Ireland v Benge
[2020] VCC 1978
•14 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
MEDICAL LIST
Case No. CI-19-03792
| JOHN IRELAND | Plaintiff |
| v | |
| DR LARRY BENGE | First Defendant |
| and | |
| MR KEVIN SPENCER | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2020 | |
DATE OF RULING: | 14 December 2020 | |
CASE MAY BE CITED AS: | Ireland v Benge & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1978 | |
REASONS FOR RULING
---
Subject: Practice and Procedure
Catchwords: Summary Dismissal
Legislation Cited: Civil Procedure Act 2010 (Vic); County Court Civil Procedure Rules 2018 (Vic); Transport Accident Act 1986 (Vic)
Cases Cited:Ireland v Transport Accident Commission [2014] VCAT 1328; Dunin v Harrison [2002] VSCA 125; 8 VR 596; Gennimatasv Transport Accident Commission [2002] VSC 552; 5 VR 547; Larson v Transport Accident Commission [2004] VCAT 537, Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; 42 VR 27
Ruling: Claim Dismissed
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the First & Second Defendant | R Harper | Meridian Lawyers and K & L Gates |
HIS HONOUR:
1 The defendants in this matter made an application for summary dismissal of the plaintiff’s proceeding, pursuant to s62 of the Civil Procedure Act 2010 and in accordance with Rule 22.16 of the County Court Civil Procedure Rules2018. The application was made on the basis that the plaintiff’s claim had no real prospects of success. The reason for this was said to be that the plaintiff, having been injured in a transport accident, had not obtained access through one of the relevant gateway provisions in s93 of the Transport Accident Act 1986 to be able to issue common law proceedings. In shorthand, the defendants argued that as the plaintiff did not have a serious injury certificate, he was unable to proceed with his claim as formulated in this Court.
2 The plaintiff is self-represented. He argues that he does not need serious injury certification as the injuries he complains of were not directly caused by the transport accidents he was involved in, but rather arose by reason of the negligence of the named defendants, a dentist and an oral surgeon, who treated him.
3 In an application such as this made by the defendants, I am required to take the plaintiff’s case as pleaded at its highest.[1] The test to be applied in determining the defendants’ application is whether the plaintiff has a “real” as opposed to “fanciful” chance of success.[2] Particularly in this application as the defendants call in aid the statutory mandate that the plaintiff must have a serious injury certificate prior to the issue of common law proceedings the principle in Spencer v Commonwealth is also relevant.[3] Namely that where the success of a proceeding is critically dependent upon a proposition of law which would contradict a binding decision of the court (or legislation), the court hearing the application could justifiably conclude that the proceedings had no real prospect of success.[4]
[1]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; 42 VR 27. Though s.63 was under consideration in Lysaght and the defendants’ here moved under s62 the test is the same.
[2]Lysaght at [29]
[3]Spencer v Commonwealth (2010) 241 CLR 118
[4]Spencer at 132 (25]. In Primary Health Care Ltd v Giakalis (2013) 38 VR 165 at [50] the Court of Appeal confirmed that a person injured in a transport accident has no right and no cause of action, unless that person has accessed one of the s93 gateways.
4 The first issue which arose was determining how the plaintiff put his case factually. In this case, as the plaintiff was self-represented and he drew his pleadings himself, this has posed some difficulties. This is because the Statement of Claim does not set out all relevant material facts. For example, at paragraph 4 it pleads only the plaintiff’s attendance on the first defendant in May 2015 “… to be consulted regarding dental works”. This omits the critical material facts as to what had led the plaintiff to consult with the first defendant. Helpfully the plaintiff filed a medical report of Dr Zelman Lew dated 24 April 2020 in support of his application. He also referred me to a VCAT decision of Ireland v Transport Accident Commission [2014] VCAT 1328, a decision of her Honour Judge Jenkins, Vice President, which he relied on. Those materials provide the basis for determining the facts material to this application. What they relevantly reveal is that the plaintiff sustained injury to his teeth on 20 March 2009, (“the first accident”), when his motorcycle hit a pothole and he was thrown off. He then consulted with the first defendant, Dr Benge. At this time, he made application to the TAC for compensation, which was accompanied by a letter from the Macedon Dental Group. This opined that he had fractured a three unit bridge, at teeth 11-22, and had associated mobility problems. Dr Benge advised that repair of this damage, and unassociated problems with his upper teeth, could best be completed by removing all upper teeth (a clearance) and installing a “all-on-four” series of implants. The total cost for this was said to be $24,000. The plaintiff did not proceed with this treatment.
5 The second accident occurred on 19 March 2012 (“the second accident”). At that time the plaintiff was riding his motorcycle when a car allegedly performed an illegal U-turn in front of him causing him to collide with the side of that vehicle. The plaintiff alleges that he sustained damage to an additional tooth, being tooth 15, at this time. He made claim upon the TAC for the damage caused in the first accident and the second accident and sought payment for treatment by Dr Benge. The TAC disputed payment in respect of this application, particularly in respect of the alleged dental damage caused in the first accident and the second accident. In total they disputed that damage to four teeth, being 11, 12, 22 and 15, occurred as a result of the motor vehicle accidents. The plaintiff was dissatisfied with the decision of the TAC and issued proceedings at VCAT. This resulted in the decision of her Honour Judge Jenkins, referred to earlier. In the result, her Honour was satisfied that all four teeth were injured as a result of a transport accident and ordered that the TAC accept the plaintiff’s claim. Her Honour made clear at paragraph [37] that the TAC’s liability only extends to those teeth injured in a transport accident.[5]
[5]Ireland v Transport Accident Commission [2014] VCAT 1328, at paragraph [37]
6 It appears that after this decision, the plaintiff then attended Dr Benge’s clinic in May 2015. At this time Dr Benge removed all upper teeth (the clearance) and performed the all-on-four dental implant procedure. This is at the point where the plaintiff’s pleadings begin and I have set that out above. However, the background is necessary to understand what had brought the plaintiff to Dr Benge in May 2015. Broadly speaking, the plaintiff alleges, and I accept for the purposes of this application, that the all-on-four implants and the clearance was a procedure performed negligently and has resulted in injury, loss and damage to the plaintiff.
