Lee v Sang Won Oh Pty Limited, trading as “Dr Sam Oh & Associates”

[2025] NSWCATCD 15

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lee v Sang Won Oh Pty Limited, trading as “Dr Sam Oh & Associates” [2025] NSWCATCD 15

Hearing dates:

30 January 2025

Date of orders:

17 March 2025

Decision date:

17 March 2025

Jurisdiction:

Consumer and Commercial Division

Before:

JA Rose, General Member

Decision:

1.  The Applicant’s claim is dismissed.

Catchwords:

CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill

CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to fitness for particular purpose

CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to reasonable time for supply

Legislation Cited:

Australian Consumer Law (NSW)

Civil Liability Act 2002 (NSW)

Competition and Consumer Act 2010 (Cth)

Fair Trading Act 1987 (NSW)

Cases Cited:

Cigna Insurance Asia-Pacific Ltd v Packer (2000) 23 WAR 159

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234

Grant v Australian Knitting Mills Ltd [1935] UKPCHCA 1; (1935) 54 CLR 49

Letang v Cooper [1965] 1 QB 232

Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384

Read v Brown (1888) 22 QBD 128

Scenic Tours Pty Ltd v Moore [2018] NSWCA 74

Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871

TLK Transport Pty Ltd v Thornthwaite Pty Ltd t/as Yass Valley Mobile Mechanic [2014] NSWCATCD 147

Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708

Texts Cited:

S Walmsley and ors, Professional Liability in Australia (2nd edition, 2007)

Category:

Principal judgment

Parties:

Hyeon Sil Lee (Applicant)
Sang Won Oh Pty Limited (Respondent)

Representation:

HS Lee, in person (Applicant)
Dr S W Oh, company director (Respondent)

File Number(s):

2024/426251

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This proceeding arises out of a transaction between the applicant as the customer (the “applicant”) and the respondent as the supplier (the “respondent”), under which the respondent provided dental services, including supplying and fitting a dental implant into the applicant’s mouth in February 2020, and subsequent consultations and treatments.

2. By the application form which was lodged with the Tribunal on 16 November 2024, the applicant seeks orders that the respondent give her a refund, reimbursement and compensation on the ground that the dental implant failed, which the applicant says was caused by the respondent’s malpractice and medical negligence. In the “Reasons for the Order(s)” panel on the application form, the applicant described the basis of her claim as follows:

I have a reason why NCAT should place the order I’m asking for. This is related to the failure of my implant (#12), which was planted on 03/02/20 and removed on 04/07/23. I am disappointed that the service the dentist Dr Sam Oh provided was defective due to his dental malpractice and medical negligence. As a result, I suffered physical and psychological problems that could have been avoided if the signs of implant failure were checked during multiple treatments processes and damaged abutment had been detected/removed in a timely manner. A brief background of this case is as follows I had an episode on 15/11/21 when I visited the clinic for emergency care for the loose implant. After tightening the screws on the loose implant, the old crown was not replaced, and the dentist ordered a new one. (Later, my periodontist checked for me that the first x-ray showing the cracked Abutment was taken on 05/03/22, which was when I visited the clinic for a routine check-up for 6 months.) When I made a visit to the clinic again for the 6 monthly regular checkup on 17/09/22, Inflammation of the gums was found. According to the dentist’s clinical notes on this date shows “noted 12 pus discharge on buccal palpation and 4 mm bone deficiency noted. 12 lebial bone loss detected.” Since then, I made continuous visits to the clinic to take the treatments on my condition getting worse. After all, the dentist referred me to a Periodontist on 10/03/23. On 04/07/24, during the Gum surgery (a surgical procedure in which the flesh of the roof of the mouth is removed and implanted into the gums), my Periodontist identified the Abutment with crack on. It was immediately removed with by consent and the Periodontist my periodontist [sic] checked for me that the first x-ray showing the cracked Abutment was taken on 05/03/22.

The respondent denies the claim in full.

3. The matter came before the Tribunal for conciliation and an initial (group list) hearing on 5 December 2024. Conciliation was not successful, so the Tribunal (Member Ruschen) made orders adjourning the proceeding for hearing as a special fixture on a date to be confirmed by the Registrar. In doing so, the Member made orders for the parties to provide to the Tribunal, and to each other, copies of all documents on which they intended to rely at the hearing, by certain dates. The Member also noted that the amounts then claimed by the applicant included:

1. $7480 as a full refund of the applicant’s treatment costs (which the respondent stated included other implants and other treatment that was not in issue);

2. $5495.20 incurred in rectifying the failed implant through other specialists;

3. $3775 for economic loss in the form of the applicant’s own time spent travelling to get treatment and undergoing treatment (being 75.5 hours at $50 per hour); and

4. $20,000 in compensation for non-economic loss – chiefly pain and suffering.

The hearing

4. The proceeding came before me for hearing as a special fixture on 30 January 2025, with an allocation of 3 hours. The applicant appeared in person. She was also assisted by a Korean-speaking interpreter that was arranged by the Tribunal. The respondent was represented by its director, Dr Sam Oh (“Dr Oh”).

