Chahoud v Koleda

[2008] NSWSC 1060

Reported Decision: 72NSWLR 740

New South Wales

Supreme Court

CITATION:

Chahoud v Koleda [2008] NSWSC 1060

HEARING DATE(S):

8 April 2008-9 April 2008

 
JUDGMENT DATE : 

10 October 2008

JURISDICTION:

Common Law

JUDGMENT OF:

Rothman J

DECISION:

(1) Pursuant to Rule 28.3 of the Uniform Civil Procedure Rules 2005, the Court answers the following three questions separately from any other question and in the following manner:

(i) Did the defendant owe the plaintiff a duty of care in respect of the allegations of negligence pleaded in paragraphs 14 and 23 of the statement of claim?
Answer: No.

(ii) Is the allegation of negligence pleaded in paragraph 14 of the statement of claim time-barred due to the operation of the Limitation Act 1969 (NSW)?
Answer: Yes.

(iii) Does an immunity from suit operate in favour of the defendant in respect of the allegations of negligence in paragraphs 14 and 23 of the statement of claim such as to preclude such liability as is alleged against the defendant based upon those paragraphs?
Answer: Yes.

(2) Liberty is granted to the parties to apply for any consequential order.

(3) Liberty is granted to the parties to apply to the Court, as presently constituted, in relation to the costs of this motion. Such application may be made by filing and serving a submission within 14 days of these orders and a response thereto may be filed and served within a further 7 days.

CATCHWORDS:	NEGLIGENCE – duty of care – scope – medical practitioner has no duty to beneficiary of will of deceased patient in relation to advice to court of deceased’s capacity - STATUTE OF LIMITATIONS – “negligent” act complete more than six years prior – statute barred - JUDGES AND COURTS – witness immunity – complete indemnity for contents of letters provided by doctor to court or legal practitioner on capacity of deceased patient to execute will - PRACTICE AND PROCEDURE – separate questions answered
LEGISLATION CITED:	Limitation Act 1969
CATEGORY:	Principal judgment
CASES CITED:	Anns v Merton London Borough Council [1978] AC 728 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 Caparo Industries v Dickman [1990] 2 A.C. 605 Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Edson v Roads & Traffic Authority [2006] NSWCA 68; (2006) 65 NSWLR 453 Meadow v General Medical Council [2007] QB 462 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Ollis v New South Wales Crime Commission [2007] NSWCA 311 Pollock v Waterhouse [1999] NSWSC 1053 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 Wardman v Hatfield [2003] NSWCA 283
PARTIES:	Assem Chahoud (Plaintiff) Victor Koleda (Defendant)
FILE NUMBER(S):	SC 20297/2005
COUNSEL:	B Dennis - Solicitor (Plaintiff) J K Kirk (Defendant)
SOLICITORS:	Dennis & Co Solicitors (Plaintiff) Blake Dawson Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

10 OCTOBER 2008

20297/2005 Assem Chahoud v Victor Koleda

JUDGMENT

1 HIS HONOUR: The Court is asked to answer three questions, the answers to which determine whether the plaintiff, Assem Chahoud, has an arguable cause of action against Dr Victor Koleda.

2 The cause of action alleges professional negligence by Dr Koleda. The negligence is said to arise out of letters written by Dr Koleda in relation to the capacity of his patient, Mr Mohamad Kassem Chahoud (“the deceased”), who was the plaintiff’s uncle.

3 The deceased had appointed the plaintiff as his attorney, by the grant of a general power of attorney and later made him the executor and trustee of his will as well as the sole beneficiary. Mr Mohamad Chahoud died. A dispute arose between the plaintiff and the plaintiff’s brother as to the validity of the will, which dispute (at least in part) was before the courts in Lebanon. Dr Koleda wrote two letters, used in two proceedings, which advised, in essence, that the deceased had no capacity at or during the time that the will was executed. The courts in Lebanon determined that the deceased’s brother (also the plaintiff’s uncle) should have the estate and, subsequently, caused the plaintiff to be arrested and incarcerated.

4 There is material, even at this preliminary stage, from which it can be assumed that Dr Koleda was wrong about the deceased’s incapacity. Nevertheless, the questions do not deal with whether Dr Koleda was negligent, or even whether he was wrong. Nor do the preliminary questions deal with whether the effect of the outcome of judicial proceedings (not commenced as an abuse) can ever amount to damage.

5 The preliminary questions the Court must answer are:

(i) Did the defendant owe the plaintiff a duty of care in respect of the allegations of negligence pleaded in paragraphs 14 and 23 of the Statement of Claim?