7 Within one year the implants had failed and the plaintiff then came under the care of the second defendant, Mr Spencer, who carried out oral surgery to repair the previous implant failure in November 2016. The plaintiff alleges, and I accept for the purposes of this application, that such oral surgery was negligently performed and resulted in injury, loss and damage.
8 It is to be noted that the TAC indemnified the plaintiff for the repair of two out of the four failed implants placed during the all-on-four repair procedure performed by Mr Spencer in November 2016.
THE LEGISLATION
9 Section 3(3)(c) of the Transport Accident Act defines injury in the following terms:
“A reference to an injury or death in or as a result of or resulting from a transport accident, or to a person who is injured or dies in or as a result of a transport accident, is a reference to an injury or death directly caused by the driving of a motor vehicle, a railway train or a tram or to a person who sustains injuries that were, or whose death was, directly caused by the driving of a motor vehicle, a railway train or a tram.”[6]
[6]Section 3(3)(c) Transport Accident Act 1986 (Vic)
10 This was the relevant wording of the Transport Accident Act which governs this case.
11 The defendants’ case was that the plaintiff’s claimed injuries fell within this definition and therefore required the plaintiff to obtain a serious injury certificate prior to proceeding with these common law proceedings. The plaintiff’s position was that only four teeth were injured in the first and second accidents and he was instead complaining about the clearance and placement of the all‑on‑four procedure by both Dr Benge and Mr Spencer. As such he said his claim fell outside the definition above.
12 The starting point is the defendants’ reliance on the decision in Dunin v Harrison.[7] Broadly speaking that holds that where a plaintiff acted reasonably in obtaining treatment, it is the final state in which the plaintiff is left that is attributed to the transport accident. Even in situations where the treatment is negligent it is the outcome of the treatment which is still considered to be caused by the transport accident. Exceptions occur where there is gross negligence in the provision of medical treatment.
[7][2002] VSCA 125; 8 VR 596
13 There is no suggestion by the plaintiff that this has occurred in either his Statement of Claim or the report of Dr Lew or in the previous findings from VCAT.
14 Since the time that Dunin was decided, the definition of s3(3) has changed. That change can be described as requiring the plaintiff to prove a direct link between the injury and the driving of the motor vehicle. The policy principles espoused in Dunin still however apply, see Gennimatas.[8] This leaves it to an evaluation of the factual situation to determine if there is a direct and sufficient nexus between the ultimate injuries and the motor vehicle accident.[9] Here I find that this is undoubtedly established for the following reasons. Firstly, the plaintiff made a claim after both first and second accidents alleging damage to at least four upper teeth. Second, at least part of this claim was disputed by the TAC but ultimately the plaintiff persisted with his claim and was successful in VCAT. He alleges, at least implicitly then, that four teeth were injured as a result of the motor vehicle accidents. Thirdly, the plaintiff proceeded with the treatment recommended by Dr Benge after the first accident and then again after the second accident, suggesting that the treatment was at least in part necessitated by the motor vehicle accident. This much is all supported by the report of Dr Lew. It is impossible to now argue other than that the damage to the four teeth occurring in the first and second accident were in part the basis for the treatment that Dr Benge embarked upon.
[8]Gennimatas v Transport Accident Commission [2002] VSC 552; 5 VR 547, at paragraph [35]
[9]Larson v Transport Accident Commission [2004] VCAT 537, at paragraph [25]
15 It is insufficient to argue that, because the procedure performed by Dr Benge and subsequently by the second defendant went beyond those four teeth, they fall outside the relevant definition. So much was explained by his Honour Ashley J in Gennimatas.[10]
[10]Ibid, at paragraphs [35 – 40]
16 As a result, I am of the opinion that the facts clearly demonstrate that the clearance and use of all-on-four implants arose, at least in part, from the motor vehicle accident. It is that treatment which is complained about by the plaintiff as negligent and resulting in his ultimate final injuries. I am satisfied in all the circumstances that there is a direct proximate and causal relationship between the first and second accidents, the subsequent treatment and the final result. This means that the plaintiff must obtain a serious injury certificate in order to access one of the gateways allowing him to bring proceedings such as he has sought to bring now. Without such a serious injury certificate, the proceedings have no real prospects of success. As a result, the defendants’ application must succeed and I will dismiss the plaintiff’s claim.
17 However, it is to be recognised that the plaintiff is a self-represented litigant and while the Court cannot provide legal advice, the Court notes that given the above findings it may be possible for the plaintiff to make application to the TAC for such a serious injury certificate. In the event that such a serious injury certificate was obtained, this would then provide the plaintiff with leave to bring proceedings arguably against the driver in respect of the 2012 incident and in addition the defendants currently named in this proceeding.
18 In those circumstances, I propose to refer the plaintiff to the Victorian Bar Pro Bono Scheme in order to obtain Counsel’s advice in respect of his further rights.
- - -
0
5
0