Todd Owen Dean v Mark Phung

[2010] NSWSC 722

CITATION:	Todd Owen Dean v Mark Phung [2010] NSWSC 722
HEARING DATE(S):	29 June 2010
JUDGMENT DATE :	2 July 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Harrison AsJ
DECISION:	(1) The limitation period for acts or omissions caused by the defendant to the plaintiff be extended nunc pro tunc to 18 December 2008 pursuant to ss 60C and 60E of the Limitation Act 1969. (2) Expedition is granted. (3) Costs are reserved.
CATCHWORDS:	EXTENSION of limitation period - ss 60 C & E Limitation Act 1969 - dental treatment
LEGISLATION CITED:	Limitation Act 1969
CATEGORY:	Procedural and other rulings
CASES CITED:	ABS-Tech Services Pty Limited (in Liquidation) v Doeland & Anor [2003] NSWCA 167 Advanced Arbor Services Pty Limited v Phung [2009] NSWSC 1331 BHP Steel (AIS) Pty Limited v Giudice BC 9700625 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 139 ALR 1 Conray v Scotts Refrigerated Freightways Pty Ltd [2008] NSWCA 60 Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143 McLean v Sydney Water Corporation [2001] NSWCA 122 Salido v Nominal Defendant (1993) 32 NSWLR 524 Schering-Plough Pty Ltd v Page [2002] NSWCA 4 Sydney City Council v Zegarac (1998) 43 NSWLR 195
PARTIES:	Todd Owen Dean (Plaintiff) Mark Phung (Defendant)
FILE NUMBER(S):	SC 2008/289693
COUNSEL:	D Hooke SC with D Toomey (Plaintiff) D Nock SC
SOLICITORS:	Beilby Poulden Costello (Plaintiff) Guild Legal Limited (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

ASSOCIATE JUSTICE HARRISON

FRIDAY, 2 JULY 2010

2008/289693 TODD OWEN DEAN v MARK PHUNG

JUDGMENT (Extension of limitation period –
ss 60 C & E – dental treatment)

1 HER HONOUR: By notice of motion filed 26 February 2010, the plaintiff seeks an order that the limitation period in this action, to the extent that the action concerns damages caused by acts or omissions of the defendant up to any including 6 December 2002, be extended nunc pro tunc to 18 December 2008 pursuant to s 60C of the Limitation Act 1969 (“the Act”). The plaintiff is Todd Owen Dean (“Mr Dean”). The defendant is Mark Phung (“Dr Phung”).

2 Mr Dean relied on his affidavit affirmed 26 February 2010 and the affidavit of Donald Bedford Courtenay Poulden sworn 25 February 2010. Dr Phung relied on the affidavit of Fiona Dransfield affirmed 25 June 2010.

3 On 18 December 2008, the statement of claim was filed. The statement of claim alleges that Dr Phung, a dentist, provided negligent dental treatment and advice. By defence filed 18 March 2009, Dr Phung pleads that Mr Dean’s statement of claim, being commenced more than three years after his cause of action arose is statute barred pursuant to the operation of the Act. Dr Phung has admitted that the treatment and advice provided by him to Mr Dean was so inexcusably bad as to constitute a novus actus interveniens as to terminate the relationship between the injury sustained by Mr Dean on 19 December 2001 and the consequences of the treatment provided to Mr Dean by him - see Advanced Arbor Services Pty Limited v Phung [2009] NSWSC 1331, Johnson J, 2 December 2009. Liability in these proceedings has been admitted but Dr Phung opposes the limitation period being extended.

The Limitation Act

4 Section 18A of the Act sets a 3 year limitation period. Mr Dean relies on ss 60C and 60E of the Act to extend the limitation period. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in many cases, such as Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 139 ALR 1; BHP Steel (AIS) Pty Limited v Giudice BC 9700625; Sydney City Council v Zegarac (1998) 43 NSWLR 195; Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143; McLean v Sydney Water Corporation [2001] NSWCA 122; and Conray v Scotts Refrigerated Freightways Pty Ltd [2008] NSWCA 60 which provides a summary of prior decisions. The onus rests with the applicant. In addition to satisfying the relevant threshold requirements, it must be shown that it is just and reasonable to make an order.

