Dabron v Houssaini[2000] QDC 244

DISTRICT COURT OF QUEENSLAND

1. [1]
   By proceedings commenced in this court on 17 March 2000, the plaintiff claims against the first defendant damages for personal injuries, loss and damage.

2. [2]
   The plaintiff alleges that she suffered personal injuries, loss and damage by reason of the negligence of the first defendant. The plaintiff was a patient of the first defendant. The first defendant carried on practise as a dentist in New Farm.

3. [3]
   According to the plaintiff, in March and April 1996, the plaintiff consulted the first defendant to determine what could be done cosmetically to improve the appearance with regard to her upper teeth between and including the canines. The first defendant had treated her previously for routine dental check ups, and the plaintiff relied upon his assessment. It was during one of these routine consultations with the first defendant that the plaintiff inquired about having work carried out to improve the general appearance of her teeth.

4. [4]
   Her teeth at that stage were straight and in good condition, however:

1. (a)
   her teeth had a yellow tinge due to childhood antibiotics and she wanted whiter teeth;

2. (b)
   her two canines were larger than the other teeth and she wanted them to be more consistent with the size of the other teeth.

5. [5]
   The plaintiff was informed by the first defendant that he could fit crowns to both the top and bottom rows of teeth and he informed her that it would improve the cosmetic appearance of her teeth. When the plaintiff initially saw the first defendant to consult with him in or about March and April 1996, she discussed with him the result of the procedure he proposed (that is, the crown work) to carry out. The first defendant’s response to her queries was “Don’t worry, they will be perfect”. The plaintiff instructed the first defendant to carry out the work which was carried out over about four visits. The procedure involved in the fitting of crowns, involved the reduction of the existing teeth to what is known as a post and the fitting of crowns over the top. However, after that work was carried out the plaintiff progressively became more embarrassed with her teeth, and in November 1999 she resolved to consult and obtain an opinion on what could be done (if anything) to alter the appearance of her teeth.

6. [6]
   Further, according to the plaintiff, after about three years she found that she became increasingly depressed over the appearance of the teeth. This prompted her to contact the Australian Dentists’ Association and to eventually consult with a Doctor Thompson for advice. She was referred to Dr. Thompson whom she saw on 21 September 1999.

7. [7]
   As a result of that consultation with Dr. Thompson the plaintiff formed the opinion that the work which had been done was improperly performed, as in his view:

1. (a)
   the teeth had been ground down excessively at the rear which caused the protrusion of the teeth;  and

2. (b)
   the crowns were ill-fitted and sat too far forward and thereby protruded; and

3. (c)
   the crown work was unnecessary in the first instance to correct the concerns raised;  and

4. (d)
   the work was not done with due skill and care as the margins of the crowns were so far below the gum line that he would have thought the crowns were about fifteen (15) years old.  In his opinion, the work was “unacceptable”;

5. (e)
   the crowning of the teeth other than the canines was unnecessary and that there was available another alternative, namely tooth bonding which would have been a more appropriate and less expensive course.

8. [8]
   With respect to Dr. Thompson’s view expressed to the plaintiff which I have set out in sub-paragraph (e) in the preceding paragraph, the plaintiff said she was never told of this procedure, never given any other alternatives, nor were any other procedures discussed or mentioned. Further, she was not made aware of the possibility of tooth bonding being available as well as being appropriate to address her concerns until she spoke with Dr. Thompson in September 1999.

9. [9]
   The plaintiff states prior to this time she had never had any belief or reason to doubt that the work which had been carried out had been carried out properly and with due skill and care. She said she knew of no one who had the same extent of work carried out on their teeth. Further, she had nothing with which to compare the work.

10. [10]
    Further, after the work had been carried out, she felt that it was in fact her fault that she was unhappy with the work which had been carried out and that she should have asked more questions of the first defendant. She thought that she would have to live with the result, and she felt maybe she had not asked enough questions regarding the eventual cosmetic appearance and how her teeth would look after the work had been carried out.

11. [11]
    Further, she spoke to the first defendant some two to three months after the procedure to discuss with him any further work which could be done to reduce the bulkiness of her teeth. He advised her that the porcelain could be shaved down, however this would result in the metal showing through. He also advised her that if she wanted to have the crowns fitted again, then she would have to pay for the work to be redone. The plaintiff states the initial cost of having the crowns fitted was $5,950. Due to the expenses involved after deciding that she wanted to change the appearance of the teeth, she resolved to save and once she had the money together she would have the teeth redone.

