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Todd Owen Dean v Mark Phung [2010] NSWSC 722. Harrison AsJ.

A young worker who chipped a tooth at work in late 2001 was subsequently egregiously maltreated by the defendant dentist: see 40 WCMS 2.

The dentist admitted negligence but asserted prejudice in delay in commencement.

Harrison AsJ noted Limitation Act s 18A: three year limit, and ss 60C and 60E extensions, and authorities, including Brisbane South RHA v Taylor(1996) 186 CLR 541, and Conray v Scotts Refrigerated [2008] NSWCA 60.

In 2006 the GIO notified intention to cease payments.

The plaintiff saw Mr Mark Field, a Law Society accredited personal injury specialist, from Owen Hodge Lawyers, who appeared on a WCC telephone conference with the insurer. Interim payment order was obtained.

File notes from the firm referred to negligence action against the dentist, and a brief to Mr Jak Callaway, which never eventuated, but the worker gave evidence this was never mentioned to him.

In [31], “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’,” her Honour said.

The plaintiff relocated near Kyogle.

“In November 2008, Mr Dean was contacted by Dominic Maait, 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.” [33]

Statement of claim was filed 18 December 2008.

Harrison AsJ said [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.”

Her Honour iterated s 60E(1) factors and evidence.

Referring to the dentist’s insurer’s solicitor, Ms Fiona Dransfield “... gave evidence that her recollection was that it was a call for the file in relation to the workers compensation claim. 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 [the employer] statement of claim in February 2008. 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,” Harrison As J said [45]. There was no actual prejudice.

To s 60E(1)(h), the extent of the loss, her Honour said: “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. [54]

“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.”

Time extended, expedition granted, costs reserved.

P: D Hooke SC, D Toomey, inst Beilby Poulden Costello. D: D Nock SC, inst Guild Legal Ltd.

State Rail Authority of NSW v Cowles [2010] NSWWCCPD 114. Roche DP.

17. The Commission issued a Certificate of Determination in this matter on 7 May 2010. In reckoning time in which to appeal, the date on which the relevant order is made is not counted. Therefore, the 28th day from 8 May 2010 (including 8 May) was Saturday 5 June 2010. Under s 36(2) of the Interpretation Act 1987, if the last day of a period of time prescribed for the doing of any thing falls on a Saturday or Sunday or public holiday or bank holiday, the thing may be done on the first day following that is not a Saturday or Sunday or public holiday or bank holiday. In the present case, that day was Monday 7 June 2010. Therefore, the appeal was lodged in time on 7 June 2010.

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