| Orders by the CTTT:
On 8 September 2003, the Consumer Trader and Tenancy Tribunal of NSW (CTTT)
made orders and gave reasons
for its decision in a claim by the owner of a dog against two veterinary
surgeons who on separate occasions had
treated the dog for the condition known as “cherry eye”.
Claims:
The applicant made her claim both in negligence and under the terms of
her contract for the services to be provided by the Veterinary Surgeon
and sought reimbursement for the fees she had paid, or alternatively that
further treatment be carried out without further cost to her. The basis
of her claim was that she was not satisfied with the appearance of the
dog following surgery and that the Veterinary Surgeon had given an “absolute
guarantee” of a successful outcome.
The Veterinary Surgeons’ defence to the claim was that all procedures
had been performed as agreed, and that
the risks had been explained to the client. They submitted that the concept
of a warranty or guarantee is inappropriate
in the context of veterinary surgical procedures.
The CTTT found that the Veterinary Surgeons had not breached their duty
to the applicant or their contractual
obligations and dismissed the claim. The decision has implications for
the profession generally which are not
dependent on the particular facts of the case.
Jurisdiction:
The Tribunal accepted without any argument that the claim was a “consumer
claim” as defined by section 3 of the
Consumer Claims Act 1998, in that it was a claim “that arises from
the supply of goods or services by a supplier
to the consumer, whether under a contract or not”. The provision
of professional veterinary services is therefore to
be taken in future to be provision of “services” in respect
of which the Tribunal has jurisdiction to hear a claim.
There is an upper limit of $25,000 on Orders the Tribunal may make, and
a claim cannot be made later than 3 years
after the claim arises.
Consumers therefore have an avenue to seek redress against veterinary
surgeons in respect of services provided
which is more accessible than the alternative jurisdiction of the Local
Court. The Tribunal is not constrained by the
strict application of legal technicalities, the right to legal representation
is limited, and the objective is to deal with
applications expeditiously.
Professionals-Advise of Risks:
The Tribunal said in its Reasons that “there is no doubt that a
medical professional has a duty to advise and warn
the applicant of any risks involved in the types of procedures performed”.
The recognition of such a duty in the
veterinary context is of significance. Failure to adequately advise and
warn in breach of that duty could provide a
basis for a successful claim and orders against a Veterinary Surgeon.
Contractual Obligation:
The Tribunal also said in its Reasons that it must also consider “whether
the applicant received the service for
which she has paid”. This fundamental contractual obligation arises
from the terms of the agreement to
provide the service, and requires clear understanding by both parties
as to their expectations of the outcome. It
also emphasises the benefits of using written consent forms, making comprehensive
notes at all stages, and
ensuring that there is a meeting of minds as to all elements of the service
to be provided.
The Tribunal acknowledged that there are “unknown factors relating
to how a living organism will respond to an
invasive procedure”.
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