5. In opening her case, the applicant stated that the respondent implanted a manufactured replacement for her #12 tooth ^[1] on 3 February 2020, and that the implant was subsequently removed by a periodontist on 4 July 2024. She alleged that the respondent had breached the consumer guarantee provisions of the Australian Consumer Law (NSW) (the “ACL”), through:

1. failures to provide dental services with due care and skill;

2. failures to provide services that were fit for a particular purpose; and

3. failure to provide his services within a reasonable time.

at various times between 3 February 2020 and 10 March 2023, when the respondent referred the applicant to a periodontist. The applicant also stated that the updated value of her claim was $36,727.80, plus the cost of making a new crown for her #12 tooth.

1. According to the chart produced by Dr Oh, the #12 tooth is the first bicuspid tooth in the upper left quadrant of the patient’s mouth. The #22 tooth is the corresponding tooth in the upper right quadrant of the patient’s mouth.

6. The respondent again denied the applicant’s claim. He argued, in summary, that he did what a competent dentist would have done before referring the applicant to a periodontist on 10 March 2023, and that his services were fit for purpose and provided in reasonable time. He also asserted that the amounts claimed by the applicant were excessive, in any event.

7. The hearing proceeded in the usual manner. After the parties outlined their respective cases, the parties were each given the opportunity to present the evidence that they wish to rely on and to present evidence in response to the evidence produced by the other party. They were also given the opportunity to question the other party’s witnesses on their evidence. Lastly, both parties were given reasonable opportunities to present their arguments to the Tribunal and to make submissions in response to the arguments presented by the other party. I am satisfied that both parties have received procedural fairness in the conduct of the hearing.

8. I reserved my decision at the end of the hearing. For the reasons that I now set out, I have decided that the applicant’s claim does not succeed, and should be dismissed.

The evidence

(a)   The applicant’s evidence

9. The applicant relied on the bundle of documents that she had lodged with the Tribunal on 19 December 2024 (exhibit A1). Those documents included:

1. a statement of the orders sought and the reasons for the orders;

2. the applicant’s witness statement;

3. a chronology of relevant events;

4. a further statement by the applicant, setting out the amounts sought by her;

5. a bundle of clinical notes and reports from the respondent and from various other dental service providers;

6. a bundle of invoices/receipts or proof of payment from the respondent and from various other dental service providers;

7. a treatment plan estimate prepared by her periodontist, Doctor Beth Kang (“Dr Kang”);

8. a bundle of emails and other correspondence;

9. written submissions concerning the facts of the case and the basis on which the applicant asserts the Tribunal should make the orders sought; and

10. a supporting letter from the applicant’s psychologist.

The respondent did not object to any of those documents being used as evidence in the proceedings.

10. The applicant also gave sworn oral testimony in which she verified the truth of the matters stated in documents (1)-(4) and (9), listed above. The respondent did not seek to cross-examine the applicant on her evidence.

(b)   The respondent’s evidence

11. The respondent relied on the bundle of documents that it had lodged with the Tribunal on 9 January 2025 (exhibit R1), which included Dr Oh’s written statement, together with various documents and bundles of documents that were referred to in that statement. The applicant did not object to any of those documents being used as evidence in the proceeding.

12. Dr Oh also gave sworn oral testimony in which he verified the truth of the matters stated in his statement. He was also asked questions on his evidence by the applicant, and by the Tribunal.

13. I have taken all of that evidence into consideration in coming to my decision.

The applicable law

14. The ACL is a Commonwealth law, which is made as part of the Competition and Consumer Act 2010 (Cth). Section 28 of the Fair Trading Act 1987 (NSW) the “FT Act” applies the text of the ACL, as it exists from time to time, as a law of New South Wales.

15. Part 3-2 of the ACL imposes a series of compulsory guarantees on all suppliers of goods and services to consumers. Relevantly, s 60-62 of the ACL provide:

60    Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

61    Guarantees as to fitness for a particular purpose etc.

(1)    If:

(a)    a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)    the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;

there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.

(2)    If:

(a)    a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)    the consumer makes known, expressly or by implication, to:

(i)    the supplier; or

(ii)    a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;

the result that the consumer wishes the services to achieve;

there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.

(3)    This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.

(4)    This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.

62 Guarantee as to reasonable time for supply

If:

(a)    a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)    the time within which the services are to be supplied:

(i)    is not fixed by the contract for the supply of the services; or

(ii)    is not to be determined in a manner agreed to by the consumer and supplier;

there is a guarantee that the services will be supplied within a reasonable time.

16. Part 5-4 of the ACL (notably, ss 267 to 269) sets out the remedies that a consumer can seek against a supplier in respect of the failure of supplied services to comply with one or more of those guarantees. The precise remedies that are available depends on various factors, including whether the failure to meet the guarantee is a “major failure”.

17. Part 1A of the Civil Liability Act 2002 (NSW) (the “CL Act”) applies to any claim for damages for harm resulting from “negligence”, regardless of whether the claim is brought in tort, in contract, under statute or otherwise: CL Act, s 5A. Negligence is defined in s 5 of the CL Act as “failure to exercise reasonable care and skill”. Consequently, as s 60 of the ACL, as applied in New South Wales by the FT Act, is based on a failure to exercise reasonable care and skill, a claim under s 60 of the ACL falls within the scope of a claim for “negligence” for the purposes of Part 1A of the CL Act.