5 Section 60C of the Act applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury.

6 Subsection 60(2) reads:

“If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, 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, not exceeding 5 years, as it determines.”

7 Section 60E reads:

“Matters to be considered by the Court


In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(a) the length of and reasons for the delay;

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;

(c) the time at which the injury became known to the plaintiff;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(h) the extent of the plaintiff’s injury or loss.”

8 In Conray v Scotts Refrigerated Freightways the New South Wales Court of Appeal stated (at [91]-[93] per McColl JA):

“91 …I accept that in focusing on the prejudice to a defendant arising from the delay by reason of the fact that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available, s 60E(1)(b) looks to the period between the expiration of the limitation period and the time of the extension application. However the governing requirement (s 60(1)) is to have regard to “all the circumstances of the case”. The attention drawn in s 60(1)(a) to the “length of and reasons for the delay” requires the court to examine the period which has elapsed since the cause of action accrued. This approach takes into account the rationales for limitation periods identified in Brisbane South which focus on the time which has elapsed since the cause of action accrued, rather than since the limitation period expired.

92 In considering a s 60C application, the court is required to take the s 60E factors into account to the extent that each is relevant to the circumstances of the case: Zegarac (at 197). Thus Mason P (at 199) held that “proof of prejudice, even ‘significant’ prejudice does not dictate the rejection of an application to extend time” and that while “[e]vidence of actual or significant prejudice may lead to refusal of the application, depending on the particular circumstances of the case … [i]n weighing prejudice, its impact upon a fair trial is the primary focus”. Priestley JA (at 221) was also of the view that the court “had power, in the proper exercise of its discretion in a particular case, to order an extension of time, notwithstanding either the presumptive or proved prejudice to the defendant which would be caused by that extension”.

93 In Schering-Plough Pty Ltd v Page (at [15]) Sheller JA (with whom Meagher JA agreed) after referring with approval to Mason P’s statement in Zegarac concerning the significance of proof prejudice, added that the Court should also be mindful of the matters referred to in Gleeson CJ’s judgment in Salido v Nominal Defendant (1993) 32 NSWLR 524 (at 532-3), observing (at [16]) that ss 60C and 60E spelt out expressly matters which to some extent, at least, were embraced by the Chief Justice’s remarks. He said:

“15…The discretion conferred upon the Court is to be exercised judicially in a manner that furthers the purposes of the statutory context, the immediate purpose, as with any limitation period, being to protect defendants against the injustice of stale claims and to promote forensic diligence. Bearing those matters in mind, the question is whether in the circumstances of each individual case the applicant for leave has demonstrated that it is just and reasonable that leave should be granted. The diligence or lack of diligence shown by a plaintiff or a plaintiff’s representatives in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff’s delay will also be material. The effect, if any, of the delay upon the defendant’s ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.”

9 The two main areas of dispute in this application are firstly, whether Mr Dean knew that he had a claim against Mr Phung in negligence in September 2006 and, secondly, if he did, is there a proper explanation of delay between 2006 and 2008. Counsel for Dr Phung submitted that this delay causes Dr Phung to suffer actual prejudice.

10 So far as the explanation for delay is concerned, in ASB-Tech Services Pty Limited (In Liquidation) v Doeland & Anor [2003] NSWCA 167, a case where the respondent to the application argued that the applicant’s explanation for the delay was inadequate, Hodgson JA (with whom Handley JA and Cripps AJA agreed) said, at [34]:

“… the correct approach is to regard the provision of an explanation as a necessary step in the application, and the nature of the explanation as being a matter which has to be taken into account in the ultimate determination of whether it is fair and just to grant the extension. The weaker the explanation, the greater the need to show that there would be little prejudice to a respondent.”

11 Originally these proceedings were ordered to be heard with Advance Arbor Services v Phung but it became necessary to cease doing so and have them heard separately at some point during the hearing.

