Williamson v Cavallaro - [2001] WADC 263

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WILLIAMSON -v- CAVALLARO [2001] WADC 263

CORAM: DEANE DCJ

HEARD: 12 OCTOBER, 7 NOVEMBER 2001

DELIVERED : 21 NOVEMBER 2001

FILE NO/S: CIV 2557 of 2000

BETWEEN: WILLIAM GRAHAM WILLIAMSON
Plaintiff
AND
MARIO CAVALLARO
Defendant

Catchwords:

Professional negligence - Dental practitioner - Default judgment entered against defendant - Failure to examine or adequately examine plaintiff's teeth so as to properly diagnose his condition - Extensive dental work required to rectify plaintiff's dental problems - Damages for pain and suffering and loss of amenities - Damages for future dental treatment - Award for special damages

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff: Mr S Melville
Defendant: No appearance

Solicitors:

Plaintiff: Gibson & Gibson
Defendant: No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Druce v Bartram, unreported; DCt of SA; Judgment No D3318; 6 October 1995
Tieleman v Cohen, unreported; DCt of WA; Library No D970141; 7 May 1997

DEANE DCJ: On 3 October 2000 the plaintiff filed a writ of summons in this Court for damages for personal injuries caused to him as a result of the negligence and/or breach of statutory and/or breach of contract of/by the defendant in the provision of dental treatment by the defendant to the plaintiff between 1975 and 24 November 1995.
On 6 November 2000 the defendant filed a memorandum of appearance.
The defendant is a qualified dental surgeon and at the relevant time carried on practice in Morley. During the period 1975 to approximately 8 July 1996 the plaintiff who had engaged the defendant as his dental surgeon regularly attended the defendant for dental care and treatment, at approximately six monthly intervals. On these occasions the plaintiff’s teeth and gums were examined by the defendant and he also advised the plaintiff in relation to his dental and oral hygiene. In addition the defendant provided dental care and treatment to the plaintiff and among other things performed investigations, including radiological investigations upon the plaintiff. These services were rendered pursuant to a contract, which was partly oral and partly implied, made in 1975 between the plaintiff and the defendant. Essentially the defendant provided the plaintiff with services and treatment as a dental surgeon in return for payment.
It was an implied term of that contract between the parties that the defendant would exercise care, skill and competence in the provision of dental care and treatment to the plaintiff and would conduct adequate investigations and examinations of the plaintiff’s teeth and gums. These would be carried out so as to enable the defendant to properly diagnose, advise and provide treatment to the plaintiff in addition to advice with respect to the plaintiff’s dental condition and required dental treatment.
For reasons that will be touched upon in the course of these reasons, the defendant was negligent in failing to examine or adequately examine the plaintiff’s teeth so as to properly diagnose his condition. Particulars of negligence are set out in par 10(a)‑(g) of the statement of claim and for the purposes of these proceedings it is not necessary to repeat them. Similarly, and in the alternative, par 11(a)‑(g) sets out the particulars of breach of contract alleged by the plaintiff against the defendant. Again in the view of the manner in which this matter has progressed it is unnecessary to detail those particulars in the course of these reasons.
After having filed a memorandum of appearance nothing further has been heard from either the defendant or his legal representatives. As a result on 16 February 2001 the plaintiff obtained judgment in default of defence against the defendant. The purpose of these proceedings therefore is to assess damages for injuries, loss and damage suffered by the plaintiff as a consequence of the negligence and breach of contract of the defendant. The plaintiff claims compensation for pain and suffering and loss of enjoyment of life as well as loss of amenity (if any) that was sustained and may be likely to be sustained in the future as a consequence of the dental treatment provided to the plaintiff by the defendant. Further the plaintiff claims the cost of dental work that was required to remedy the damage to his teeth as a result of the defendant’s action and/or inaction. Interest on past losses and expenses pursuant to s 32 of the Supreme Court Act 1935 as amended is also claimed from the date the plaintiff incurred loss and expenditure.