18. Part 1A of the CL Act reframed the law of negligence in New South Wales, by establishing statutory principles for the determination of important elements of negligence, including duty of care, causation and professional negligence. Importantly, s 5O(1) and (4) of the CL Act provide that (my underlining):

(1)    A person practising a profession (“a professional”) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

…

(4)    Peer professional opinion does not have to be universally accepted to be considered widely accepted.

19. Additionally, Part 2 of the CL Act places limitations on fixing damages in personal injury cases for economic and non-economic loss (which includes pain and suffering, loss of amenities of life and disfigurement). For that purpose, “personal injury damages” is defined to mean damage that relate to the death or injury of a person: CL Act, s 11.

20. I have considered the applicant’s claims in accordance with these principles.

Jurisdiction

21. Part 6A of the FT Act seeks to provide remedies for, and the straightforward resolution of, disputes concerning the supply of goods and services to consumers. Section 79I, within that Part, empowers consumers (as defined in Part 6A) to apply to the Tribunal for determination of a “consumer claim”. Section 79J gives the Tribunal jurisdiction to hear and determine a consumer claim that is the subject of an application under the Part, subject to the limitations specified in that Part.

22. I am satisfied on the evidence produced by the parties that:

1. the respondent provides dental services in the course of carrying on a business, and is a “supplier” for the purposes of Part 6A: s 79D.

2. The applicant is a “consumer” for the purposes of Part 6A, including because (firstly) the respondent has not sought to argue to the contrary: s 79H; and (secondly) the relevant services were “supplied” to the applicant: s 79D.

3. The applicant’s claim seeks one or more of the remedies specified in s 79D – namely, orders for the payment of money for various amounts – in respect of a claim that arises from the supply of those dental services by the respondent to the applicant. Consequently, her claim is a “consumer claim” for the purposes of Part 6A: s 79D.

4. The claim has a sufficient connection with New South Wales, including because the relevant services were supplied to the applicant in New South Wales: s 79K.

23. Consequently, subject to determining whether the claim has been lodged within the time limits specified in s 79L (which I will deal with separately, below), I am satisfied that the Tribunal otherwise has jurisdiction to hear and determine the applicant’s claim. I am also satisfied that the relief sought by the applicant is within the Tribunal’s power under ss 79N-79V of the FT Act.

The limitations issue

24. Section 79L of the FT Act places limits on the Tribunal’s jurisdiction to hear and determine a consumer claim. That section provides:

79L Limitation periods

(1)    The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply--

(a)    the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged,

(b)    the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged.

(2) Nothing in this section affects any period of limitation under the Limitation Act 1969.

25. Given that the applicant’s application was lodged on 16 November 2024, the practical effect of that section is that the Tribunal does not have jurisdiction to hear and determine the applicant’s claim to the extent that either:

1. the services to which the claim relates were supplied (or, if supplied instalments, were last supplied) to the applicant earlier than 16 November 2014; or

2. the cause of action giving rise to the claim first accrued earlier than 16 November 2021.

The second of these limits is the more critical.

26. The term “cause of action” is not defined in the FT Act. A cause of action is the “factual situation the existence of which entitles one person to obtain from the court a remedy against another person”: Letang v Cooper [1965] 1 QB 232. See also Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 235, per Wilson J. In other words, a cause of action is constituted by “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his [or her] right to a judgement”: Read v Brown (1888) 22 QBD 128 at 131. See also Cigna Insurance Asia-Pacific Ltd v Packer (2000) 23 WAR 159.

27. The elements which give rise to a cause of action may occur at different times. Consequently, the date on which a cause of action accrues is the date on which the last fact necessary to give rise to the right to sue occurs: Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384. It follows that for the Tribunal to have jurisdiction to hear and determine the applicant’s claim one or more of the elements giving rise to the claim must have occurred no earlier than 16 November 2021.

28. In negligence cases, the last element to accrue is normally the loss or damage that arises from the respondent’s failure to take reasonable care. I have therefore considered the applicant’s claim to be within time if either (1) the act or omission alleged against the respondent occurred on or after 16 November 2021, or (2) the applicant claimed to suffer loss or damage for the first time on or after that date, in respect of acts or omissions that occurred before that date.

29. On this basis, I am satisfied that the applicant’s claim is within time as the first allegation of pain and suffering arising from the respondent’s work was not made until 2022, many months after the #12 implant was inserted. I am therefore satisfied that the Tribunal has full jurisdiction to hear and determine the applicant’s claim.

Findings of fact

30. A large part of the parties’ evidence concerning the background facts of the matter was not subject to any significant controversy. More controversial was the factual question concerning whether the respondent’s services failed – as a matter of fact – to comply with the terms of the applicable statutory guarantees, and identifying when the applicant first suffered loss or damage arising out of any such failure. I will deal with the facts relating to those particular questions in detail below.

30. I am satisfied by the evidence produced by the parties, and on the balance of probabilities, that the background facts of the matter are as follows. In this regard, and in the absence of evidence to the contrary, I accept the treatment records produced by Dr Oh as accurate records of the attendances made by the applicant to the clinic, of the observations made by the dentists at the clinic during those attendances, and of the work undertaken by the dentists at the clinic on each of those occasions.