12 In Advanced Arbor Services v Phung, Johnson J made the following factual findings at [11] to [16]:

“11 In November 2001, Mr Dean commenced employment as a labourer with the Plaintiff. His work involved tree lopping and tree trimming at various locations in Sydney.

12 In December 2001, Mr Dean signed an application to become part of the Australian Traineeship System. He signed a certificate and indenture of traineeship with the Plaintiff as his employer.

13 On 19 December 2001, Mr Dean had an accident at work. Whilst pushing branches into a chipper at a worksite at Bexley, a small log jumped out of the chipper and struck him on the chin. Mr Dean observed some blood and a tooth fragment in his mouth, together with a cut on his tongue. He rinsed his mouth with salt water and spat out a few chips of teeth and then returned to work for the rest of the day (T91-92).

14 Mr Dean continued to work up to Christmas 2001, experiencing no difficulty in performing tasks other than some pain in his mouth. During the January 2002 holiday period, Mr Dean experienced some pain in his teeth. He had no dental health issues prior to suffering the workplace injury on 19 December 2001.

15 In January 2002, Mr Dean commenced to complain about a sore mouth and teeth to Mr Beattie, a director of the Plaintiff. Mr Beattie made contact with the Defendant, a dentist whom Mr Beattie had attended previously, to arrange an appointment for Mr Dean in regards to his workplace injury. Mr Beattie told the Defendant that he had an employee who had injured his mouth at work and who was complaining of a sore mouth and sore teeth, and he requested the Defendant to treat him. The Defendant agreed and MrBeattie told him that it was a worker’s compensation matter and that Mr Dean would come and see him, but that Mr Dean would not have to pay any bills, with the bills to be paid by the Plaintiff’s insurance company (T104-105). Mr Beattie requested Wayne Fitzsummons, an employee of the Plaintiff, to make an appointment for Mr Dean to see the Defendant and this was done.

16 Mr Dean attended the Defendant’s dental surgery for the first time on 16 January 2002.”

13 For the purposes of this application, I have accepted Mr Dean’s evidence where it is not in dispute. Mr Dean’s evidence from 16 January 2002 onwards is as follows.

14 Between 16 January 2002 and 18 July 2003 Mr Dean attended Dr Phung's surgery for about 53 consultations. Most of these consultations took place in 2002.

15 Mr Dean accepted Dr Phung's advice as to the treatment he provided to him. Even though he thought Dr Phung was doing a lot of work on his teeth, Mr Dean did not have any reason not to trust his professional judgment. Mr Dean recalls that towards the end of his treatment he said to Dr Phung, "My teeth are still killing me." Dr Phung said: "It will take a while to settle down."

16 In about March 2003, Mr Dean received notification from the GIO (the workers compensation insurer of his employer) notifying him that they had arranged an appointment for him with Dr Andrew Howe, a dentist. On 14 April 2003, Mr Dean initially saw Dr Howe. He saw Dr Howe again on 12 August 2003. Dr Howe referred Mr Dean to Dr Neil Peppitt. In October 2003, Mr Dean saw Dr Peppitt who referred him to Dr Alan Nerwich, an endodontist. On 27 October 2003, Mr Dean saw Dr Nerwich for the first time.

17 Over the next 18 months or so Mr Dean continued to see Dr Nerwich for treatment. So far as Mr Dean was aware during the time Dr Nerwich was treating him the workers compensation insurer was paying his professional fees.

18 Mr Dean did not remember seeing a solicitor prior to 2006. After being shown his solicitor’s notes made by Mr Mark Field of Owen Hodge, Lawyers, at Hurstville, Mr Dean now has a very vague memory of a meeting with Mr Field in February 2004. Mr Dean consulted Mr Field to see whether he was receiving all his entitlements in relation to workers compensation. During 2004, Mr Dean felt as “crook as Rookwood”. Between May 2005 and March 2006, Mr Dean saw dental specialist on a couple of occasions.

19 In March 2006, Mr Dean was examined by Dr Challone, another dentist, at the request of the GIO. In May 2006, a significant event occurred. The GIO refused to pay for any further dental treatment and advised Mr Dean that they were ceasing to make weekly payments of compensation to him. Mr Dean remembers this well because his treatment and payments were to cease. When he was advised of this Mr Dean says he felt suicidal.

