Colefax v Hojaij

Case [2021] QDC 324

DISTRICT COURT OF QUEENSLAND

CITATION:

Colefax v Hojaij [2021] QDC 324

PARTIES:

ROBERT FOSTER COLEFAX

(appellant)

v

CARLOS ROBERTO HOJAIJ   
(respondent)

FILE NO:

Appeal No 80 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

14 December 2021

DELIVERED AT:

Cairns

HEARING DATE:

6 September 2021

JUDGE:

Morzone QC DCJ

ORDER:

1.   Appeal dismissed.

2.   Unless either party applies for, or the parties otherwise agree to, a different costs order within 30 days of this judgment, the appellant will pay the costs of the respondent of the appeal to be assessed on the standard basis.

CATCHWORDS:

APPEAL – SUMMARY JUDGMENT – DUTY OF CARE – where claim by a professional engineer against an assessing psychiatrist for lost income after a flawed psychiatric assessment as to his capacity to practice - whether the respondent psychiatrist owed a duty of care to the appellant/plaintiff professional engineer in conducting the health assessment pursuant to section 35E of the Professional Engineers Act 2002 (Qld).

LEGISLATION:

District Court of Queensland Act 1967 (Qld) s 113
Magistrates Courts Act 1921 (Qld) ss 45 & 47
Professional Engineers Act 2002 (Qld) ss 35E, 35F, 35G, 35H & 35I

Uniform Civil Procedure Rules 1999 (Qld) r 293, 765(1) & 785

CASES:

Allesch v Maunz (2000) 203 CLR 172
AR v New South Wales [2011] NSWSC 94
Beach Club for Port Douglas v Page [2005] QCA 475
Brodie v Singleton Shire Council (2001) 206 CLR 512
Commonwealth of Australia v Griffiths [2007] NSWCA 370
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Fox v Percy (2003) 214 CLR 118
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Jaensch v Coffey (1984) 155 CLR 549
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Potter v Minahan (1908) 7 CLR 277
South Australia v Lampard-Trevorrow [2010] 106 SASR 331
Sullivan v Moody [2001] CLR 562 at [44].
Tame v New South Wales (2002) 211 CLR 317
Warren v Coombes (1979) 142 CLR 531
COUNSEL:

J Jacobs for the Appellant
DLK Atkinson QC for the Respondent

SOLICITORS:

WGC Lawyers for the Appellant
Avant Mutual for the Respondent

Summary

  1. The appellant, a professional engineer who lost income after a flawed psychiatric assessment as to his capacity to practice, now appeals the summary judgment of the Magistrates Court in Cairns made on 11 May 2021.  The court awarded judgment to the respondent/defendant having been satisfied that the appellant/plaintiff had no real prospects of succeeding in negligence because the respondent psychiatrist did not owe a duty of care to the appellant, and there was no need for any trial.

  2. The grounds can be distilled into the determinative question as to whether the respondent psychiatrist owed a duty of care to the appellant/plaintiff professional engineer in conducting the health assessment pursuant to section 35E of the Professional Engineers Act 2002 (Qld).

  3. The appellant contends that the respondent did owe…

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Details
AGLC
Colefax v Hojaij [2021] QDC 324
Case
[2021] QDC 324
Decision Date

CaseChat Overview and Summary

The Court of Appeal was asked to determine whether the respondent psychiatrist owed a duty of care to the appellant engineer, who had lost his income due to a flawed psychiatric assessment that led to the cancellation of his registration to practise as a professional engineer in Queensland. The appellant had sought damages for the loss of income, alleging negligence on the part of the psychiatrist who conducted the health assessment. The respondent argued that he did not owe the appellant any duty of care and that the assessment had been conducted with reasonable care and skill.

The Court of Appeal held that there was no duty of care owed by the psychiatrist to the appellant engineer in conducting the health assessment. The Court found that the statutory framework for the regulation of professional engineers did not create a relationship of sufficient proximity between the appellant and the respondent to give rise to a duty of care. The Court concluded that the statutory requirements did not impose a duty of care on the psychiatrist to avoid causing the appellant's loss of income. The Court also held that the respondent's conduct did not fall below the standard of care that could be expected of a competent psychiatrist. Therefore, the appellant's cause of action for damages for the loss of income was doomed to fail.