31. The respondent is a company that was established in May 1996. It trades from premises in London Street, Campsie NSW. Dr Oh is an AHPRA-registered dentist and the principal dentist of the respondent’s clinic. The clinic employs administrative and dental nursing staff. A number of other dentists also work at the clinic. The respondents provides its services in trade and commerce.

32. Dr Oh graduated from Sydney University with a Bachelor of Dental Surgery in 1985. He has practised as a dentist continually since first being registered in 1986. For two years, he was a dental officer at Westmead Dental Teaching School. In 1986, he opened Sam Oh Dental Clinic in Sydney. He has completed training and education to allow the scope of his practice to include the placement of implants. He says, and I accept, that he has completed continuing professional development as part of his registration with the Dental Board of Australia. He is an ongoing member of the Australian Dental Association.

33. Dr Oh has significant experience in the placement of implants. He asserts, and I accept, that during the period of 6 months between 17 June 2019 and 3 February 2020 (when the applicant’s #12 tooth was removed and the implant was placed), he successfully placed over 200 implants for other patients.

34. The applicant has been a patient of the clinic for several years prior to the events giving rise to this application. As recorded in Dr Oh’s statement (which I accept), her treatment at the clinic has included:

1. a extraction of natural tooth #12 on 17 May 2019, performed by Dr Oh;

2. the placement of an implant at the #12 site (the “#12 implant”) on 3 February 2020, performed by Dr Oh;

3. the placement of an abutment and crown on the #12 implant on 24 July 2020, performed by Dr Oh;

4. the replacement of the Crown on the #12 implant on 17 December 2021, performed by Dr Oh;

5. curettage (a medical procedure involving scraping or scooping out tissue) of the #12 implant site and a bone graft on 19 September 2022, performed by Dr Oh; and

6. referral to a specialist periodontist, Doctor Paul Tsai on 10 March 2023, also by Dr Oh.

During the period between the 3 February 2020 and 10 March 2023, the clinic took various radiological images of the applicant’s mouth on at least 6 occasions, as described in Dr Oh’s statement.

36. The dental implant that was used consisted of three components:

1. a titanium post that is surgically placed into the jawbone to act as a root for a missing tooth (endosseous implant);

2. an attachment section which screws into the implant and is designed to receive a crown (abutment head); and

3. the visible part of the artificial tooth, usually made of porcelain or ceramic, that is attached to the abutment (the crown).

37. On 11 May 2019, Dr Esther Lee (“Dr Lee”) at the clinic identified that the #12 tooth in the applicant’s mouth had fractured. Dr Lee discussed with the applicant the options for treating that tooth. The applicant returned to see Dr Lee on 17 May 2019, when they agreed on a plan to extract teeth #12 and #22 and to place implants at those positions the following year. The applicant was to wear a denture in the meantime to fill the gap created by the two extractions.

38. Dr Oh extracted tooth #12 on 27 May 2019 and issued her with a denture to fill the gap left by the extractions. On 17 June 2019, Dr Oh placed an implant at the site of tooth #22. No issues have been raised concerning that implant.

39. On 3 February 2020, Dr Oh placed an implant at the site of tooth #12. The applicant attended for a follow-up consultation with Dr Oh on 5 June 2020, 4 months after the #12 implant was placed. The healing of the site was checked and found to be sound. An impression was also taken for porcelain crowns to be made and inserted.

40. On 24 July 2020, the applicant returned to see Dr Oh. The crowns for the implants at teeth #12 and #22 were successfully placed. The colour and fit was found to be acceptable and the applicant was given advice about monitoring and care.

41. On 13 November 2020, the applicant attended Dr Lee for a checkup. Dr Lee noted a 4 mm pocket at the #12 implant. After taking an image of the site she provided advice to the applicant about maintaining the implant, including water flossing. The applicant returned to see Dr Lee on 8 January 2021 concerning tooth #14. Dr Lee cemented a crown on tooth #14 on 19 January 2021.

42. The applicant attended on Dr Oh on 10 May 2021. There was no issue with the implants. As previously planned, the aesthetics of teeth #11 and #21 were changed to better match the crowns on the implants at #12 and #22. Dr Oh noted that the applicant was happy with that composite work.

43. The applicant saw Dr Lee on 2 October 2021, concerning discomfort in the general area of her left-hand side, back teeth when eating. No concerns were raised about the #12 implant. She returned to see Dr Lee 2 weeks later, when treatment was provided to teeth #47 and #37, in the back of her mouth.

44. On 15 November 2021, the applicant consulted with Dr Oh, complaining that the Crown on the #12 implant was loose. There was no report of any pain or discomfort at that time. After taking an x-ray, Dr Oh concluded that there was no fracture or other apparent finding. He offered to issue a new crown to the applicant at no cost, which the applicant accepted. That new crown was fitted on 17 December 2021. Dr Oh had no concerns about any fracture to the implant at that time, and the plan was to continue to monitor the implanted teeth.