(ii) Is the allegation of negligence pleaded in paragraph 14 of the Statement of Claim time-barred due to the operation of s 14, or alternatively ss 14 and 18A of the Limitation Act 1969 (NSW)?

(iii) Does an absolute immunity from suit operate in favour of the defendant in respect of the allegations in paragraphs 14 and 23 of the Statement of Claim?

6 As already stated, the particulars of negligence are not, at this stage, relevant. It is, given the references in the questions above, desirable, although not essential, to recite paragraphs 14 and 23 of the Statement of Claim. The plaintiff urges that paragraph 14 be read in the context of paragraphs 12 and 13 of the Statement of Claim. They are:

“12. Upon filing of the application in the Sunni Court to have the property belonging to the Estate of the Late Mohamad Kassem Chahoud in the Basatine District Tripoli transferred to his name the plaintiff met objection from his uncle Ismat Chahoud who claimed to be the legal guardian of the whole estate of the Late Mohamad Kassem Chahoud pursuant to decision of the said Sunni Court on 20th February 1996.


13. Upon investigation of the Sunni Court decision referred to in the preceding paragraph the plaintiff became aware that a critical factor taken into consideration by the Court in making the decision was medical evidence forwarded by the defendant to Ismat Chahoud and his legal representative, Mohamad Khaled El Murad in Tripoli Lebanon.


14. The plaintiff alleges that the letter written by the defendant describing the medical condition of the Late Mohamad Kassem Chahoud as particularized in the preceding paragraph is materially and manifestly incorrect and in the circumstance constituted negligence.


…


23. The plaintiff alleges that the letter referred to in the preceding paragraph presented a manifestly and materially erroneous description of the clinical condition of the Late Mohamad Kassem Chahoud and in the circumstance constituted negligence as it tended to mislead and create the wrong impression by the recipient as to the testamentary capacity of the Late Mohamad Kassem Chahoud during his convalescence at Villawood Nursing Home.”

[The particulars of negligence in each paragraph have been omitted.] Paragraphs 14 and 23 above refer to two different letters.

Facts

7 While a broad overview of the facts has been given, it is appropriate to recite the facts agreed between the parties. Such factual agreement is for the purpose only of these interlocutory proceedings. The agreed facts document is in the following terms:

“1. The plaintiff is the nephew of the late Mohamed Kassem Chahoud ( the Deceased ). The Deceased was unmarried and did not have any children.

2. At all material times, the defendant was a registered medical practitioner and practiced as such from premises located at 31-33 Neville Street, Smithfield in New South Wales.

3. The Deceased, a Lebanese national, was a Brazilian resident and lived in Sao Paolo.

4. The Deceased first visited the plaintiff in Australia in mid-1988. The Deceased made several subsequent visits to Australia, the last of which was in August 1995. On each occasion, the Deceased stayed with the plaintiff.

5. On 3 August 1995, the Deceased made a general power of attorney authorizing the plaintiff to take care of the Deceased’s business and properties in Australia, Brazil and Lebanon.

6. During October and November 1995, the Deceased visited the office of John Sarroff & Company solicitors for the purpose of making his will, amongst other things.

7. On 9 November 1995, the Deceased suffered a stroke. He was admitted to Liverpool Hospital in New South Wales. Upon admission, the deceased was diagnosed with a massive right hemisphere infarct. A CT scan on 12 November 1995 revealed infarction in the distribution of the right middle cerebral artery.

8. On 4 December 1995, the Deceased was transferred to Villawood Nursing Home in New South Wales.

9. During the period 5 December 1995 to 20 April 1996, the defendant, who had not previously met the Deceased, consulted the Deceased from time to time at Villawood Nursing Home in his capacity as a doctor.

10. On 8 January 1996, a will was executed in the name of the Deceased ( the Will ). The Will was executed by the Deceased by placing a thumbprint on it. The contents of the Will were explained to the Deceased by one of the two witnesses before the Will was executed. At this point, the Deceased was unable to sign his name.

11. Under the terms of the Will, the plaintiff was to be the executor and sole beneficiary of the Deceased’s Estate. The Estate included property in Sao Paulo in Brazil and Tripoli in Lebanon. A copy of the Will is annexed and marked A .

12. The defendant met the plaintiff on several occasions during the Deceased’s time at Villawood Nursing Home. The defendant had no knowledge of the execution of a will while the Deceased was at the Villawood Nursing Home.

13. On 20 February 1996, in a decision of the Sunni Court dated 20 February 1996, judgement [sic] number 490/479 from record number 188 of 1996, Mr Ismat Chahoud, the brother of the Deceased, was appointed the custodian and legal guardian of the Deceased’s properties (who was then still alive) in Lebanon and abroad. The Sunni Court is within the official court system of the Republic of Lebanon, constituted by a judge. It deals with certain matters of personal status, including matters of inheritance, with respect to Sunni persons. The Deceased was Sunni.