12. [12]
    The first defendant by his defence claims that the cause of action pleaded by the plaintiff in her proceedings arose more than three years prior to the issue of the Statement of Claim and is barred by s. 11 of the Limitations Of Actions Act 1974 (the Act).

13. [13]
    Hence the plaintiff brings this application for an order that the period of limitation for the commencement of the plaintiff’s proceedings be extended to 18 March 2000.

14. [14]
    When the application came on for hearing before me, the plaintiff was cross-examined by counsel for the first defendant.

15. [15]
    During cross-examination, the plaintiff said she was born in 1966 and has been an accountant by profession since her early 20’s. Having had many dealings with professional people, she was aware in 1996 those people often make mistakes when carrying out their duties. She appreciated that if one were dissatisfied with the service from a professional person including dentists, orthodontists and other people in those fields, one could seek a second opinion.

16. [16]
    The plaintiff also said after she had the treatment done by the first defendant, she was not really happy and asked what could he do. The first defendant recommended a couple of courses of action. One was having the teeth completely redone to alter the cosmetic appearance to which the plaintiff replied she did not really have the money for that. The second option was to shave the teeth down, but which the first defendant did not recommend. The plaintiff therefore resolved that as she did not have the money for the first option, and the result was what she paid for, she would just live with it. The plaintiff also said that she did not want to go back to the first defendant.

17. [17]
    According to the plaintiff, the first defendant had done what she required and the two problems she had identified were corrected. However, she was not happy with the cosmetic appearance and the first defendant knew that and made his recommendations. In the course of making his recommendations, the plaintiff said she discussed with him the “the margins” and the “granus”. The plaintiff said that the first defendant said that nothing could be done about the “granus” but with “the margins” the plaintiff needed to massage the gums by brushing the gum line and that would gradually go away. She trusted what she had been told regarding the brushing of the gums. The plaintiff said that she was not 100% happy with the work, and it was not what she expected. That was how she felt at that time of this conversation which was a couple of months after the work was done in July 1996. The plaintiff said that the first defendant gave her these options on the two occasions that she spoke to him about the work after the work was done.

18. [18]
    The plaintiff said that after the work was done she was disappointed. However, she had nothing to compare the work to and she thought what she had was what she paid for and she thought she would see if she could get used to it.

19. [19]
    The plaintiff said that later in 1999 when she had sold her house, she thought then with the money from the sale of the house she would have her teeth redone.

20. [20]
    The plaintiff said the first defendant had told her that the work that he would perform would give her a perfect result. Nevertheless, as far as she was concerned, the first defendant had done what he was supposed to have done. The plaintiff said she spoke to friends about the work that the first defendant had done. However, the plaintiff said that they were not medical or dental practitioners, and she did not know anyone who had that extent of dental work done. She said even her family thought her teeth looked alright after the work was done by the first defendant.

21. [21]
    It was suggested to the plaintiff during her cross-examination that her dissatisfaction with the outcome did not change between June of 1996 and September of 1999. Her response was that it was one of those things that she thought she would have to live with. Further, she just did not have the money to have it done again.

22. [22]
    The plaintiff said it was when she saw Dr. Thompson that it was Dr. Thompson who said that he did not think the work had been done properly. Further, she said that at no time did any dentist she saw during the three year period mention to her or even inferred that the work was not satisfactory, or not what it should have been. She said she had no reason to ask the dentist she had been going to what he thought about whether the work had been done satisfactorily. Further, in cross-examination it was suggested to the plaintiff that she had seen in magazines photographs of people who had had some cosmetic surgery performed. She acknowledged that the result for her was different than represented in those magazines. However, she said she was not aware of the reasons why the result was different to what was in the magazines. The plaintiff acknowledged that the outcome was not what she expected, and she was not 100% happy with the result. Further, the work was not perfect.

23. [23]
    The plaintiff did acknowledge during her cross-examination that she had decided that after her conversation with the first defendant in 1996 about the options that it was in the back of her mind that one day, if she had the money, she would have the teeth done again. The plaintiff said with respect to obtaining the money to have the teeth done again:

“It was in the back of my mind that, yes, one day when I have the money I’ll have the teeth done again because I wasn’t 100% happy and I guess these things niggle away at you, and teeth being such a prominent part of your personality and features. And being, you know, the sort of person I am it wasn’t perfect and I guess it weighs on your mind and progressively the problem seems much bigger than what maybe people – other people would think it was.  And it annoyed me or embarrassed me so much that instead of being a low priority it became a high priority for me so that when I sold my house I thought well it’s certainly something I’ll have done.”