45. On 5 March 2022, the applicant consulted Dr Lee for a checkup. Dr Lee noted that the site of the #12 implant closest to the cheek (the buccal side) was tender when palpated (felt with the practitioner’s fingers). When Dr Lee pushed on that part, there was a slight pus discharge and she recorded buccal bone deficiency, meaning the bone in the area was thin. After taking a periapical x-ray (which is a dental X-ray that shows the entire tooth, from the crown to the tip of the root, and the surrounding bone structure), Dr Lee noted that the bone around the #12 tooth was sound and unchanged from previous imagery. No fracture was noted and the #12 implant was to be monitored further. I will return to this x-ray, below.

46. On 9 July 2022, the applicant had a further checkup with Dr Lee. The #12 implant presented with a bruise-like discolouration at the gum. Dr Lee again noted a pocket near the tooth but again recorded that there was no concern. The applicant wanted Dr Lee to make a new occlusal splint (which is a custom-made, removable dental appliance designed to protect teeth and jaw from damage caused by grinding or clenching, particularly during sleep), as her previous one was worn. At the applicant’s request, Dr Lee issued a new occlusal splint on 23 July 2022.

47. On 17 September 2022, the applicant consulted Dr Park for a routine checkup, scale and clean. The applicant reported that she had been diagnosed with cervical spondylosis (arthritis of the neck, caused by age-related wear and tear of the bones and discs in the neck) and received a steroid injection. Dr Park noted no pain and no mobility from the implants, however Dr Park also noted that the #12 implant was tender when tapped, that there was a slight discomfort on the buccal when palpated, and there was a 4 mm pocket on the disto buccal side of the implant (being the cheek-side surface of the tooth that is farthest away from the midline of the mouth). Querying buccal bone deficiency, Dr Park took an x-ray but noted that there was no significant change in the bone around the #12 tooth compared to imagery taken in 2020. He advised the applicant to consult with Dr Oh about the #12 implant.

48. In his statement Dr Oh concedes (and I accept) that, “with the benefit of hindsight” the periapical x-rays that were taken at the clinic on 5 March 2022 and 17 September 2022 showed evidence of a small fracture of the #12 implant. He concedes from this that there was a vertical fracture of the #12 implant as early as 5 March 2022.

49. As recommended by Dr Park, the applicant consulted with Dr Oh 2 days later, on 19 September 2022. The applicant reported no pain associated with the #12 implant. On examination, Dr Oh noted a little bit of yellowish pus discharge on pressing around that implant, although there was no swelling, bleeding or pain. After a long discussion with the applicant, Dr Oh performed a flap incision for visual examination as well as cleaning. He explained to her that it was most likely she would need a bone graft for the defect. He noted a granulated tissue 4 mm bony defect, which was filled with Cerasorb, a filler for bone defects, before the gum was sutured and closed. No fracture of the #12 implant was noted at that time.

50. On 24 October 2022, the applicant returned to Dr Oh for review, reporting no pain. Dr Oh noticed that there was still a small amount of pus, on pressing the buccal area and prescribed antibiotics to the applicant. The applicant returned to see Dr Oh on 30 December 2022. Again, there was no pain associated with the #12 implant, although the applicant reported some discomfort in quadrant 4 (the right-side of her lower jaw), which was now better. On examination, Dr Oh noted periimplantitis of the #12 implant (that is, inflammation in the peri-implant connective tissue surrounding the implant), identifying that the gum was red and there was a 2 mm lump. He suggested improving her oral hygiene and monitoring the situation.

51. The applicant returned to see Dr Oh on 10 March 2023. She again reported no issue or concern with the #12 implant. Upon examination, Dr Oh noticed that the pocket on the buccal of the #12 implant had increased to 6 mm and there was still some pus when the buccal was pressed but no sinus track. He explained to the applicant that the wound was not healing and that it was unlikely to improve with time. They discussed options, including (1) referral to a periodontist (a gum specialist); or (2) continuing to monitor and to treat any symptoms of infection or deterioration, including considering removing the implant and replacing it with another implant, a cantilever bridge or a denture. The applicant agreed with Dr Oh for a referral to a periodontist, and Dr Oh made an appointment with Doctor Paul Tsai, a periodontist in Campsie, to see the applicant.

52. Dr Oh’s email to Dr Tsai, attaching the referral letter, asked Dr Tsai to provide “further evaluation and treatment”. It included a copy of the applicant’s referral form and an x-ray. The referral form referred to the implant which was done on 3 February 2020 and to the 6 mm pocket that had been identified on probing. Noting that the implant previously undertaken on the #22 tooth was fine, Dr Oh asked Dr Tsai to “please access and treat #12 … She is of good health”.

53. The applicant later contacted the clinic by phone to say that she preferred a Korean periodontist. On 25 March 2023, the clinic sent an email to the applicant for provision to a periodontist of her choice, which set out further details about the applicant’s dental history. The clinic also provided copies of x-rays to the applicant for that purpose.

54. After 25 March 2023, the applicant did not consult further with the clinic until 16 August 2024, when she came to see Dr Oh and informed him that the #12 implant had been extracted by Dr Kang. In that period, the applicant consulted a number of independent dentists who also did not diagnose that there was any fracture of the #12 implant, despite performing up-to-date x-rays for those consultations. Those consultations included:

1. Dr Alex Hunyh, dentist, on 28 March 2023;

2. Dr Jane Na, dentist, on 29 March 2023;

3. Dr David Jang, on 29 March 2023;

4. Dr Jun Yoong Park, on 17 May 2023; and

5. Dr Kang, on 1 June 2023, 23 August 2023, 21 September 2023, and 29 January 2024.

On 4 July 2024, Dr Kang identified a vertical fracture at the mid-implant level of the #12 implant while she was undertaking surgery on the gum in the area of the implant. She then removed that implant after discussing the issue with the applicant.