The Court of Appeal dismissed the appeal and affirmed the summary judgment of the Magistrates Court. The Court held that there was no identifiable error in the decision of the Magistrate and that a trial was unnecessary. The Court ordered that unless either party applied for, or the parties otherwise agreed to, a different costs order within 30 days of the judgment, the appellant would pay the costs of the respondent of the appeal to be assessed on the standard basis. The Court held that the respondent psychiatrist did not owe a duty of care to the appellant engineer in conducting the health assessment and that the statutory framework for the regulation of professional engineers did not create a relationship of sufficient proximity to give rise to a duty of care.

Orders

Orders of the court

1. Appeal dismissed.

2. Unless either party applies for, or the parties otherwise agree to, a different costs order within 30 days of this judgment, the appellant will pay the costs of the respondent of the appeal to be assessed on the standard basis.

Background

Background to the litigation

Pursuant to s 47 of the Magistrates Courts Act 1921 (Qld), on the hearing of the appeal this court may:(a)draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed; 
(b)order a new trial on such terms as it thinks just; 
(c)order judgment to be entered for any party; 
(d)make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties; 
(e)as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon; (f)make such order with respect to the costs of the appeal or special case as it thinks proper.Background The appellant practised as a professional engineer from 1972. He was a registered professional engineer in Queensland from about 1977. In or about 2016, a complaint was made to the Board of Professional Engineers of Queensland about the appellant’s capacity. And the appellant expresses some personal insight into his mental state evidenced in a note made on 15 June 2016. On 23 March 2017 the Board required the appellant to undergo a health assessment to determine his fitness to practise pursuant to s 35E of the Act. The Board appointed the respondent psychiatrist to assess whether the appellant “is currently unable to competently and safely practise as a registered professional engineer”. The respondent was made aware that the appellant had rights of review, and that the assessment report was not admissible in any proceeding except concerning registration. The health assessment was carried out by the respondent with the full co-operation of the appellant between April and June 2017. In reliance on the resultant assessment report which? was delivered on 18 June 2017, the Board cancelled the appellant’s registration to practise as a professional engineer in the State of Queensland on 7 August 2017. Consequently, the appellant ceased practise and his income was foregone. The appellant challenged the findings, obtained an expert opinion and applied to review the Board’s decision to the Queensland Civil and Administrative Tribunal on 28 August 2017. In the result, QCAT stayed the Board’s decision on 29 November 2017 and the Board subsequently repealed its decision entirely on 9 June 2018. In August 2018, the appellant complained about the respondent to the Office of the Health Ombudsman, which led to an investigation by the Medical Board of Australia of the respondent’s assessment. After investigation the Medical Board found that the respondent’s practice in relation to the appellant had been unsatisfactory because the testing was “inadequate and inappropriate as such testing is in the domain of Neuropsychologists who have the relevant experience to complete such testing”. The? Medical Board imposed conditions on the respondent’s registration requiring him to undergo education, mentoring and auditing. In December 2020, the then self-represented appellant sued the respondent by claim and statement of claim in the Magistrates Court of Cairns for the loss of income incurred as a result of the respondent’s negligent health assessment between April and June 2017, which led to the cancellation of the appellant’s registration to practise as a professional engineer. The respondent defended the proceeding on the grounds that he did not owe the appellant any duty of care in conducting the health assessment, and that the health assessment had been conducted with the “reasonable care and skill of a competent psychiatrist”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This is one of the rare cases where a finding of a duty of care would so cut across competing legal principles as to impair their proper application, and I am bound to conclude that there is no duty of care of the kind asserted by the appellant. Therefore, the appellant does not have a viable cause of action absent a duty to take reasonable care to avoid causing his loss of income. The appellant’s cause of action is doomed to fail, and a trial is unnecessary.Conclusion For these reasons, in my respectful view, I am not satisfied that the learned magistrate erred in reaching the decision. In the absence of any identifiable error, I affirm the summary judgment of the Magistrates Court in Cairns made on 11 May 2021 and dismiss the appeal. Unless either party applies for, or the parties otherwise agree to, a different costs order within 30 days of this judgment, the appellant will pay the costs of the respondent of the appeal to be assessed on the standard basis.

Ratio Decidendi

Legal Principle Established

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