Evidence of the plaintiff

The plaintiff is a 52 year old public servant. His first visit to the dentist which occurred when the plaintiff was about 10 years old, was according to the plaintiff’s evidence a very stressful event. As a result since that time the plaintiff has felt somewhat hesitant in seeking dental treatment, but mindful of the necessity for maintaining dental health and hygiene, he has adopted a conscientious approach to maintaining his health in this regard.
The plaintiff first consulted the defendant for dental treatment and advice in 1975 and continued to attend upon him thereafter at regular six monthly intervals for what might colloquially be termed “check‑ups”. On those occasions the treatment the defendant administered to the plaintiff generally consisted of oral examinations of the plaintiff’s mouth, teeth and gums. On occasion x‑rays or radiological treatment was also administered by the defendant to the plaintiff. I accept the plaintiff’s evidence that when he attended the defendant he enquired about the state of health of his teeth and gums and was assured by the defendant that all was well and the plaintiff need take no other precautions apart from regularly attending the defendant for dental reviews.
The plaintiff last attended the defendant for a regular six monthly check‑up in November 1995. On a weekend in early July 1996, about the time of the plaintiff's daughter’s 21^st birthday party, the plaintiff unfortunately broke a tooth whilst eating some peanuts. The following Monday the plaintiff unsuccessfully attempted to contact the defendant. As the plaintiff’s situation was somewhat urgent and he was also distressed about his broken tooth he decided to consult Dr Hurwitz, a dental surgeon who had a practice not far from where the plaintiff lived.
On 8 July 1996 Dr Hurwitz conducted an oral examination of the plaintiff’s mouth, teeth and gums and ascertained that the reason the plaintiff’s tooth had broken was that it was badly decayed under a filling which had been placed into the tooth by the defendant. Following a more detailed oral examination and radiological investigation the plaintiff was shocked and considerably distressed when he was advised by Dr Hurwitz that he would require extensive dental work to rectify the state of his teeth and inflamed gums. To this end Dr Hurwitz prepared a treatment plan, Exhibit P2 in these proceedings.
On advice from the Dental Association of Western Australia the plaintiff sought an independent assessment of the treatment plan proposed by Dr Hurwitz and this was conducted by Mr Coutts. He fully endorsed the proposed treatment plan and confirmed the urgency of the work that was required to be carried out on the plaintiff’s teeth and gums. In addition the prices quoted by Dr Hurwitz for the various procedures required to be undertaken were considered to be both appropriate and reasonable.
As a result from about July or August 1996 the plaintiff embarked upon a fairly extensive course of dental treatment to rectify a range of dental problems. The plaintiff’s initial concern and distress were heightened as he appreciated that the dental treatment he required was not only extensive in nature but would take in the vicinity of four to five years to complete. In his evidence the plaintiff gave a general description as to the work which had to be done including root canal treatments and the fitting of crowns to various teeth. On at least two occasions because of the depth of decay in the tooth the plaintiff had to return to have root canal treatment done through the crowns themselves. In order to minimise disruption to his working day the plaintiff would usually arrange to attend upon Dr Hurwitz for treatment about 4.00 pm or 5.00 pm on the way home from work. This meant on occasions that he had to leave work earlier than would ordinarily be the case and the plaintiff then had to make up that lost time by working at home in the evenings at times.
The plaintiff impressed me as a forthright and balanced witness. He gave his evidence in a matter of fact and straightforward manner without in any sense attempting to exaggerate the difficulties he encountered as a result of the defendant’s negligence. I accept that on occasions the treatment which it was necessary for the plaintiff to undergo to rectify his dental problems was very uncomfortable and sometimes painful, for example when he underwent root canal treatment. It was necessary at times for the plaintiff to take pain killers to alleviate the immediate pain resulting from dental treatment. I accept that the plaintiff has suffered a degree of stress associated with the situation in which he found himself and the necessity for extensive dental treatment. This in turn has caused him on occasion to become frustrated which has had a negative impact on his family life. In addition I accept that at times the plaintiff has been distracted as a result his situation and so has not been able to operate as efficiently in his working environment as he would have wished. Further, on occasion, usually immediately following a very uncomfortable or painful dental procedure, the plaintiff has had difficulty sleeping. Fortunately these problems now seem to have resolved, as the plaintiff underwent the final treatment rectifying his dental problems in January 2001.
Nonetheless the plaintiff, whom I have previously described as being conscientious in maintaining dental health and hygiene, intends to continue to consult Dr Hurwitz regularly pursuant to a dental health maintenance programme. The plaintiff understands that he may require further work to rectify his dental problems but was unclear as to precisely what they would be as it has not been identified with great precision to him at this point in time.
The plaintiff has not been adversely affected in his ability to eat nor is he restricted in the type of foods which he is able to consume.
During the course of the dental treatment administered by Dr Hurwitz the plaintiff received accounts for the work done and made claims for reimbursement relevant to that work on the Hospital Benefit Fund (“HBF”) of which he is a member. Exhibit P1 is a schedule of dental expenses claimed with the relevant accounts from Dr Hurwitz attached. That schedule in some detail sets out the date of treatment, the cost of such treatment, the amount recovered from HBF and finally the amount of the gap being the amount in each instance which the plaintiff himself had to pay.
It should be noted that the plaintiff made a formal complaint to the Dental Board of Western Australia regarding the treatment carried out upon him by the defendant, which was the subject of separate proceedings and therefore any findings made by the Board are in my view not relevant for the purposes of this matter.