Consideration - the due care and skill claim (ACL, s 60)

The applicable legal principles

55. Section 60 of the ACL specifically requires that services provided to a consumer must be rendered with due care and skill. This statutory obligation enshrines the common law negligence standard into all consumer transactions for the provision of services, to ensure that consumers receive services that meet a certain standard of quality and competence. If a service provider fails to meet this standard, the consumer may be entitled to remedies such as repair, replacement, or compensation.

56. The law of negligence is based on the failure of a person to exercise due care when that person had a legal duty to take reasonable care to avoid injuring or causing loss or damage to another person. Consequently, to establish a negligence claim in common law, an applicant or plaintiff must prove three key elements: (1) that a duty of care was owed, (2) that the duty was breached, and (3) that the breach of duty caused damage that should be compensated. In greater detail those elements are:

1. Duty of Care: The respondent had a legal obligation to act with a certain standard of care towards the applicant, and that the applicant was within the foreseeable scope of that duty.

2. Breach of Duty: That the respondent’s conduct fell below the required standard of care, meaning they acted unreasonably or failed to take reasonable precautions.

3. Causation: The applicant must demonstrate a causal link between the respondent’s breach of duty and the resulting damage or harm suffered by the applicant, and that the damage concerned was sufficiently proximate – that it was not too remote for the defendant to keep in mind. This means the damage would not have occurred “but for” the defendant’s negligence (factual causation) and was a reasonably foreseeable consequence of the respondent’s breach of duty (scope of liability).

4. Damage: The applicant must have suffered actual harm or injury as a result of the defendant’s negligence.

57. The common law imposes on doctors a duty to exercise reasonable care and skill in the provision of professional advice and treatment: Rogers v Whitaker (1992) 175 CLR 479. That duty is a “single comprehensive duty covering all ways in which a doctor was called upon to exercise his skill and judgment”, extending to the examination, diagnosis and the treatment of the patient and the provision of information in appropriate cases: Gover v South Australia (1985) 39 SASR 543 at 551. These principles of liability apply equally to dentists: Walmsley and ors, Professional Liability in Australia (2^nd edition, 2007) at [2.300]. Part 1A of the CL Act codifies these principles in New South Wales.

58. Under negligence law, professionals are required to exercise the level of care and skill that a reasonably competent professional in their field would exercise. As a rule, a professional doctor (etc) is not negligent if acting in accordance with a practice accepted at that time as proper by a responsible body of medical opinion even though other doctors adopt a different practice: (the “Bolam” principle):

In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment: Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 at 881H, per Lord Scarman.

This is often referred to as the “reasonable skill and care” standard and is enshrined in s 5O of the CL Act, set out above. If a professional fails to meet this standard and causes harm or loss, they can be held liable for negligence or, under the ACL, for breach of the guarantee in s 60.

59. A professional may have provided their services with due care and skill even if they did not achieve a particular result, or if the outcome of their work has resulted in some injury, loss or damage to their client. This is because the obligation to exercise due care and skill is about the process and the standard of the professional’s work, and not necessarily the outcome. For example: 

1. Reasonable Efforts: The professional might have taken all reasonable steps and precautions that a competent professional would take under similar circumstances. This includes using appropriate materials, following professional standards, and applying their expertise correctly. 

2. External Factors: Sometimes, factors beyond the professional’s control can affect the outcome. For example, unexpected weather conditions, defective materials not supplied by the professional or the intervention of third parties can impact the final result. 

3. Complexity and Uncertainty: Certain tasks may have inherent complexities or uncertainties that make it difficult to guarantee a specific result or outcome. For instance, diagnosing and fixing an intermittent fault can be challenging, and despite the professional’s best efforts, the issue might not be fully resolved on the first attempt. 

4. Client Instructions: If the client provides specific instructions or constraints that limit the professional’s ability to achieve the desired result, the professional may still be considered to have exercised due care and skill if they followed those instructions competently. 

5. Professional Judgment: The professional might have exercised their professional judgment in a way that was reasonable at the time, even if it did not lead to the desired outcome. Professional judgment involves making decisions based on experience, knowledge, and the information available at the time. 

60. In summary, the standard of due care and skill focuses on the quality and appropriateness of the professional’s actions and decisions, rather than the result which was achieved. This ensures that professionals are judged fairly based on their professional conduct and efforts, rather than solely on the outcome of their work. 

Applying the principles to the applicant’s claim

61. There is no doubt that the respondent’s services were provided in trade or commerce, or that the respondent owed the applicant a single comprehensive duty of care, to exercise the degree of skill and care that an ordinary, skilled and reasonably competent professional dentist would exercise, in accordance with these principles. As noted in the authorities discussed above, the standard of that care is a matter of medical judgment.