24. [24]
    To the suggestion that it was open to the plaintiff to seek a second opinion, the plaintiff said that she was not so unhappy, nor did she think the work was inadequate, that she thought she would seek a second opinion. She believed the two issues that concerned her, namely the yellowness and the canines, had been taken care of by the work done by the first defendant. As to the suggestion that she was no more unhappy with the outcome by September 1999 than she was in 1996, the plaintiff said:

“It had – as I said earlier it weighs upon you and something you think is a small issue becomes a bigger issue and all of a sudden it was a high priority because – I don’t know if – I don’t know how I can explain it to you but you think, you know, it’s okay and then progressively it becomes such an issue that you – you obsess about it and I was obsessing about the look of my teeth so much so that it became a high priority for me and I thought, “I’m so unhappy that I want to have it done again”.

It was also suggested to the plaintiff that the only reason why between the middle of 1996 and September 1999 she did not get a second opinion about the work that was done was because it just did not concern her enough to have it done.  The plaintiff accepted that was right, however added that she just did not have the money, namely another $6,000 or $7,000 to have it done again.  The suggestion again was made to the plaintiff that between 1996 and 1999 she had not sought advice from any alternative means of trying to recover or achieve a satisfactory outcome with respect to the work.  She responded that friends and family were blasé, giving her encouragement that the work looked good, and no one suggested the work looked, in her words, “really disgusting, I think the work is bad.  You should go and get someone to have a look at that”.  She added that the work was not obviously defective at all and that the first defendant regarding the greyness and the margins said to her that by brushing her gum line she could encourage the gums over the teeth. 

25. [25]
    Dr. Thompson consulted with the plaintiff on 21 September 1999. He is a prosthodontist by occupation. In one of Dr. Thompson’s reports (dated 29 February 2000), he states his examination showed that the plaintiff had porcelain-metal crowns on seven teeth. The colour of the porcelain was not very aesthetic or suitable for her general appearance and complexion. The shape of the crowns was too square. The crowns in profile appeared protrusive and from an incisor view were thickened. The appearance was that the anterior teeth were protrusive because the labial surfaces were not in the arch form of the rest of the teeth. The labial cervical margins were detectable. There was some gingival recession on the labial of the left lateral incisor and left canine teeth, with associated dentine sensitivity.

26. [26]
    Dr. Mandikos is also a prosthodontist. He first saw the plaintiff on 12 January 2000 and since then has consulted with the plaintiff on several other occasions. He too has provided a report which is in evidence before me on this application. In his report, he states he made the following observations about the crowns –

“ – open margins that were readily probed were a generalised feature

• -poor characterisation in the porcelain of the crowns leading to a flat, opaque, lifeless appearance
• -poor morphology of the individual crowns; tooth shapes generally amorphous and bulbous in appearance unlike natural teeth; gingival embrasures were mostly too closed leading to crowding of the papilla (gum between individual teeth); irregular incisal edges/not faceted – unnatural; lack of surface texture on the crowns; angulation and inclination of individual crowns not constant with natural teeth.
• -areas of gingival recession due to inadequate soft tissue (gum) management;
• -poor shade match to surrounding natural teeth
• -crowns too short in length by 1-1.5 mm – inadequate anterior display.”

27. [27]
    Dr. Mandikos has also exhibited to his affidavit photographs of the plaintiff’s teeth taken before the work was done by the first defendant. He states:

“It is my opinion that the PFM crowns placed on Ms. Dabron’s maxillary anterior teeth were technically deficient due to their marginal adaptation, and were poorly designed from an aesthetic perspective, as a result of unnatural uniform shading, poor morphology, and inadequate soft tissue management.”

Dr. Mandikos then sets out in his report the recommended treatment, the progress of treatment and future dental treatment requirements involving cost to the plaintiff.  His conclusion is:

“From the information gathered at several examination and consultation appointments, it is my opinion that Ms. Dabron’s initial presenting complaint would have been best managed by a combination of Enameloplasty (with or without bonding) and Vital Bleaching.  If such treatment would have been insufficient to provide the changes in tooth shape and colour requested, then Laminate Veneers would have been the most appropriate form of treatment.  I saw no evidence to support the use of Full Veneer Crowns in this case.