14. On or about 20 April 1996, the Deceased was moved to Liverpool Hospital following a deterioration of his condition. He was later moved to Fairfield Nursing Home.

15. On 9 May 1996, the Deceased passed away.

16. On 1 July 1996, probate of the Will was granted by the Supreme Court of New South Wales.

17. Following the grant of probate by the NSW Supreme Court, the Deceased’s Brazilian property was transferred to the plaintiff and sold.

18. The plaintiff forwarded a notarised copy of the grant of probate and made an application to the Sunni Court in Tripoli Lebanon to have property belonging to the Deceased’s estate transferred to his name.

19. The plaintiff’s application to have the Deceased’s Lebanese property transferred to his name met with the objection of the plaintiff’s uncle, brother to the Deceased, Mr Ismat Chahoud. Mr Ismat Chahoud claimed to be the legal guardian of the whole estate of the Deceased pursuant to the decision of the Sunni Court on 20 February 1996.

20. Litigation ensued in the Sunni Court in Lebanon between Mr Ismat Chahoud and the plaintiff in relation to the Deceased’s Estate (the Estate Proceedings ).

21. Following a request by Mr Mohamad Khaled El Murad ( Mr El Murad ), Mr Ismat Chahoud’s lawyer in Tripoli, the defendant sent Mr El Murad a letter which was used in the Estate Proceedings (the First Letter ). The First Letter bears the date 18/3/1995. In fact, the First Letter was written and sent sometime in early 1996. The First Letter is annexed and marked B .

22. Mr Ismat Chahoud made use of the First Letter in the Estate Proceedings before the Sunni Court.

23. On 5 February 1998, the Sunni Court in Lebanon delivered a decision in the Estate Proceedings in which Mr Ismat Chahoud and Ms Nachrawan Chahoud (the Deceased’s sister) were held to be the sole beneficiaries of the Deceased’s estate.

24. As a result of this decision of the Sunni Court, the plaintiff lost valuable assets of the Deceased held in Lebanon (including real property) that he would otherwise have been entitled to given his grant of probate under the Will. The plaintiff asserts that these assets were worth in the order of USD 550,000 at the time this proceeding was brought.

25. The plaintiff incurred significant legal expenses in relation to and for the purposes of defending his position during the conduct of the Estate Proceedings. He also incurred significant personal expenses in relation to the conduct of the Estate Proceedings, including the costs of travelling [sic] to and staying in Lebanon during the proceedings, and lost income during this time.

26. Shortly after the handing down of the Sunni Court’s decision in the Estate Proceedings, Mr Ismat Chahoud filed a complaint with the Criminal Investigation Unit in Lebanon accusing the plaintiff of forging the Will and stealing the Deceased’s properties and assets (both inside and outside Lebanon).

27. In 2000, the plaintiff was formally charged in Lebanon. The charge was brought under Articles 459/455 of the Lebanese Penal Code and alleged the plaintiff had obtained property by use of a document which he had falsified, namely the Will ( the Criminal Charge ).

28. On 26 December 2000, the General Prosecutor’s Office in Tripoli, Lebanon (being the governmental office responsible for the prosecution of the Criminal Charge) recommended that the Criminal Charge against the plaintiff be withdrawn.

29. On 9 January 2001, Mr El Murad wrote to the defendant (Mr El Murad’s Letter). A copy of Mr El Murad’s Letter is annexed and marked C . This letter was sent by Mr El Murad from Tripoli in Lebanon and received by the defendant in NSW.

30. On 12 January 2001, the defendant wrote a letter to Mr El Murad in response to Mr El Murad’s Letter ( the Second Letter ). The Second Letter is annexed to this Statement and marked D . The Second Letter was faxed and then sent by post by the defendant from NSW to Mr El Murad’s address in Tripoli, Lebanon.

31. The defendant understood from Mr El Murad’s Letter that the Second Letter was sought for and may be used by Mr El Murad (and his clients) in the course of legal proceedings in Lebanon concerning the will or wills of the Deceased.

32. After 12 January 2001, the General Prosecutor’s Office revisited the evidence surrounding the will of the Deceased, and relating to the Criminal Charge, and reconsidered whether the Criminal Charge against the plaintiff should be proceeded with.

33. In October 2001 the plaintiff was interrogated by Lebanese Crime Investigators in Tripoli.

34. On 21 October 2001, the plaintiff was re-charged with the Criminal Charge under Articles 459/455 of the Lebanese Penal Code. He was arrested and released on bail pending further investigation ( Lebanese Criminal Proceedings ). This process involved re-activation of the Criminal Charge as it had been brought in 2000.

