Li v Advanced Health Invest Pty Ltd t/a Mastery Dental Clinic [2022] NSWCATCD 19

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Li v Advanced Health Invest Pty Ltd t/a Mastery Dental Clinic [2022] NSWCATCD 19 Hearing dates: 5 November 2021 Date of orders: 19 January 2022 Decision date: 19 January 2022 Jurisdiction: Consumer and Commercial Division Before: E Sarofim, General Member Decision: 1. By order of the Tribunal, the Respondent is to pay the applicant the sum of $5923 immediately. Catchwords: HEALTH AND MEDICAL — Professional misconduct and Australian Consumer Law — Whether the Respondent failed to comply with the guarantee as to due care and skill in section 60 of the Australian Consumer Law — Whether reasonably foreseeable damage and loss — Appropriate measure of compensation Legislation Cited: Fair Trading Act 1987 (NSW) Competition and Consumer Act 2010 (Cth) Schedule 2 ('Australian Consumer Law') Civil Liability Act 2002 (NSW) Cases Cited: Cook v Pasminco [2000] FCA 677 Let's Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 Texts Cited: Miller's Australian Competition and Consumer Law Annotated, 2020 Category: Principal judgment Parties: Guang Li (Applicant) Advanced Health Invest Pty Ltd t/a Mastery Dental Clinic (Respondent) Representation: Applicant (Self-represented) Respondent (Self-represented) File Number(s): GEN 21/13653 Publication restriction: None

REASONS FOR DECISION

A. BACKGROUND 1. These consumer law proceedings relate to a claim brought by the Applicant consumer (Guang Li) against the Respondent dental provider (Advanced Health Invest Pty Ltd t/a Mastery Dental Clinic). 2. The Applicant seeks compensation in respect of the provision of dental services on tooth 16 and tooth 17 by the Respondent between November 2018 and January 2019. 3. Specifically, the endodontic file fractured on the mesial canal of tooth 17 on 3 January 2019. 4. The Applicant alleges that the Respondent failed to provide dental services with due care and skill. The claim relates to the treatment options and service provided by the Respondent's practitioners, and principally, Dr Zhang. 5. The Applicant seeks $29,805 in compensation from the Respondent based on the following: 1. Refund of the cost of the services provided by the Respondent. 2. Reimbursement of the cost of remedial services by alternative providers. 3. Allowance for future dental treatments required given the complications arising from the separation of the dental file in tooth 17. 4. Compensation for physical and emotional/mental pain and suffering. 1. I make the following three points concerning the evidence in this matter. 2. First, the factual evidence concerning the options which may have been offered to the Applicant patient is in dispute between the parties. This includes what treatments were carried out on particular dates and what transpired between the parties in that period in terms of disclosure of treatments parameters and costs. 3. There is in particular, disagreement as to whether the Respondent advised the Applicant on the last day he attended for treatment on 3 January 2019 that the medical file had separated and become lodged in the canal of tooth 17 and that the crown placement procedure had been completed. 4. Second, the matter raises expert dental issues. Both parties have filed multiple bundles of evidence and submissions including expert dental reports and articles. These require evaluation by the Tribunal. 5. Third, there is before the Tribunal as part of the dispute findings made by the Dental Council of New South Wales against one of the Respondent's practitioners, Dr Zhang, in response to a complaint by the Applicant to that Council. The complaint stems from the same factual matrix. The Council held a hearing in respect of the complaint and it made certain findings of unsatisfactory professional conduct. 6. It is of fundamental importance for the Tribunal to note that such findings are not themselves synonymous with a finding of non-compliance with the requirement that the Respondent provide services with due care and skill under the Australian Consumer Law (ACL). This issue must be determined by the Tribunal in accordance with established legal principles concerning section 60 of the ACL and the totality of the evidence and argumentation before the Tribunal. 7. The issue of consequential loss and measure of damages also requires determination by the Tribunal.