Evidence of Dr Hurwitz

Dr Hurwitz has been qualified and practising as a dentist for 28 years, the past 14 of which have been in Western Australia. When he first saw the plaintiff in July 1996 he fixed the offending tooth and made an appointment to carry out a more thorough and detailed examination of the plaintiff's mouth, teeth and gums. Subsequently he prepared a treatment plan for the plaintiff, Exhibit P2, which he then discussed with the plaintiff. He noted that faulty restorations required replacing in order that they could be cleaned to avoid further destruction of the tooth substance and the periodontium. Radiological investigations carried out by him indicated that there were some areas in the plaintiff’s mouth where there had been some permanent damage as a result of bacteria being caught between the teeth as a result of faulty tooth restorations. His view was the restorations were faulty because they had not been contoured properly in the first instance. X‑rays taken of the plaintiff’s teeth demonstrated decay occurring in the plaintiff’s mouth, faulty restorations and some minor bone loss. As the tooth is encased in bone when the gum around the tooth becomes infected, that infection extends to the bone resulting in both gum and bone loss. Fortunately the plaintiff’s bone loss had not extended to the point where any of his teeth were mobile or loose.
The x‑rays also revealed a number of old fillings with underlying decay. That necessitated the old filling being removed in order to extract the decay prior to re‑filling the tooth. This procedure had to be carried out in respect of a significant number of the plaintiff’s teeth. The procedure has to be carried out with a degree of precision because if the nerve of the tooth is exposed that permits bacteria to enter the nerve leading to infection which then must be addressed by more complicated treatment such as root canal treatment. This can lead to compromising the tooth because it involves removal of the nerve of the tooth so that all the infected tissue can be excised. In addition the procedure can render the teeth more brittle and it can lead to destruction of even more of the particular tooth in order to gain access to the nerve canal system. Some of the plaintiff’s teeth that Dr Hurwitz treated he did no more than replace fillings. With reference to Exhibit P3 Dr Hurwitz gave evidence indicating the list of treatment and costs incurred following his initial examination of the plaintiff. In the course of that part of his evidence Dr Hurwitz explained that whilst root canal treatment of the nature which the plaintiff underwent at times did not cause damage to the surrounding tissue such as the gum, it is nonetheless a very uncomfortable procedure. This can be especially so if the nerve of the tooth is infected or inflamed, as it is often difficult to fully anaesthetise the area. The pain experienced varies from individual to individual and the procedure is usually followed by a period of numbness to the area in question. For this reason the patient is usually advised to take analgesics for a short time following the procedure.
In relation to tooth number 16 the plaintiff received a crown in December 1997 followed by root canal treatment and filling of that same tooth the following year. It was an extremely large and deep filling so that when the time came to restore the tooth it needed to be crowned in order to avoid further breakage of the tooth. Subsequently the plaintiff developed symptoms as a result of infection in the tooth that is why root canal treatment was subsequently carried out.
In Dr Hurwitz’ opinion where the plaintiff had very large fillings and deep decay there is the potential for infection and re‑infection of the nerves. Where fillings are wide and extensive the remaining structure of the infected tooth is fragile and brittle leading to the possibility of further breakdown of the tooth which may require crowning to avoid further damage. Dr Hurwitz gave evidence that it is fairly likely that three of the plaintiff’s teeth will need crowning in the future because of the extent of the fillings combined with normal wear and tear. Those teeth are also vulnerable to the possibility of infection. It was Dr Hurwitz’ considered opinion that these three teeth should be crowned before they actually break because this makes the treatment simpler and less invasive. The estimate cost per crown is $850.
Although it is a difficult question to answer, in the circumstances Dr Hurwitz was of the view that the decay he noted in the plaintiff’s teeth had been present for quite some time and it was more probable than not where there were extensive areas of decay or larger areas of decay that the decay was old or long standing rather than new decay.
As Dr Hurwitz pointed out in his evidence most people are regrettably subject to decay within their teeth. Ideally when a dentist sees a patient with a considerable amount of dental work present in their mouth regular x‑rays should be taken. X‑rays and even oral examination however are not infallible and at times one can miss things. In the end however he believed that in adults generally it is sufficient to visit one’s dentist for a check‑up at six monthly intervals. Generally speaking this is frequent enough to enable prophylactic measures to be taken to avoid dental problems developing.