35. The General Prosecutor’s Office conducted further investigations, including communications with John Sarroff & Company Solicitors (who had acted in relation to the Will) with respect to the circumstances in which the Will was made. That correspondence is annexed and marked E , and the response is annexed and marked F .

36. On 12 December 2004, the plaintiff returned to Tripoli (having been back to Australia in the meantime) to attend a court hearing, in the Criminal Court of Tripoli, of the Criminal Charge on 16 December 2004. The Criminal Court of Tripoli is another official court in the court system of the Republic of Lebanon. The Court is constituted by a Senior Judge and two Legal Consultants for the purposes of hearing the Criminal Charge at first instance (there is no jury).

37. On 16 December 2004, the Lebanese Criminal Proceedings were adjourned until 12 January 2005.

38. On 12 January 2005, the plaintiff was arrested in Tripoli once again but was released on bail of USD 25,000 on 23 January 2005. The plaintiff was required to remain in Lebanon for the next sitting of the Lebanese Criminal Proceedings in May 2005.

39. On 5 September 2005, the plaintiff commenced the current proceedings in this Court.

40. The Lebanese Criminal proceedings continued at different times throughout 2006. As a condition imposed by the Court in the Lebanese Criminal Proceedings, the plaintiff was required to be present during each sitting of the Court. The Plaintiff attended Lebanon on three separate occasions during 2006.

41. The Lebanese Criminal Proceedings were again before the Court on 7 November 2007 and have not yet been finally determined.

42. The plaintiff has incurred significant legal and personal expenses with respect to the Criminal Charge from shortly prior to the Criminal Charge being brought.”

8 It is unnecessary to set out each of the annexures to which reference is made. I do recite the two letters from Dr Koleda, dated 18 March 1995 and 12 January 2001, respectively. They are annexures “B” and “D” to the agreed facts.

“18th March 1995.

To whom it may concern,

Re: Mr Mohmnad Chehoud
DOB: 16/1D/23

This is to certify that this person is a patient at Villawood Nursing Home. He developed a sudden stroke while he was a visitor in Australia.

He has a complete left hemiparesis due to a massive right
cerebral haemorrhage [sic].

He is unable to communicate, sign his name or manage any of his, [sic] financial affairs.

Your [sic] faithfully,

Dr. V. Koleda.”

“MOHAMAD KHALED EL MURAD
TRIPOLI BOULVARDE ADRA BUILDING
TRIPOLI
LEBANON

DEAR SIR,

RE: MOHAMAD CHEHOUD
ADMITTED: 5/12/95
DISCHARGED 23/4/96

I attended Mohamad Chehoud when he was admitted to Villawood Nursing Home on the 5/12/95.

He was transferred from Liverpool Hospital. He was admitted to Liverpool Hospital after having a stroke.

On admission to Villawood Nursing Home he was in a coma, just rousable. He had a left hemiparesis and was incontinent. He had involuntary movements in the right arm and right leg.

He received palliative care and his prognosis was always poor. He was fed via a naso gastric tube at [his] he could Ttake [sic] oral fluids.

He remained in a coma while he was [at] the nursing home and required an indwelling urinary catheter on the 2/1/96. He continued to receive palliative care and he was not expected to recover. He was unable to manage any financial or legal affairs since his stroke.

He remained in Villawood Hospital until he was transferred to Liverpool hospital for a blood transfusion.

YOURS FAITHFULLY

DR. V. KOLEDA”

9 The Court accepts, without deciding, that the letters, either or both, caused the respective outcomes in the Lebanese courts. There is no evidence of the law or procedure adopted by those courts. I assume, although it is presently irrelevant, that the legal system is a civil law system through which the ecclesiastical courts operate and they operate fairly to achieve outcomes in accordance with the law of Lebanon.

10 The Court makes one other comment of a general nature before dealing with each of the questions. The plaintiff’s submissions seem, in part, to suggest that the Court ought not answer the questions posed because it is inappropriate (or misconceived) to determine separately the issues of the existence of the duty of care, the time limitation in commencing the procedure, and the issue of witness immunity upon which Question (iii) depends.

11 There are substantial reasons for not separately determining issues except in exceptional cases. However, the plaintiff consented to orders for the separate determination of these questions. Further, while some of the agreed facts would be in issue if the matter were to proceed, the agreed facts represent the facts as the plaintiff alleges them. Given the agreement of the parties and the fundamental and preliminary nature of the issues raised by the questions, the Court should proceed to deal with the questions asked. The foregoing does not mean that each question should be answered. If the answer to a question would depend on different facts (not agreed) or the answer to a different question, then the Court may not answer the question posed.