The PFM crowns placed for Ms. Dabron were deficient both technically and aesthetically.  It is my opinion that little planning went into the original provision of treatment for such a highly demanding aesthetic case.” 

28. [28]
    Sections 30 and 31 of the Act provide as follows:

29. [29]
    On the hearing of this application I was referred to Dick v. University of Queensland (1999) QCA 474.  In that case, Thomas JA at p. 8-9 referred to the decision of the High Court in Do Carmo v. Ford Excavations Pty Ltd (1984) 154 CLR 234. He observed the legislation in question in that case was in pari materai with the Queensland Act.  He quoted from the judgment of Dawson J in Do Carmo and interpolated the relevant Queensland sections and said:

“The form of the legislation requires, I think, a step-by-step approach.  The first step is to inquire whether the facts of which the appellant was unaware were material facts: s. 57(1)(b) [Qld s 30(1)(a)].  If they were, the next step is to ascertain whether they were of a decisive character: s. 57(1)(c) [Qld s 30(1)(b)].  If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date: s. 58(2) [Qld s 30(1)(c)]”

30. [30]
    On the hearing of this application counsel for the first defendant conceded that the alleged negligence which might be said to be established by the subsequently obtained dental advice were material facts. He submitted the issue in this application was whether these facts were within the plaintiff’s means of knowledge. I understand this is a concession that the evidence in this application could satisfy me to the requisite onus that the facts the plaintiff was unaware of were material facts and that these facts were of a decisive character. Further, that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation. Therefore leaving for consideration the third step referred to in the judgment of Dawson J in Do Carmo namely, whether these facts were within the means of knowledge of the plaintiff before the commencement of the year last preceding the expiration of the period of limitation for the action.

31. [31]
    That is, the first defendant submitted as far as these facts were able to be found out by the plaintiff, the plaintiff had not taken all reasonable steps to find out the facts before that time.

32. [32]
    Notwithstanding the concession made by counsel for the first defendant on the hearing of this application, I am satisfied on the balance of probabilities that what the plaintiff found out from Dr. Thompson were material facts of a decisive character.

33. [33]
    What the plaintiff was informed by Dr. Thompson were facts which the plaintiff would have to prove in order to establish the negligent conduct upon which her cause of action in negligence is founded. The matters expressed by the plaintiff in her affidavit regarding Dr. Thompson’s views, in my opinion, were of a decisive character as defined in s. 30(1)b) of the Act.

34. [34]
    This then does bring me to the third step in the approach to this application. In Dick, Thomas JA said at para [30] regarding the third step:

“As to the third step, the question was whether the existence of an alternative safe system of work was “within the means of knowledge” of the plaintiff during the relevant period.  His Honour observed that it is not enough that the plaintiff did not know;  it is a question of his means of knowledge.  His Honour then emphasised that it is the means of knowledge of the plaintiff which are relevant and not the means of knowledge of a hypothetical reasonable man, citing the remarks of Lord Reid in Smith v Central Asbestos Co such as “the plaintiff must have taken all such action as it was reasonable for him to take to found out” and”… this test is subjective.  We are not concerned with ‘the reasonable man’”.  Dawson J observed that s 58(2) [Qld s. 30(1)(c)] unlike s. 57(1)(c) [Qld s 30(1)(b)] “makes no assumption that appropriate advice was received when it was sought.  What is important is the means of knowledge which were reasonably available to the appellant.  And that must mean available in a practical and not a theoretical sense”.

Regarding “means of knowledge”, Thomas JA also said in Dick at para [34]:

“In making a finding of fact on this important question, the reasonableness of the steps taken by the claimant needs to be considered, and of course a claimant will not succeed if he or she has unreasonably delayed in obtaining the necessary advice or information.  However it seems to me, with respect, that the approach of Dawson J with whom Brennan J agreed, represents the correct method.  I note that Murphy ACJ’s judgment is at least consistent with that of Dawson J (with whom Brennan J agreed) and is inconsistent with the approach taken by Wilson and Deane JJ.  The gathering of the necessary information and awareness which will make it reasonable for a claimant to bring an action may well involve progressive stages of awareness.  Such situations were considered by the Full Court in Neilson v Peters Ship Repair Pty Ltd and Randel v. Brisbane City Council.  As those cases indicate, the question whether a fact is not within the means of knowledge of a person at a particular time is still a question of fact.  In Neilson I observed “it may be said of s. 30(d)(ii) that not many ‘steps to ascertain the fact’ can reasonably be expected of a client when he is in ignorance of the need to ascertain it”.

