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AAA v BBB

Case [2005] WASC 139 29 June 2005

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Medical Law

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AAA -v- BBB & ANOR [2005] WASC 139

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 139
Case No:	CIV:1547/2003	Heard:	7 JUNE 2005
Coram:	HASLUCK J	Delivered:	29/06/05
No of pages:	30	Judgment Part:	1 of 1
Result:	Application for leave to amend dismissed
Category:	A
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Parties:	AAA BBB CCC
Catchwords:	Negligence Duty of care Medical practitioner Practitioner providing marital counselling services Practitioner retained by plaintiff's wife to provide marriage counselling services Whether practitioner owed duty of care to his patient's husband Whether sufficient facts and matters pleaded to disclose a reasonable cause of action Application to strike out statement of claim
Legislation:	Nil
Case References:	Astley v Austrust Ltd (1999) 197 CLR 1 Baillieu Knight Frank NSW Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 Baltic Shipping Co v Dillon (1993) 176 CLR 344 Bell v State of Western Australia (2004) 28 WAR 555 Breen v Williams (1996) 186 CLR 71 BT v Oei [1999] NSWSC 1082 Caparo Industries plc v Dickman [1990] 2 AC 605 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Dare v Pulham (1982) 148 CLR 658 Esanda Finance Corp Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hawkins v Clayton (1988) 164 CLR 539 Hill (T/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159 Inkhorn Pty Ltd v Herbert [2000] WASCA 333 Midland Bank Trust Co Ltd v Hett Stubbs & Kemp (a firm) [1979] Ch 384 New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511 Olympic Holdings Pty Ltd v Lochel [2004] WASC 61 Perre v Apand Pty Ltd (1999) 198 CLR 180 Quancorp Pty Ltd v Macdonald [1999] WASCA 101 Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 Rogers v Whitaker (1992) 175 CLR 479 Ross v Caunters [1980] Ch 297 SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26(S2) Seale v Perry [1982] VR 193 State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Sullivan v Moody (2001) 207 CLR 562 Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323 Voli v Inglewood Shire Council (1963) 110 CLR 74 Watts v Public Trustee for Western Australia (1980) WAR 97 Attest Pty Ltd v Donnachie, unreported; SCt of WA; Library No 8577; 6 November 1990 Avenhouse v Council of the Shire of Hornsby [1998) 44 NSWLR 1 Bill Acceptance Corporation Ltd v GWA Ltd (1983) 78 FLR 171 Bruce v Odhams Press Ltd [1936] 1 KB 697 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 Campbelltown City Council v Mackay (1989) 15 NSWLR 501 Cattanach v Melchior (2003) 215 CLR 1 Charlies Carter Pty Ltd v SDAEA (Western Australia) (1987) 13 FCR 413 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: AAA v BBB [2005] WASC 139
Case: [2005] WASC 139
Decision Date

CaseChat Overview and Summary

The plaintiff sought to bring a claim for professional negligence against a medical practitioner who was said to have provided marital counselling to the plaintiff's former wife. The plaintiff contended that the defendant's conduct, including the commencement of a sexual relationship with his wife, led to the breakdown of their marriage and caused the plaintiff loss. The plaintiff sought to rely upon the defendant's breach of a duty of care allegedly arising as a matter of law. The defendants sought to strike out the plaintiff's statement of claim as disclosing no reasonable cause of action and also opposed the plaintiff's application for leave to amend the statement of claim. The plaintiff's application for leave to amend in terms of the substituted minute of claim was dismissed. It was concluded that the facts and matters pleaded did not disclose a reasonable cause of action against the defendants. The plaintiff's claim for emotional distress was found to be unsupported by the circumstances of the case. The Court considered that the plaintiff's application for leave to amend should not be granted because it would not succeed. Accordingly, the defendants were to be allowed to recover costs of and incidental to the application for leave to amend and certain related costs. The Court was not satisfied that an order for indemnity costs should be made.

Orders