Question (i): Duty of Care to the Plaintiff

12 The plaintiff submits that a duty of care exists when, in the reasonable contemplation of the wrongdoer (in this case Dr Koleda), carelessness on his part may be likely to cause damage to the plaintiff unless there are considerations which negative, reduce or limit the scope of the duty or the class of person to whom it is owed. In so submitting, the plaintiff relies on the judgment of Lord Wilberfoce in Anns v Merton London Borough Council [1978] AC 728 at 751-752. The plaintiff submits there are no considerations, in the present case, that ought to negative, to reduce or to limit the scope of the duty or the class of person to whom it is owed.

13 The plaintiff submits that the agreed facts disclose a knowledge that the plaintiff was a member of the class of persons that Dr Koleda knew would likely be damaged by his carelessness in writing the letter. At the very least, the plaintiff submits, it is an inference that the Court should draw.

14 The plaintiff submits that the defendant only came into contact with the deceased after his admission to Villawood Nursing Home, i.e. after the alleged stroke. On the file at the Nursing Home was the power of attorney nominating the plaintiff. Consequently, the plaintiff submits, if the defendant were to owe a duty to the deceased, he also owed a duty to the plaintiff, as the deceased’s nominated attorney and decision-maker and the only immediate relative of the deceased in Australia.

15 The principle upon which the plaintiff relies to establish a duty of care, derived from Anns, if it still be the law in the U.K. (see Caparo Industries v Dickman [1990] 2 A.C. 605), is not the basis of establishing duty of care in Australia. The authorities in Australia, while in some areas difficult to apply, do not start with the proposition that there is a duty to all persons likely to be caused damage by carelessness unless there is good reason to limit or negative the duty. Foreseeability of risk is not the determinant of legal liability. As the High Court said in Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562:

“42. The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care.” (Per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.)

16 The issue, on Australian authority, is whether the law imposes a duty. It is not resolved by restating the foreseeability test. The High Court in Sullivan v Moody cited with approval the comment of Professor Fleming who said “‘no one has ever succeeded in capturing in any precise formula’ a comprehensive test for determining whether there exists, between two parties, a relationship sufficiently proximate to give rise to a duty of care of the kind necessary for actionable negligence.” (See Sullivan v Moody at [48].) Proximity is the question, not the answer.

17 Further, the High Court dealt with how a court determines the existence of such a duty. Their Honours said:

“[50] Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle. In Donoghue v Stevenson , for example, Lord Buckmaster, in dissent, was concerned that, if the manufacturer in that case was liable, apart from contract or statute, to a consumer, then a person who negligently built a house might be liable, at any future time, to any person who suffered injury in consequence; a concern which later cases showed to have been far from fanciful. The problem which has caused so much difficulty in relation to the extent of tortious liability in respect of negligently constructed buildings was not only foreseeable, but foreseen, in the seminal case on the law of negligence.

[51] In Dorset Yacht Co Ltd v Home Office , Lord Diplock said:

‘...[T]he judicial development of the law of negligence rightly proceeds by seeking first to identify the relevant characteristics that are common to the kinds of conduct and relationship between the parties which are involved in the case for decision and the kinds of conduct and relationships which have been held in previous decisions of the courts to give rise to a duty of care’.


[52] Conversely, conduct and relationships may have been held not to give rise to a duty of care, and the reasons for that holding may provide an important guide to the solution of the problem in a new case.

[53] Developments in the law of negligence over the last 30 or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is ‘fair’ or ‘unfair’. There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted.”

18 Most relevantly, the High Court said:

“[54] At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.

[55] More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.

…

[61] There is also a question as to the extent, and potential indeterminacy, of liability. In the case of a medical practitioner, the range of people who might foreseeably (in the sense earlier mentioned) suffer some kind of harm, as a consequence of careless diagnosis or treatment of a patient, is extensive.”

19 Accepting, without deciding, that the special position of the plaintiff in relation to the deceased, gave rise to a relationship between the plaintiff and the defendant, does that relationship impose an actionable duty in relation to the provision to a court of an honest but negligently mistaken view as to the condition of the deceased?

20 The duty alleged by the plaintiff does not depend upon the location of the court. It is a duty that would render actionable a negligent opinion on the capacity of the deceased provided to this Court.

21 The determination of the existence of a duty of care and its scope has been discussed further by the High Court in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 (“Dederer”). There has been much comment on Dederer and its effect. Some have suggested that it is confined to road authorities, but the approach taken by the majority is not so confined and the general tests, at least if the authority has taken some steps, are the same: Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at [89] per Gaudron, McHugh and Gummow JJ, and Kirby J at [226] and following.