35. [35]
    I accept for the purposes of deciding this application the statements of Thomas JA in Dick state the law to be applied.  In addition, it has been held that the question whether an injured person has “taken all reasonable steps to ascertain” (s. 30(d)) the seriousness of the injury depends on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent inquiry to protect one’s health and legal rights (Healy v. Femdale Pty Ltd, unreported, CA (Qld), 9 June 1993, 37/92).

36. [36]
    I accept the plaintiff’s evidence. I do consider there is no reason not to accept her evidence. I find until the plaintiff consulted Dr. Thompson in September 1999 the plaintiff did not have any belief or reason to doubt that the work which was carried out by the first defendant had been carried out properly and with due skill and care.

37. [37]
    Although the plaintiff agreed in cross-examination she did not receive the perfect result the first defendant told her she would receive and was unhappy with the work and intended to have it redone, and was not going to go back to the first defendant, I find the plaintiff remained in ignorance of the need to ascertain the facts she became aware of when she saw Dr. Thompson.

38. [38]
    That is because after the work was performed the plaintiff did seek the first defendant’s opinions on what the first defendant thought he could do. The first defendant recommended having the work redone. The plaintiff spoke to the first defendant on two occasions regarding the options he could offer the plaintiff. The inference I draw from the plaintiffs evidence is that the first defendant did not tell the plaintiff on those occasions that he did not advise the plaintiff properly or that he did not do the work properly, or that she should seek a second opinion elsewhere. There is no suggestion the plaintiff commenced to suffer pain or physical disability after the work was done such that a person would suspect the work was not done properly. Further, it was not suggested to the plaintiff during her cross-examination that the cosmetic result of the work done by the first defendant was such that the plaintiff would suspect she had not been properly advised and that the work done was not performed properly and therefore she would seek a second opinion from another practitioner for these reasons. The plaintiff said in her evidence she accepted the result was what she paid for and she thought she would see if she could get used to it. The plaintiff’s reaction to a cosmetic matter is, in my opinion, understandable. That is a cosmetic result that was not suggested to be nor on the evidence before me would I find was of such a nature as to lead to a conclusion the plaintiff must have known or at least considered the first defendant’s advice or work or both were below the standard the plaintiff was entitled to expect from someone practising in the first defendant’s field. In my opinion, the plaintiff’s conduct is consistent with her evidence that she was not so unhappy nor did she think the work was inadequate that she thought she should seek a second opinion. As the plaintiff said, she believed the two issues that concerned her, namely the yellowness of her teeth and the canines had been taken care of by the work done by the first defendant . Even though the plaintiff accepted that the work was not as she expected and she was unhappy with the result and would have the work done again in the future when she could afford to have it done again and by someone other than the first defendant that does not persuade me the plaintiff failed to take all reasonable steps to find out the facts. Of course, the plaintiff could have at any time sought a second opinion. However, I find the plaintiff remained in ignorance of the need to do so and that there was no aspect of the work done such as pain or physical disability resulting from the work or such a cosmetic result to suggest to the plaintiff that she seek a second opinion before she saw Dr. Thompson. I am persuaded on the evidence before me that the correct inference to draw about the plaintiff, and which I draw, is that if the plaintiff had sought a second opinion at any earlier time, her inquiry would have more likely than not have been whether the result of the first defendant’s work could be improved by the work being redone rather than was there possibly some fault on the part of the first defendant regarding his advice to the plaintiff and the work performed by him.

39. [39]
    Therefore, I find on the evidence these material facts of a decisive character were not within the means of knowledge of the plaintiff until after the commencement of the year last preceding the expiration of the limitation period.

40. [40]
    I consider I ought to exercise my discretion to extend the limitation period as I consider the extension would not result in significant prejudice to the first defendant: Brisbane South Regional Health Authority v. Taylor (1996-7) 186 CLR 541.  There are no features of the plaintiff’s claim that might affect the availability or reliability of evidence relevant to the issues.  I order that the period of limitation for the commencement of plaintiff’s proceedings be extended to 18 March 2000. 

41. [41]
    The first defendant filed an application in this court on 14 June 2000 to have judgment entered for the first defendant pursuant to r. 293 in the event the plaintiff’s application was not successful. I will hear the parties on the appropriate orders regarding the first defendant’s application and the costs of the plaintiff’s application and the first defendant’s application.