62. Section 5B of the CL Act outlines the general principles for determining negligence, stating a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant, and a reasonable person would have taken precautions. Subsection (2) further provides that in determining whether a reasonable person would have taken precautions against a risk of harm, the court (or tribunal) is to consider (amongst other relevant things): (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; and the social utility of the activity that creates the risk of harm. As the moving party, the applicant has the burden of proving these elements on the balance of probabilities.

63. Unfortunately for the applicant, she has not attempted to deal with any of those principles in attempting to establish that the respondent failed to exercise reasonable care and skill. The highest the evidence goes is to establish that:

1. Dr Oh removed the #12 tooth in May 2019.

1. Dr Oh obtained, supplied and fitted an implant replacement for the #12 tooth on 3 February 2000, and an abutment and crown on that implant on 24 July 2000.

2. Dr Oh replaced the crown on the #12 implant on 17 December 2021, after it had become loose.

3. Dr Oh and other doctors at the clinic identified and sought to treat problems in the gum and bone surrounding the #12 implant, between November 2021 and 10 March 2023, but they did not notice or identify any fracture in the implant or its abutment, including after taking two x-rays of that part of the applicant’s mouth.

4. The applicant went to five other dentists/periodontists after 10 May 2023, but none of them diagnosed a fracture of the #12 implant before 4 July 2024, including after taking their own x-rays of that part of the applicant’s mouth over that period.

5. Dr Kang only found the fracture in the #12 implant on 4 July 2024, when she operated on the applicant’s gum and raised the buccal flap after the applicant reported to her (but not to Dr Oh) bleeding from the site of the #12 implant, but no pain.

64. I accept Dr Oh’s evidence that a fracture line shown on an x-ray is not conclusive evidence of fracture of any part of an implant, and that the x-ray must be looked at with other more definitive evidence pointing to that, like clinical examination of signs and symptoms like pain or movement of the implant. I also accept his evidence that those signs were not present when he examined the applicant. That evidence is corroborated by the clinical notes produced by both parties, which have not been contradicted.

65. As the respondent has submitted, the applicant has not provided any expert evidence addressing (a) when the fracture of the implant occurred; (b) why the fracture occurred; or (c) whether the fracture was the result of a lack of due care on the part of the dentists at the clinic. Further to that, the applicant has not produced any expert evidence to address either (d) what (if anything) a competent professional dentist would have done differently which would have allowed them to identify a fracture in the implant; or (e) what (if anything) a competent professional dentist would have done differently to treat the issues around the #12 implant in the circumstances that presented to Dr Oh and the other dentists at the clinic in November 2021-March 2023. It has therefore not been demonstrated that the respondent failed to exercise the degree of care and skill that would be expected from a professional dentist in the same circumstances.

66. As the applicant has not established this part of her claim to the civil standard, being the balance of probabilities, this part of her claim must fail.

Consideration – the fitness for purpose claim (ACL, s 61)

The applicable legal principles

67. Section 61(1) imposes a guarantee that the supplier’s services will be reasonably fit for any particular purpose disclosed by the consumer. In addition to requiring that the supply be to a consumer and occur in trade or commerce, the key pre-condition to this guarantee applying is that the consumer must have made known to the supplier any particular purpose for which the services were being acquired. This means that a definite purpose must be expressly or impliedly communicated to the supplier: Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708 at [331] and [340]. Similarly, s 61(2) imposes a guarantee that the supplier’s services will be such that they might reasonably be expected to achieve the result disclosed by the consumer.

68. Where the “particular purpose” for which services are acquired might be the only purpose for which someone might want to acquire them, then there is no need to specify in terms the particular purpose for which the buyer requires the services: see Grant v Australian Knitting Mills Ltd [1935] UKPCHCA 1; (1935) 54 CLR 49; Scenic Tours Pty Ltd v Moore [2018] NSWCA 74 at [225]-[226]. Scenic Tours concerned a customer who went on a cruise. The Court of Appeal found that it was not necessary for Mr Moore to show that he had a more specific purpose than simply wishing to experience the services to be supplied by Scenic in connection with the cruise conducted in accordance with the itinerary published in a brochure. It was open to the judge to infer from the dealings between the parties that Mr Moore had implicitly made known to Scenic that he was acquiring the services supplied by Scenic for the particular purpose of experiencing the cruise in the terms that was published by Scenic and booked by him.

69. By the use of the word “reasonably”, the two guarantees are not expressed in absolute terms. The reasonableness standard is confirmed by s 61(3) which provides that the guarantee does not apply if the circumstances show that the consumer did not rely on the skill or judgement of the supplier, or that it was unreasonable for the consumer to rely on their skill or judgement.

70. The plaintiff or applicant has the burden of establishing all of the elements, including that (1) he or she had made known to the supplier any particular purpose for which the services were being acquired, and (2) that the services, and any product resulting from the services, were not reasonably fit for that purpose.

Applying the principles to the applicant’s claim

71. There is again no doubt that the respondent’s services were provided in trade or commerce. The evidence produced to the Tribunal does not demonstrate that the applicant made known to Dr Oh, expressly or by implication, that she was engaging his services for any particular purpose beyond the most general of implied purposes, being for Dr Oh to use his training, experience and skills to treat the issues that were presenting in her gums around the #12 implant. For example, there is no evidence to suggest that the applicant expressly or impliedly made known to Dr Oh that she wanted him to investigate the #12 implant for fractures or to remove the #12 implant. Her instructions to Dr Oh, as recorded in the uncontested clinical notes, were much more general than that.