22 However, the principles refined in Dederer relate essentially to whether the duty of care must take account, as a matter of fact or as a matter of law, of the foreseeability of risks to persons who do not take proper care for their own safety (compare Edson v Roads & Traffic Authority [2006] NSWCA 68; (2006) 65 NSWLR 453). While the issue is most relevant to personal injury cases, it seems not to be so confined and, for example, may encompass issues relating to financial and other advice to persons who may act without proper regard for their own interests.

23 Nevertheless, this is not a case that turns on such a refinement. This case is a useful one for the approach suggested by Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at [104]. There his Honour said:

“In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend.”

24 If the defendant, Dr Koleda, were to be held responsible for the “damage” in this case, it would not be a duty confined to these two letters. It would require the Court to impose upon medical practitioners a duty not to disclose their honestly-held but negligently-formed opinion to courts, if the opinion were antithetical to the legal interests of their patient and to their patient’s personal representative and/or family.

25 The remedy for a view of that kind, however negligently formed, is in the proceedings in which that view is expressed; not in the law of negligence.

26 There are a number of paths by which one may reach that conclusion. First, by analogy, the duty sought to be imposed most resembles the circumstances in Sullivan v Moody, supra.

27 Second, if there be a duty of care, it would be to act consistently with the interests of the patient. If a medical practitioner honestly (but negligently) believes that a patient did not have capacity to execute a will, the medical practitioner’s duty to the patient would override any alleged duty to his beneficiary under the will.

28 Third, any duty owed to the plaintiff would be confined to a duty owed to him in his capacity as the attorney under the deceased’s power of attorney or as his family representative. While such a duty may extend beyond the deceased’s demise, it would not extend to a duty to the plaintiff in his capacity as a beneficiary of the deceased’s will.

29 Fourth, the duty to give honest evidence to a court (or legal representative on behalf of the court) must override any duty to the plaintiff. If the honest view expressed were formed negligently, so be it. That view will no doubt be an issue in the proceedings. On this analysis, even the test in Anns, supra, relied upon the plaintiff, would not permit this claim to proceed, because the consideration of the duty to give honest evidence when required so to do would negative any general duty.

30 For the foregoing reasons, there is no actionable duty of care owed by Dr Koleda, the scope of which would provide the plaintiff with a cause of action in negligence for writing letters to a court expressing a view, negligently formed, as to the capacity of the deceased.

Question (ii): Limitation of Action

31 The plaintiff commenced these proceedings on 6 September 2005. The applicable limitation period is 6 years pursuant to the terms of s 14 of the Limitation Act.

32 The first letter, which is the basis for the allegation of negligence in paragraph 14 of the Statement of Claim, is dated 18 March 1995. The date specified in the letter is plainly wrong. It seems clear, and is certainly more probable than not, that the first letter from Dr Koleda was written on 18 March 1996.

33 The plaintiff alleges loss and damage as a result of the first letter. That loss and damage includes the relevant legal costs for the proceedings in Lebanon, ancillary legal fees paid to legal practitioners in Australia, other peripheral expenses e.g. travel between Australia and Lebanon, stress, and the loss of the deceased’s property in Lebanon.

34 At the very latest the damage or prejudicial effect of the first letter was first realised when the Lebanese court determined that the other uncle should have the property because he, not the plaintiff, was the proper beneficiary. The estate proceedings were the subject of judgment by the Lebanese court on 5 February 1998, more than seven and a half years before the commencement of these proceedings.

35 The date from which time runs for the purpose of the Limitation Act is, on the applicable principles, easily stated, but sometimes difficult to apply. The cause of action in negligence is not complete on the performance of the negligent act, but is complete when the plaintiff first suffers actual loss and damage: Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302 at [13]. For damage to be suffered, it must be more than contingent or inchoate: Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514; and must be substantial (other than nominal or ephemeral) or measurable: Scarcella, supra.

36 The fact, if it be the fact, that damage has not stabilised, or its full extent ascertained, is irrelevant to the limitation period, provided that some substantial damage has occurred: Wardman v Hatfield [2003] NSWCA 283.

37 In the current proceedings, damage of a substantial kind occurred, on the allegation of the plaintiff, when the Lebanese court judgment was issued i.e. on 5 February 1998. If, as the plaintiff alleges and must allege to succeed, the Lebanese court’s judgment was “caused” by the first letter, the proceeding in this Court, insofar as it relies on damage arising from the first letter, is out of time. This aspect does not affect the second letter.