Evidence of Mr Groves

Mr Groves, an inquiry agent with HBF gave some brief evidence concerning regulations made by HBF under its constitution regarding the manner of payment of benefits to contributors and members of the fund. Regulation 8 relates to the payment of benefits in circumstances where an individual has a claim for compensation and/or damages. Further, Regulation 9.5 provides that the regulations themselves constitute a contract between contributors or members of the fund and HBF itself. The essential point of Mr Groves evidence was that where a member of HBF receives dental treatment and subsequently makes a claim and receives reimbursement of a portion of the cost of that treatment, then in the event that the person ultimately receives an award of damages, including a component for the whole of the cost of the treatment, HBF reclaims from the member a portion of moneys reimbursed by the fund in the first instance.

Assessment of damages

For the reasons outlined above I have reached the conclusion that the plaintiff has a claim for damages for pain and suffering and loss of enjoyment of life as well as loss of amenities in the past. In relation to the award of damages for that claim in my view there needs to be a modest discount to reflect the fact that in any event the plaintiff would have had to continue to undergo dental treatment over the years to maintain adequate oral health, but that treatment in the end would have in all probability been of a far less traumatic, invasive and extensive nature than has been the case as a result of the defendant’s failure to adequately diagnose and properly treat the plaintiff’s dental problems.
On the evidence I find that the plaintiff’s major dental problems and difficulties have now been treated and have largely stabilised. With the exception of the necessity for three remaining teeth to be crowned in the future there is no compelling evidence that the plaintiff will continue to suffer stress, emotional trauma and embarrassment.
In all of the circumstances I assess the plaintiff’s general damages in the sum of $15,000 but I discount this amount by 10 per cent to reflect the contingency that the plaintiff would have had to have undergone some treatment in any event during the period in question. The sum of this award then becomes $13,500. In addition, in my view, the plaintiff should be awarded the sum of $2,550 to cover the cost of crowning three teeth at $850 per crown. In my view this treatment would not have been necessary had it not been for the negligence of the defendant.
Finally, in relation to the cost of dental work required to remedy the damage to the plaintiff’s teeth as a consequence of the combination of the defendant’s action and inaction, I award the plaintiff the sum of $5,595.30 as per the calculations contained in Exhibit P1. Interest on this amount for the period of approximately one year between the filing of the writ of summons and date of this judgment at 6 per cent per annum is $360 (rounded up to the nearest dollar). This component of the award is therefore $6,355 (rounded down to the nearest dollar).

The total sum of damages assessed is $22,405.