Andrews v Allianz Australia Insurance Limited (as agent for NSW Self Insurance Corporation and TAC Fund) [2012] NSWDC 97

District Court New South Wales

Medium Neutral Citation: Andrews v Allianz Australia Insurance Limited (as agent for NSW Self Insurance Corporation and TAC Fund) [2012] NSWDC 97 Hearing dates: 16/07/2012 Decision date: 17 July 2012 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Judgment for the plaintiff for $63,484. Defendant to pay the plaintiff's costs of the proceedings. Catchwords: Personal injury, assessment of dental treatment 32 years after accident Legislation Cited: Civil Liability Act 2002 Motor Vehicles (Third Party Insurance) Act 1942 Cases Cited: Owners-Strata Plan 156 v Gray [2004] NSWCA 304 Category: Principal judgment Parties: Christina Kim Andrews Allianz Australia Insurance Limited (as agent for NSW Self Insurance Corporation and TAC Fund) Representation: E Welsh (Plaintiff) D Stanton (Defendant) Brydens Law Office (Plaintiff) SMK Lawyers (Defendant) File Number(s): 2011/00121707 Publication restriction: No

Judgment 1The plaintiff was born in 1970. When she was 10 years old, in 1980, she was a rear seat passenger in a motor vehicle driven by her father. It was involved in a collision in Rooty Hill. She was injured and now seeks damages arising from these injuries. 2Liability is admitted. Quantum is in issue. 3The main injury the plaintiff suffered was to her teeth. She received treatment, through the third party insurer, from time to time. Proceedings were commenced in 2011 following a successful application for an extension of time. 4The commencing of proceedings in 2011 is significant. At the start of the hearing I was informed that the parties were at issue on the correct regime to be applied to the assessment of damages. The plaintiff said the common law as affected by the Motor Vehicles (Third Party Insurance) Act 1942 (the "MVA") should be applied. Under this Act the plaintiff would be entitled to general damages, interest and the assessment of future economic loss and future medical expenses using a 3% discount rate. 5The defendant said that the Civil Liability Act 2002 (the "CLA"), applied because: (a)Clause 3 of Schedule 1 to the CLA says this: "2 Application of Act to existing injuries and pending claims (1) Part 2 of this Act extends to an award of personal injury damages that relates to an injury received, or to a death resulting from an injury received, whether before or after the commencement of this Act. (2) However, Part 2 of this Act does not apply to or in respect of: (a) an award of damages in proceedings commenced in a court before the commencement of this Act, or (b) an award of damages, or settlement or consent order in respect of damages, made before the date of assent to this Act." (b)"Personal injury damages" are defined in Section 11 to mean "damages that relate to the death of or injury to a person". (c)The civil liability excluded from the CLA by Section 3B makes no mention of the MVA. The two apparently applicable sections are 3B(1)(d) and (e). 6Learned counsel for the plaintiff asked for some time to consider the defendant's argument. Upon resumption, based on the above reasoning, the plaintiff accepted that the CLA dictated the correct regime for the assessment of damages. I have proceeded accordingly. 7The plaintiff was a very impressive witness. She was overtly honest and certainly did not overstate her injuries. In fact, there was a very clear picture of understatement. This was conceded by the defendant. 8Besides the injury to her teeth the plaintiff suffered a laceration to her left leg. There was a suggestion that there may have been a fracture but there is no medical evidence to this effect and she said the injury was treated by bandages and not the application of a cast. Whatever the nature of the injury to the plaintiff's leg she made little of it and it plays only a small part in the assessment of damages. 9The main focus on the plaintiff's condition concerns her teeth. In summary, she suffered an injury to three top teeth at the front of her mouth and one bottom tooth, also at the front. The medical reports generally refer to the upper teeth as 12, 11 and 21 and to the lower tooth as 32. 10Both parties relied on a number of medical reports; in some cases they relied on the same report. The medical reports are from a variety of dental specialists all giving their view of appropriate treatment regimes, often differing in small detail but sometimes markedly. In addition, their costings often vary. None of the experts was called to give oral evidence and the Court is faced with doing its best to discern the competing views and costs. 11The plaintiff said that after some months waiting for the swelling of her mouth to reduce she received dental treatment from a Dr Sender who reconstructed the teeth by way of composite bonding, which she described as a "cement" treatment. When she was 16 she had root canal therapy involving the insertion of metal-ceramic crowns. They are still in place. 12Although the crowns initially achieved a good result, over the last four years or so the plaintiff has noticed that her gums have receded and there is a black border between her teeth and her gums. She says it is quite ugly. I looked at her teeth and agree with her assessment. My observation is borne out by the colour photograph attached to the report of Dr Yeung in Exhibit 1. 13There is no dispute between the parties that the plaintiff needs treatment for her teeth. The dispute concerns the extent and timing of the treatment. I will deal with the upper teeth first. 14The position put by the plaintiff is that the view of Dr Ironside should be accepted. In his report dated 17 April 2012 (Exhibit A) he says that the three relevant upper front teeth should be removed and replaced with prosthetic teeth following a carefully planned treatment regime. He sets this regime out in paragraph two of his report. The cost of the treatment plan is about $22,900. Dr Ironside's second report says his costing omitted soft tissue augmentation so that, based on Dr Pagni's costing, a further $2,000 must be added. 15The defendant's submission was that about $20,000 should be allowed based on the opinion of Dr Howe (Exhibit 1) who endorses Dr McLaughlin's figure of $21,585. It was conceded that this figure omits the augmentation costs. The dispute is effectively a contest between $23,585 and $25,000. 