Question (iii): Witness Immunity

38 The question as asked raises the issue of witness immunity, which is relied upon by the defendant. The plaintiff submits that neither of the two letters fall under the umbrella of absolute immunity under either Australian or Lebanese law. Frankly, the submission of the plaintiff misses the point. The plaintiff says:

“[44] The Plaintiff submits that neither of the Defendant[’s] two letters could fall under the umbrella of absolute immunity or to any claim for privilege either under Australian or Lebanese law.


Amongst the reasons why the letters do not qualify includes:

(i) no evidence in Villawood Nursing Home notes to suggest that Doctor Koleda had undertaken any medical or psychological assessment of the Deceased;


(ii) at no stage prior to suffering stroke on 9 November 1995 was the Deceased a patient of Doctor Koleda;


(iii) the Deceased did not speak English and would have had difficulties communicating with Doctor Koleda without Arabic language interpreter;


(iv) the Deceased was a diabetic and was being treated with insulin;


(v) neither of Doctor Koleda’s two letters was accompanied by any covering letter setting out the basis for his opinion;


(vi) neither of Doctor Koleda’s two letters suggested that the communication was privileged, claimed privilege, or claimed immunity;


(vii) neither of Doctor Koleda’s two letters contained any stamp or claim to confidentiality or prejudice;


(viii) nothing in Mr El Murad faxed letter to Doctor Koleda on 09/01/2001 suggests that any response by Doctor Koleda to the said letter would be covered by privilege let alone absolute privilege under Lebanese law;


(ix) neither of Doctor Koleda two letters, the content of which is wrong both medically and neurologically, would be covered by absolute privilege under Australian law;


(x) neither of Doctor Koleda two letter would come anywhere near satisfying the standard by the High Court in Roger v Whitaker (1992) 175 CLR 479.”

39 The plaintiff then refers to the duty of a medical practitioner to a patient to exercise reasonable care and skill in the provision of professional advice and refers to the duty including the provision of information. The plaintiff submits that the Court “should not lose sight” of a number of factors, which are described as “critical”, each of which refer to the importance of the letters in the Lebanese proceedings; the factual errors in the contents of the letters; the language difficulties as between the deceased and the defendant; and the like. The purpose of this submission is to argue that the defendant “fell short of an expected standard as a medical officer” and that “nothing that he would have said as a witness or written in report would have fallen under the umbrella of absolute privilege.” The plaintiff then submits that Dr Koleda should have taken certain steps and that “a prudent medical officer would not have written either … letter”.

40 Ultimately the plaintiff puts the concluding submission in the following terms:

“The Plaintiff submits that the Court would not have any hesitation in finding that in the circumstance that had transpired and the erroneous content of both of Dr Koleda’s letters that the Defendant[’s] claim to absolute privilege simply does not apply.”

41 As earlier stated, the submission misses the point. Whether Dr Koleda had available to him the option that evidence not be given, or whether Dr Koleda’s evidence was correct or incorrect, the issue raised by the question is whether, the letters having been written, the letter and their contents fell within the immunity granted to witnesses.

42 The principle is clear. A witness has absolute immunity for what is said or done in Court: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [39].

43 The rationale underpinning witness immunity is the same as that which grants immunity to jurors, judges and advocates. In D’Orta-Ekenaike, the High Court said:

“[31] In Giannarelli , Mason CJ said that ‘the barrister’s immunity, if it is to be sustained, must rest on considerations of public policy’. His Honour explained that the term ‘immunity’ was used in a sense which assumed that rights and duties might otherwise exist at common law, but the immunity is sustained on considerations of public policy and ‘the injury to the public interest that would arise in the absence of immunity’. Of the various factors advanced to justify the immunity, ‘the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings’ (emphasis added) was held to be determinative. The significance of the reference to the administration of justice is of fundamental importance to the proper understanding of the immunity and its foundation.

[32] To adopt the language found in the cases considering Ch III of the Constitution, the central concern of the exercise of judicial power is the quelling of controversies. Judicial power is exercised as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy in question, be they private persons, corporations, polities, or the community as personified in the Crown or represented by a Director of Public Prosecutions. No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy. And that is why reference to the ‘judicial branch of government’ is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed.

…

[34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.

[35] Principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called ‘fresh evidence rule’) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe : ‘[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial’.

…

[37] Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others - the judge, the witnesses, advocates - anyone other than the party whose case has been rejected.