20 On 15 June 2006, Mr Dean had a further consultation with Mr Field. Not surprisingly he remembers that meeting quite well. Mr Dean’s concerns were that his further medical expenses were not going to be met and that his weekly payment of compensation was being cut off. Mr Dean told Mr Field about an ongoing problem with headaches and pain in his neck and shoulder. He suffers from migraines and has to sit in the dark until they pass. To this day he continues to suffer from all of these complaints. At the end of the meeting Mr Field said words to the effect, “I’ll have to look into this and get the relevant documents.”

21 On 17 August 2006, Mr Dean next spoke to Mr Field. He says his memory of that meeting is that he discussed with Mr Field how he could get the GIO to reinstate his payments. Mr Dean says that he has a clear memory of Mr Field using the term “interim payment” during that meeting when they were discussing what Mr Dean could do about money. He says that he does not remember having any discussion with Mr Field about being able to bring a court case against Dr Phung personally. Nor does Mr Dean remember being told anything about a limitation period by Mr Field at that meeting or at any other time. Mr Dean says that if he had been told he had a claim available to him against Dr Phung and that he had to bring the claim by a certain time he would have told Mr Field to pursue such a claim.

22 There are two file notes emanating from the solicitor’s office that make a reference to negligence.

23 On 7 August 2006, Angela Beare, a paralegal, emailed Mr Field. She wrote:

“… Have we been instructed by our client for med neg? Do you still want Neil Peppitt to do a report considering he has done a few for GIO and we have requested the medical reports from them.”

24 This file note is an internal one between a paralegal and solicitor. It would be most unlikely that Mr Dean had any knowledge of it.

25 Mr Field’s file note of the conference with Mr Dean on 17 August 2006 is:

“The client indicated Dr Mark Phung was negligent in the treatment he provided, which resulted in the bridges being fitted incorrectly. The end result is there will be a need for further crowns and bridges costing approximately $28,000.00. If Dr Peppitt and Dr Nerwich agree, the client may have a medical negligence claim against Dr Phung.
2. I suggest we prepare a brief to Jak Callaway. The observations can be copied from this memo. It seems to me that GIO will not pay for any treatment and we may be forced to seek compensation from Dr Phung, which may at the very least include the cost of treatment. The brief to Jak Callaway should be advise in regard to liability and prepare a Statement of Claim and Statement of Particulars.
3. Please note the limitation date for the medical negligence claim is June 2007.” (this is incorrect)

26 When Mr Dean was cross examined about this file note (T 15.20-45) the following exchange occurred.

Q. In that typewritten file note Mr Field says that you indicated that Dr Mark Phung was negligent in the treatment that he provided you. First of all, do you understand what negligent is?
A. Yes.

Q. Did you say that to Mr Field, that you thought Dr Phung was negligent in respect of his treatment?
A. I can’t remember.

Q. Would you dispute it if it’s recorded in Mr Field’s note?
A. No.

Q. Did you have any discussion with Mr Field about what was to be done in respect of the possibility of a claim? Did you have any discussion with him about briefing a barrister?
A. No.

Q. Did he give you any indication as to how or what he might do in respect of a possible medical negligence claim?
A. No.

Q. After that meeting with Mr Field, did you have any further meeting with Mr Field, that is, after 17 August?
A. No.

27 So far as the preparation of a brief to Jak Callaway is concerned, it never came to fruition.

28 Dr Phung contended that it was on 17 August 2006 that Mr Dean knew that he had a claim in negligence. Counsel for Mr Dean submitted that the references in the solicitor’s file to “negligent in the treatment” in August 2006 and limitation periods are consistent with the solicitor’s own notes.

29 It is my view that Mr Dean may have been told by the treating dental specialist that he thought Dr Phung was negligent. Mr Dean in turn mentioned this to Mr Field. In June 2006, Mr Dean was distraught when the payments and treatment was cut off. It is likely he would have taken further proceedings had he been properly informed of them. His consultation with the solicitor on 17 August 2006 was to see if he could do something to continue receiving both treatment and payments. I am satisfied it was not explained to Mr Dean that he could take court proceedings (other than workers compensation) for the recovery of damages due to the negligent dental treatment performed by Dr Phung.