16I have decided to accept the view of Dr Ironside for the following reasons: I think he gains support from Dr Yeung and secondly, and more importantly, he specifically addresses the reports of a number of the other practitioners who have provided opinions. Although these do not include Dr Howe, they do include Dr McLaughlin whose treatment plan was specifically approved of by Dr Howe. 17I therefore allow $25,000 for the immediate treatment of the plaintiff's upper front teeth. 18Dr Ironside does not deal with the lower front tooth. The opinion about this tooth seems to be that it does not require immediate work but may do so in the future. The plaintiff, reasonably, said that if she was going to have the upper teeth repaired she would prefer to have the lower tooth fixed at the same time. This seems to be based on its appearance and getting over the pain of the procedures at the same time. 19In relation to the lower tooth (Number 32) Dr Yeung says that it has "now shown an unsatisfactory aesthetic appearance and should probably be replaced in conjunction with the remaining treatment in the upper jaw". 20Dr Howe, in his first report, says tooth 31 appears to be stable but in his supplementary report, having seen a radiograph of the tooth, he states: "The radiograph supplied by Dr Hutchinson shows tooth 3.1 has been successfully endodontically treated and has a post retained crown in place - the crown is aesthetically poor both in shape (contour) and colour however the crown is perfectly functional and Mrs Andrews made no comment as to the lack of aesthetics. At some time the crown will require replacement at a cost of less than $2,500.00. See original report as to possible ongoing liability re fracture and loss." 21The next point is how much should be allowed for this tooth. Dr Howe suggests less than $2,500. Dr Hutchinson also thinks there should be a new crown if the plaintiff is unhappy with the aesthetics of it. She puts forward a figure of $2,000. I allow this amount. 22The next issue concerns future treatment for the four teeth. The plaintiff has claimed $11,000 after 10 years and then a further $11,000 after two further gaps of 10 years, all figures appropriately discounted. The defendant has submitted that there is no real basis for future treatment of the crowns. It was submitted that the present crowns have lasted since the plaintiff was 16 and there is no reason why the new crowns should not last a similar time. 23The defendant suggested a global sum of $5,000 for all future treatment. 24The difficulty with the defendant's argument is that the crowns inserted when the plaintiff was 16 have not lasted without change, although their lifespan does seem to have been more than 10 years. Dr McLaughlin, in his report of 18 January 2010, actually refers to failed crowns and failed restorations. 25In addition to Dr Hutchinson, Dr Yeung also refers to the likelihood that "replacement crowns, etc might be needed in future". 26In my view, replacement crowns should be allowed for each of the four teeth at $2,000 each (derived from Dr Hutchinson) but on three occasions each 15 years apart to take into account the differing views on the longevity of the crowns. 27The total cost of $8,000 for replacement crowns should be deferred on the 5% tables for 15 years, 30 years and 45 years. The resulting replacement costs for each occasion are $3,848, $1,848 and $888 respectively, making a total of $6,584. 28The plaintiff has also claimed a sum of $10,000 essentially to guard against future mishaps, failed treatments or unexpected developments in the future. None of the doctors mention such a figure, although one must accept that their treatment plans do not contemplate failure. I do not think the $10,000 should be allowed but having regard to the fact that I have provided for a 15 year interval between the crown replacements I think some consideration must be given to these periods perhaps being accelerated. I allow $5,000 for this possibility and the possibility of further non-envisaged procedures being necessary. 29Turning now to non-economic loss, the defendant submitted that I should go back to the principles stated by the Court of Appeal in Owners-Strata Plan 156 v Gray [2004] NSWCA 304 in particular as set out from paragraph 32. The defendant then went on to submit that the appropriate range was 5 to 10%. The plaintiff submitted that 25 to 28% was correct. In my view, applying the principles in Gray, the submissions of both parties are outside the appropriate range. 30As I have said above the plaintiff was an honest and impressive witness. She was remarkably silent on the difficulties she no doubt faced as a young woman growing up with unsightly teeth. Although it seems that the cosmetic effect has changed over the years, she no doubt suffered embarrassment at various times since the accident. In addition, she suffered the pain and discomfort associated with the dental work she has endured so far. A good deal more pain and suffering, arising from dental work, lies in the future. 31I accept the plaintiff suffered a leg injury but because there is very little evidence about it I am not in a position to find that there was a fracture or that very much pain and suffering was associated with the injury. I have, however, taken it into account in my assessment of non-economic loss. 32I think the correct percentage is 22%. This equates, under Section 16 of the CLA, to a monetary sum of $23,500.00. 33Out of pocket expenses were agreed at $3,683.10. I note that this amount has already been paid on behalf of the defendant. 34The final outstanding head of damages is future economic loss. The plaintiff claims four weeks at $450 per week. The basis for the claim is that she will need the time off to have the proposed treatment. The defendant says the amount is excessive and no more than $1,000 should be allowed. The difference between the parties is $800. It is difficult to know exactly how long the plaintiff will need off work. Her current job involves a good deal of driving so that it would seem inappropriate for her to have treatment on the same days that she works. I also take into account that she might need some time off when her crowns are replaced. Ultimately I think the fair resolution is to split the difference between the parties' submissions. I allow $1,400. 35A summary of the damages I have assessed is as follows: Immediate upper front teeth treatment $25,000.00 Immediate lower tooth treatment $2,000.00 Future replacement costs for all teeth $6,584.00 Other future treatment $5,000.00 Non-economic loss $23,500.00 Future economic loss $1,400.00 Total $63,484.00