be for a while, probably a few weeks and the transcript itself takes a while and then I've got to revise it, so you'll have to rely on your notes. Would it be sensible for Mr Stanton and Ms Campbell to just put in some dot points, a note about submissions on costs and the date?

HODGKISSON: I think so your Honour.

HIS HONOUR: What about they do that before Tuesday 22 March?

PETRUSHNKO: Suitable your Honour.

HODGKISSON: Thank you.

HIS HONOUR: They don't have to be written submissions but just heads of argument or something like that by 5 o'clock Tuesday 22 March and I'll list it for 10 o'clock on Thursday 24 March. Now if there's a problem with the date, it sounds as though Mr Mooney and Mr Keesing are going to keep me here for a few days, so I'll be here so if you want to look at revising the date then come back tomorrow. If I don't hear then I'll see you on the 24th.

HODGKISSON: Thank you your Honour.

PETRUSHNKO: Thank you your Honour.

HIS HONOUR: My associate's drawn my attention to a matter.

37. It might be sensible for me to make it clear that at this stage I make an order that the limitation period for the cause of action be extended and I wish to hear the parties further on the period which I should determine that it be extended for and on costs. So there is an order today that the limitation period is extended.

PETRUSHNKO: May it please the court.

HIS HONOUR: Good all right, thank you both very much.

ADJOURNED TO THURSDAY 24 MARCH 2011

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Decision last updated: 26 October 2011