30 On 15 September 2006, Mr Dean was present at the office of Mr Field when they had a telephone link-up with a person from the Workers Compensation Commission and a representative from the GIO. During that conversation Mr Dean remembers the man from the Workers Compensation Commission ordering the GIO to make an interim payment to him. After the telephone link-up there was no further discussion between Mr Field and Mr Dean except Mr Field saying words to the effect, “That’s good. We’ve got you an interim payment. My secretary will give you a call when we get the cheque and you can come in and pick it up.”

31 About a week later Mr Dean received a call from Mr Field’s secretary letting him know that they had received the cheque. He went to Mr Field’s office that day and collected it. Mr Dean did not see Mr Field but was handed the cheque by his secretary. Mr Dean has not seen Mr Field again since the day of the telephone link-up. He does recall ringing Mr Field a short time after he had collected the cheque because he wanted to know whether there was anything further that Mr Field could do about his situation. Mr Field said words to the effect, “I’m afraid there’s nothing further I can do for you.”

32 Mr Dean did not attempt to contact Mr Field again after that conversation. He made arrangements to move to the country. A week later he moved to Wadeville near Kyogle and set about getting on with his life.

33 In November 2008, Mr Dean was contacted by Dominic Maaitt, a solicitor from Turks Legal, who asked him attend his office for a meeting. In early November 2008, Mr Dean attended Mr Maaitt's office. At that conference Mr Maaitt provided Mr Dean with a bundle of papers in an envelope and provided him with the name of a solicitor, Mr Poulden, and suggested he contact him. Mr Dean contacted Mr Poulden as soon as he had finished his meeting with Mr Maaitt and had a conference with Mr Poulden on that same day.

34 When Mr Dean saw Mr Poulden for the first time, Mr Poulden said words to the following effect:

"It seems to me you have a good case against Dr Phung. I will have to gather all the relevant papers before I can give you any final advice but on what I have seen today you definitely appear to have a good case against him."

35 Mr Dean gave Mr Poulden instructions at that meeting to pursue a claim against Dr Phung for negligent treatment and advice.

36 Prior to this meeting with Mr Poulden, Mr Dean had not read any medical reports in relation to his initial injuries or the treatment provided to him by Dr Phung. While Mr Dean was aware that he had not achieved a good result from his treatment under Dr Phung, and that he was as crook as Rookwood, Mr Dean says that he did not realise, until his meeting with Mr Poulden, that it was open to him to bring a court case against Dr Phung.

37 On 18 December 2008, just over a month after Mr Dean first consulted Mr Poulden his statement of claim was filed.

38 The present situation is that Mr Dean has not received any further weekly payments since the interim payment in 2006. Nor has he has been able to have the further treatment he needs from Dr Peppitt. The remedial treatment he requires includes redoing all the crowns and bridges on 28 teeth and root canal therapy. Since 2006 Mr Dean has not been employed and is supporting himself with social security benefits. He says that he would have returned to see Mr Field if he had believed there was anything further that could have been be done for him from a legal point of view.

The plaintiff’s circumstances within the limitation period

39 Within the limitation period, the earliest of which must be regarded to have expired on 16 January 2005 and the last of which must be regarded to have expired on 18 July 2006, Mr Dean was in receipt of remedial treatment for the work performed by Dr Phung, the cost of which was being met by his employer’s workers compensation insurer until its declining liability to meet further expenses on 9 May 2006. The bulk of the treatment occurred in 2002.

Matters to be considered pursuant to s 60E(1)

Section 60E(1)(a) - The length and reasons for the delay

40 The length of the delay ranges from 3 years and 11 months to 2 years and 5 months. Mr Dean says that he has no recollection of receiving legal advice of the existence of any independent cause of action against Dr Phung until his meeting with Mr Poulden in November 2008. Mr Dean does not deny that the word “negligence” may have been used in his meeting with his former solicitor Mr Field in August 2006. I accept that Mr Dean may have been told that Dr Phung was negligent but I am satisfied that Mr Dean was not provided with any advice that he could take further legal proceedings for negligent advice and treatment against Dr Phung. I am also satisfied that he did not know anything of a potential brief to counsel, nor had he been advised of any limitation period by which he had to commence proceedings.