…

[39] From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation :

‘The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them.’ (footnote omitted)


[40] The development of judicial immunity was more complex. It was bound up with the development of the law relating to excess of jurisdiction, and thus with the development of the principles governing when a judicial decision was open to collateral attack. Its history has been traced by Holdsworth. It is not necessary to examine that history in any detail, beyond noticing that the decisions of courts of record were conclusive, but those of inferior courts were open to collateral attack alleging excess of jurisdiction. Hence, while action might lie at common law for acts done in an inferior court in excess of jurisdiction, the decisions of supreme courts were final. And there was an immunity from suit for any judicial act done within jurisdiction. What is important to notice for present purposes is not the history of development of this immunity, but that both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of the finality of judgments.

…

[42] In R v Skinner , Lord Mansfield said that ‘neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office’. Of that immunity it has been said in Mann v O'Neill that it responds to two related considerations, ‘to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences’ and ‘the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment’ other than by appellate processes. That view of the matter reflects the consideration that what is at stake is the public interest in ‘the effective performance’ of its function by the judicial branch of government.” ( D’Orta-Ekenaike , per Gleeson CJ, Gummow, Hayne and Heydon JJ.)

44 Because the immunity is the same as that which grants immunity to jurors, judges and advocates in that capacity, all that a witness does in Court must be immune and all that is done by the witness out of court, which is so intimately connected with the evidence or the manner it is given, must also be immune: Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; Ollis v New South Wales Crime Commission [2007] NSWCA 311.

“But it does not matter whether the action is framed as an action for defamation or as an action analagous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice. The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court”: Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 per Starke J at 141.

45 The issue that arises, although it seems not from any submission of the plaintiff, is whether the immunity of a witness applies to evidence “prepared, provided or adduced” for proceedings overseas. While the High Court has injuncted trial judges from extending the immunity beyond that which has been clearly adumbrated, this is a question that does not require the extension, by analogy or otherwise, of the immunity, but rather requires a determination of the limits, if any, of the immunity.

46 “The advancement of public justice” or “considerations of public policy” and the finality of judicial proceedings are not matters that are confined to proceedings in New South Wales, nor in Australia. As a matter of strict theory, if the witness immunity applies to proceedings in another state or jurisdiction, then there is no obvious reason why it does not apply to proceedings in the United Kingdom, the United States or, in this case, Lebanon.

47 The principles and policy of the Court in dealing with the enforcement of foreign judgments confirms that approach. Different issues may arise if there were an allegation of fraud or a procedure so antithetical to the process of judicial proceedings in this State that a court formed the opinion that the proceedings were not of a kind that would be recognised as appropriate for the application of the immunity. But in Australia the immunity has been applied to proceedings beyond proceedings for the exercise of judicial power, and, with respect, properly so: see, inter alia, Pollock v Waterhouse [1999] NSWSC 1053, per Levine J applying the privilege to proceedings before the Thoroughbred Racing Board. No submission is made in these proceedings that it is inappropriate for the immunity to apply to the courts in Lebanon, by virtue of any deficiency in the process in Lebanon or because of the status of those courts.

48 On any analysis, the two letters here in question are letters which would fall within the immunity of a witness and the preparation of them would fall within the immunity of the witness: see, inter alia, Meadow v General Medical Council [2007] QB 462 at [12].

Conclusions

49 For the foregoing reasons, the questions have been answered in the manner sought by the defendant. The defendant, in his motion, seeks further orders relating to the dismissal of the whole of the proceedings on the basis of the answers to the questions. Little or no attention has been paid by the parties as to the appropriateness or otherwise of that course. I am mindful, for example, that the statement of claim does not rely solely on negligence, but alleges (about which I now make no comment) deliberate conduct on the part of the defendant: see [24] of the statement of claim.

50 As a consequence, I will leave to another date any orders consequential upon the answering of these questions.

51 The Court makes the following orders:

(1) Pursuant to Rule 28.3 of the Uniform Civil Procedure Rules 2005, the Court answers the following three questions separately from any other question and in the following manner:

(i) Did the defendant owe the plaintiff a duty of care in respect of the allegations of negligence pleaded in paragraphs 14 and 23 of the statement of claim?
Answer: No.

(ii) Is the allegation of negligence pleaded in paragraph 14 of the statement of claim time-barred due to the operation of the Limitation Act 1969 (NSW)?
Answer: Yes.


(iii) Does an immunity from suit operate in favour of the defendant in respect of the allegations of negligence in paragraphs 14 and 23 of the statement of claim such as to preclude such liability as is alleged against the defendant based upon those paragraphs?
Answer: Yes.


(2) Liberty is granted to the parties to apply for any consequential order.

(3) Liberty is granted to the parties to apply to the Court, as presently constituted, in relation to the costs of this motion. Such application may be made by filing and serving a submission within 14 days of these orders and a response thereto may be filed and served within a further 7 days.

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