72. From the evidence before the Tribunal, the applicant presented herself to the respondent’s clinic with a collection of symptoms that constituted her complaint. In doing so, she made known to the treating dentists no more than she wanted them to investigate her complaint and use their skill and judgement to devise and implement a treatment for her concern.

73. The evidence produced in the proceeding does not establish that the services provided by Dr Oh and the clinic were less than reasonably fit for that general-purpose. The treating dentists – particularly Dr Oh – investigated the issues that the applicant presented to them (including by conducting personal examinations and obtaining x-rays of the affected area), formed conclusions based on those issues, the applicant’s complaints and their own investigations, and set about treating the issues that they had identified. The applicant has not adduced any evidence that demonstrates or establishes that the respondent’s services breached the guarantees in either s 61(1) or s 61(2). In those circumstances, this part of the applicant’s claim must also fail.

Consideration – the reasonable time for supply claim (ACL, s 62)

The applicable legal principles

74. As set out above, s 62 creates a guarantee that services will be supplied “within a reasonable time”. However, the guarantee only arises if the time within which the services are to be supplied is (i) not fixed by the contract for the supply of the services; or (ii) not to be determined in the manner agreed to by the consumer and the supplier.

75. As stated in the Explanatory Memorandum for the bill that introduced s 62, the time that is reasonable will vary significantly depending on the nature of the services to be provided. Further, the courts and tribunals will need to consider all the circumstances that apply to a particular case to determine the time period that is reasonable: at [7.64].

76. To be successful in proving a claim under s 62, an applicant must therefore establish that (i) the time within which the services were to be provided was not fixed in a manner excluded by s 62; and (ii) the respondent’s services were not provided within a reasonable time, having regard to all applicable circumstances.

Applying the principles to the applicant’s claim

77. It is again beyond doubt that the respondent’s services were provided in trade or commerce. Each instance of delivery of the respondent’s services took place during an appointment that was made and kept by the applicant. There was no agreement between the parties that the issues presented in the applicant’s mouth would be resolved by the respondent within any fixed time period. Similarly, there was no agreement between the parties which determined the time within which the services were to be completely supplied. Consequently, I am satisfied that there was a guarantee that the respondent’s services would be supplied within a reasonable time.

78. The main issue raised by the applicant is that inflammation of the gums was found when she visited the clinic for her six-monthly regular checkup on 5 March 2022, yet this was not treated successfully before the respondent referred the applicant to a periodontist on 10 March 2023, about a year later. In particular, she asserts that the respondent did not identify or treat the fracture in the abutment on the #12 implant within that time period.

79. As the Tribunal identified in TLK Transport Pty Ltd v Thornthwaite Pty Ltd t/as Yass Valley Mobile Mechanic [2014] NSWCATCD 147 at [147], what is “reasonable” depends on the nature of the services and any other factors influencing time taken.

80. The evidence establishes that the applicant attended the respondent’s clinic 7 times between 5 March 2022 and 10 March 2023 (inclusive of both dates). The initial part of that period (to 17 September 2022) involved monitoring of the implant and the gum while less invasive measures were taken, such as providing the applicant with a new splint and improving the applicant’s dental hygiene through routine checkups, scaling and cleaning. The first time that any discomfort in the gum was noticed was 17 September 2022, when Dr Park noted that the implant was tender to percussion and there was slight discomfort on the buccal when massaged. The applicant consulted Dr Oh about the #12 implant just two days later. He undertook a surgical examination and cleaning and asked the applicant to return for a review. A month later, he provided a prescription for antibiotics and asked the patient to return for review in two months’ time. When that expired, Dr Oh identified periimplantitis that was not there before and devised a plan to improve the applicant’s oral hygiene care and to monitor for developments. After a further 2 ½ months, Dr Oh found that the wound was not healing, concluded that it was unlikely to improve with time, and referred the applicant to a periodontist.

81. Understanding that the human body takes various amounts of time to heal, with or without the assistance of antibiotics, and depending on the work that is done by the patient between visits to doctors and dentists, it is not surprising that the issues identified over that period may not have been resolved by 10 March 2023, despite the respondent’s best efforts. Against that, the applicant has again produced no evidence to lead me to the conclusion that the respondent’s services should have been provided in a way that would have achieved results within a shorter period of time. To that end, the applicant has failed to satisfy me on the balance of probabilities that the respondent failed to provide its services to the applicant within a reasonable time.

82. This part of the applicant’s claim therefore also fails.

Conclusion and orders

83. The applicant has not succeeded on any of the three claims that she has made against the respondent. Chiefly, that has been because the applicant has not satisfied the Tribunal to the civil standard, being the balance of probabilities, on the material that has been put before the Tribunal that there are grounds to make the orders sought by the applicant.

84. For these reasons, the applicant’s claim is dismissed. I am satisfied pursuant to s 79U of the FT Act that this order will be fair and equitable to all parties to the claim.

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Endnote

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 26 May 2025