41 Counsel for Dr Phung submitted that there is no explanation for the delay between September 2006 and November 2008 and this causes actual prejudice to Dr Phung. The reason that Mr Dean did not take legal proceedings or seek legal advice during this period was because he thought that after the interim payment made in September 2006 there was nothing else that could be done. He moved to the country and tried to get on with his life. I shall refer to actual prejudice under the next heading s 60E(1)(b).

Section 60E(1)(b) - Prejudice to the defendant

42 Counsel for Dr Phung submitted that he suffers from actual prejudice between September 2006 and November 2008. I will also consider whether there is presumptive prejudice to the extent that he will not receive a fair trial. Dr Phung’s records are available. Evidence has already been marshalled in the Advance Arbor proceedings. Liability is not in issue. There are dental reports in existence from 2003 to 2008 as to the state of Mr Dean’s mouth and jaw by other specialists.

43 Ms Fiona Dransfield, the solicitor for the insurer of Dr Phung deposed that on 6 February 2008 she received a facsimile from Dr Phung attaching a letter from Turks Legal dated 21 January 2008 serving a statement of claim in Supreme Court proceedings 20006/2008 between Advanced Arbor Services Pty Limited v Dr Mark Phung. She did not depose that prior to receipt of the statement of claim she had received two letters dated 26 April 2005 and 30 May 2005 addressed to Dr Phung and passed on to her by the solicitor acting for the insurer of the employer, Turks Legal, requesting Dr Phung records in relation to Mr Dean.

44 At first Ms Dransfield did not recall receiving the latter letter but once she was shown her reply (dated 8 June 2005, Ex E) referring to her receipt of those two letters she agreed she had received both of them. The insurers’ letter dated 30 May 2005 drew Ms Dransfield’s attention to:

“Practice Note 104 “Professional Negligence List” of the Supreme Court, which states:
“9. It should be noted that indemnity costs may be awarded in respect of work necessitated by an unreasonable failure to provide access to or copies of medical or hospital records before or after commencement of proceedings.”
We accordingly call upon you to make available your records in accordance with the authority previously forwarded to you within twenty-eight days.
If you do not do so, we will be seeking an indemnity costs order against you in accordance with the Practice Note.”

45 Ms Dransfield gave evidence that her recollection was that it was a call for the file in relation to the workers compensation claim (T 25.25). This recollection is odd considering the letter specifically referred to the professional negligence list practice note. She admitted that in affirming her affidavit she was trying to create the impression that the first notice that she or Dr Phung had of a potential claim against him in respect of his treatment of Mr Dean was received in the Advance Arbor statement of claim in February 2008 (T 27.50; 28.1-3). Had Ms Dransfield addressed her mind to the contents of the letter dated 30 May 2005 she may well have thought that a claim for professional negligence against Dr Phung may be in the making. But apparently she did not.

46 So far as actual or presumed evidence is concerned, liability has been admitted. There are numerous earlier dental reports outlining what remedial work needs to be done. Nothing has been done.

47 In my view there is no actual prejudice. Nor is there presumptive prejudice such that Dr Phung will not receive a fair trial.

Section 60E(1)(c) - The time at which the injury became known to the plaintiff

48 Mr Dean gave evidence at the hearing of this application that he was reliant at all times upon Dr Phung to advise him as to the appropriate treatment for any dental injuries suffered by him in his work accident. I accept that he did rely upon Dr Phung’s advice. It is my view that in 2003 Mr Dean knew Dr Phung had carried out “shonky” work and he was aware of the need for remedial treatment by Drs Nerwich and Peppitt. In 2003, he was also aware that he was suffering from migraines, headaches, teeth pain, sore neck and shoulders.

