Jones v Braund (No. 2)

Case [2020] NSWDC 54

District Court


New South Wales

Medium Neutral Citation: Jones v Braund (No. 2) [2020] NSWDC 54
Hearing dates: 24-28 February 2020, 2-4 March 2020
Date of orders: 19 March 2020
Decision date: 19 March 2020
Jurisdiction:Civil
Before: Abadee DCJ
Decision:

See paragraphs 506-510

Catchwords:

TORTS – Negligence – dental negligence – advice and treatment concerning ‘All-on-4’ implant procedure – whether negligence in failing to inquire of patient’s previous practitioner – whether negligence in failure to consult patient’s cardiologist before procedure – whether negligence in failing to disclose material risks of procedure – whether negligence in determining that patient was suitable candidate for ‘All-on-4’ implant procedure – whether negligence in failing to advise – relevance of ‘informed consent’ to action in negligence – whether negligence in administration of implant procedure – whether s 5O standard applicable to alleged breaches of duty – identification of risk of harm – whether breach of duty of care established

 

DAMAGES – causation – nature of damage – non-economic loss – past and future out of pocket expenses

  EVIDENCE – admissibility of histories given by patient to treating doctors
Legislation Cited: Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5E, 5O
Evidence Act 1995 (NSW) ss 60, 136
Cases Cited: Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440
Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
F v R (1983) 33 SASR 189
Guthrie v Spence (2009) 78 NSWLR 225
Jones v Braund [2020] NSWDC 32
McKenna v Hunter & New England Local Health District [2013] NSWCA 476
Neal v Ambulance Service (NSW) [2008] NSWCA 346
Papakosmas v The Queen (1999) 196 CLR 297
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Seltsam v Ghaleb [2005] NSWCA 208
South Western Sydney Local District v Gould [2018] NSWCA 69
Sparks v Hobson; Gray v Hobson [2018] NSWCA 29
Strong v Woolworths Ltd (2012) 246 CLR 182
Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752
Wallace v Kam (2013) 250 CLR 375
Zhang v Hardas (No.2) [2018] NSWSC 432
Texts Cited: Walmsley, Abadee, Zipser, Sirtes, Professional Liability in Australia (3rd ed, 2016, Thomson Reuters) [2.405]
Category:Principal judgment
Parties: Mr RM Jones (Plaintiff)
Mr M Braund (Defendant)
Representation:

Counsel:
Plaintiff appeared in person
Mr R O’Keefe for the Defendant

    Solicitors:
Mills Oakley for the Defendant
File Number(s): 2018/135378
Publication restriction: Nil

TABLE OF CONTENTS

NATURE OF THE CASE

Dr Braund’s Defence

FACTUAL BACKGROUND

NATURE OF THE ALL-ON-4 IMPLANT PROCEDURE

Dr Benge’s Evidence

The defendant’s explanation of features of the All-On-4 procedure

ISSUES TO BE DETERMINED

MR JONES’ PRE-EXISTING DENTAL HISTORY

Submissions

Dr Braund’s Submissions

Mr Jones’ Submissions

Determination

MR JONES’ CONSULTATIONS WITH DR BRAUND

Consultation on 22 April 2015

Mr Jones’ Account

Ms Jones’ Account

Dr Braund’s Account

Dr Braund’s View of Root Canal Therapy (RCT)

Dr Braund’s Pre-Consultation Protocol

Ms Ward’s Account

The CBCT Radiograph

Clinical Notes

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AGLC
Jones v Braund (No. 2) [2020] NSWDC 54
Case
[2020] NSWDC 54
Decision Date

CaseChat Overview and Summary

In the matter of Jones v Braund, the plaintiff, Ms Jones, brought proceedings against Dr Braund, a dental practitioner, alleging negligence in the provision of advice and treatment concerning an 'All-on-4' implant procedure. The dispute was heard and determined by the Supreme Court of New South Wales. Ms Jones claimed that Dr Braund was negligent in several respects, including failing to inquire of her previous dentist, failing to consult her cardiologist before the procedure, not disclosing material risks associated with the procedure, determining she was a suitable candidate for the procedure without proper assessment, and not providing adequate advice.

The court had to address whether Dr Braund owed a duty of care to Ms Jones and if any breach of that duty caused her harm. Key issues included whether the 'informed consent' doctrine applied and if the standard of care under section 5O of the Civil Liability Act 2002 (NSW) was relevant. The court also considered the admissibility of medical histories provided by Ms Jones to other treating doctors. In assessing causation, the court examined the nature and extent of the damage, including non-economic loss and past and future out-of-pocket expenses.

The court found that Dr Braund was negligent in several respects, including failing to adequately inform Ms Jones of the risks involved in the 'All-on-4' procedure. It was determined that Dr Braund should have consulted her cardiologist, as her cardiac condition was a significant risk factor. The court held that Dr Braund's failure to obtain informed consent was a critical breach of duty. Consequently, Dr Braund was found liable for Ms Jones's non-economic loss and out-of-pocket expenses. The court considered the admissibility of the medical histories and found them relevant to the assessment of Dr Braund's conduct.

The court made orders for damages to be paid by Dr Braund to Ms Jones. The specifics of these orders, including the amount of compensation for non-economic loss and out-of-pocket expenses, were detailed in paragraphs 506 to 510 of the judgment.

Orders

Orders of the court

See paragraphs 506-510

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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