Section 60E(1)(d) - The time at which the nature and extent of the injury became known to the plaintiff

49 Shortly after 27 October 2003, after his first consultation with Dr Nerwich on 27 October 2003, Mr Dean knew that he would require substantial remedial work in respect of the work done by Dr Phung. There was no suggestion in the evidence that Mr Dean was aware of the extent to which Dr Phung had over serviced him. Also, around this time, Mr Dean was aware that he was suffering from headaches, really sore teeth and jaw ache. Mr Dean knew he had lymphoma. He continues to suffer from these complaints.

Section 60E(1)(e) - The time at which the pl a intiff became aware of the connection between the injury and the defendant’s act or omission

50 As previously stated, Mr Dean was undoubtedly aware, by a time shortly after his first consultation with Dr Nerwich, that the work performed by Dr Phung was substandard or as Mr Dean describes it as “shonky”. As previously stated, there is no evidence to suggest Mr Dean was then aware of the extent to which he had been over serviced by Dr Phung. Even as at 9 May 2006, when the workers compensation insurer denied liability to make further payments, the reason given for doing so was that he had “recovered [from the work related injury to your mouth] … and you are fit for your pre-injury duties.” As previously stated, Mr Dean may have known that Dr Phung was “negligent” but he did not know that proceedings other than workers compensation could be taken. It follows that I accept that Mr Field did not advise him that he should commence legal proceedings for negligent advice and treatment against Dr Phung.

S 60E(1)(f) - Any conduct of the defendant which Induced the plaintiff to delay bringing the action

51 Mr Dean submitted that Dr Phung was dishonest in the extreme and that he has breached his position of trust in an appalling way. While I would not say that I entirely agree with the above submission, I do agree that in the face of complaints from Mr Dean of ongoing problems Dr Phung led him to believe it would “settle down”. They did not. Dr Phung was found by Johnson J to have actively misled the workers compensation insurer in his representations to it that he was competent and that the work he was performing was reasonable and necessary for the injuries suffered by the plaintiff on 19 December 2001.

Section 60E(1)(g) - The steps taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received

52 Mr Dean consulted his former solicitors in 2004 and again in May, August and September 2006 in relation to payments and entitlements to workers compensation payments. He did not consult a solicitor again until November 2008 when he was advised to do so by the solicitor acting for the employer’s workers compensation insurer. He consulted Mr Poulden, his current solicitor, on the same day and these proceedings were commenced just over one month later.

53 As previously stated, there are dental reports available (Ex A) since 2006. Mr Dean has been to the same medical practice from time to time since he moved to Wayville. This practice is still operating. These records would most likely be available.

Section 60E(1)(h) - The extent of the plaintiff’s injury or loss

54 Mr Dean’s losses are substantial. The over servicing and bad standard of the dental work performed is set out in the medical evidence. The treatment he went through back in 2002 would have been painful. The treatment included root canal therapy, crowns and bridges to every tooth in his mouth and over 53 consultations with Dr Phung.

55 Since 2002, Mr Dean had remained off work with debilitating headaches, sore jaw and teeth. Not surprisingly he now suffers from depression. The worst part of Mr Dean’s plight is that no remedial work has been carried out in the last four years or so. Eight years on Mr Dean is still in pain. He has to face up to having all this painful dental work redone. To some, this situation would be akin to entering into the Orwellian Room 101.

Conclusion

56 It is my view that Dr Phung has not suffered actual prejudice. Nor will he suffer significant prejudice such that he will not receive a fair trial. I have taken the matters referred to in s 60E(1)(a) to (h) of the Act into account. I have no hesitation in deciding that Mr Dean has discharged his onus and I am satisfied that it is just and reasonable to extend the limitation period under ss 60C and 60E against Dr Phung.

57 Given the plight of Mr Dean, I grant expedition.

58 Costs are reserved.

The Court orders

(1) The limitation period for acts or omissions caused by the defendant to the plaintiff be extended nunc pro tunc to 18 December 2008 pursuant to s 60C and 60E of the Limitation Act 1969.

(2) Expedition is granted.

(3) Costs are reserved.
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