Idameneo Pty Limited v Singh

[2016] NSWSC 841

Supreme Court

New South Wales

Medium Neutral Citation:	Idameneo Pty Limited v Singh [2016] NSWSC 841
Hearing dates:	26 August 2015
Date of orders:	23 June 2016
Decision date:	23 June 2016
Jurisdiction:	Common Law
Before:	RS Hulme AJ
Decision:	Find damages in the sum of $123,750 Direct the Plaintiff to specify its claim for interest on that sum Stand the proceedings over for supplementary submissions and judgment
Catchwords:	Contracts – breach – damages – medical practitioner and medical centre – claim for lost profits – no evidence income reduced
Cases Cited:	Idameneo (No. 123) Pty Limited v Fox (No. 2) [2014] NSWDC 209
Category:	Principal judgment
Parties:	Idameneo Pty Limited (Plaintiff) Dr Singh (First Defendant) Multicare Family Health Clinic (2002) Pty Ltd
Representation:	Counsel: Mr SE Gray (ex parte) Solicitors: Keypoint Law
File Number(s):	2014/301792
Publication restriction:	No

Judgment

1. By Statement of Claim filed on 14 October 2014 Idameneo (No 123) Pty Ltd sued Dr Raghubir Singh and Multicare Family Health Clinic (2002) Pty Ltd for damages. No defence was filed and on 18 March 2015 judgment was ordered for damages to be assessed. These reasons are concerned with the assessment of such damages.

2. It will be convenient to refer to the parties mentioned as “Idameneo”, “Dr Singh” and “Multicare”.

3. Idameneo is a company that operates medical centres from which medical practitioners, including but not limited to General Practitioners, render their services. Idameneo provides the premises, staff and other ancillary services. It provides accounting services and collects and banks all fees payable to the health practitioners for the services they render to patients.

4. Dr Singh is a former medical practitioner who sold his practice to the Plaintiff, Idameneo). In accordance with the Sale of Practice Deed (executed in 2004 but not provided to the Court), he agreed to render medical services to patients from medical centres operated by Idameneo.

5. The bases for Idameneo’s claim are three deeds. One, called the Amending Deed, recited that under an earlier Deed and an “Old Practitioner Contract” Dr Singh had agreed to sell his practice to the Plaintiff and then practice exclusively in premises made available by the Plaintiff at Ingleburn and Campbelltown, that the parties had agreed that the term of the “Old Practitioner Contract” should be extended by 10 years, and varied the obligations of the parties earlier imposed. The Amending Deed also provided for the payment to Multicare of $165,000 for-

1. The extension of the term of the Practitioner Contract from 2 November 2011 until 1 November 2021; and

2. The extension of the term of restraints, effected under Clause 6.2(b).

6. In short, the restraints referred to were from competing with Idameneo.

7. In the Amending Deed Multicare agreed that it would procure Dr Singh to:-

1. Render medical services from the Plaintiff’s Ingleburn and Campbelltown premises until at least 1 November 2021;

2. Render those services for no less than 50 hours per week for 48 weeks per financial year, the 50 hours including:

1. Monday 7am to 1pm at Ingleburn Premises, 2pm to 6pm at the Campbelltown Premises; and

2. Tuesday 7am to 1pm at Ingleburn Premises, 2pm to 6pm at the Campbelltown Premises; and

3. Thursday 7am to 1pm at Ingleburn Premises, 2pm to 6pm at the Campbelltown Premises; and

4. Sunday 8am to 4pm; and

5. One half of the Christmas and New Year period special roster (5 days on, 5 days off); and

6. An equal share of other public holiday period special rosters along with the other practitioners.

8. Dr Singh was not required to work after 6pm. No provision was made in case of illness, family emergencies, or any other event that might prevent the Defendant from completing the required hours.

9. Under the Amending Deed, Dr Singh guaranteed to Idameneo the performance and observance by Multicare of its obligations under the Deed.

10. Under a second Deed entitled “Performance Guarantee”, Dr Singh undertook to procure that Multicare carried out the terms imposed on Multicare under the third deed, entitled Services Deed

11. Under the Services Deed, Idameneo agreed to provide to specified premises at Ingleburn and Campbelltown “such administrative services, clerical staff, facilities, plant and equipment as are in the opinion of the Company necessary for” Multicare to conduct its incorporated medical practice from the premises. Multicare authorised Idameneo to render on behalf of Dr Singh and itself, accounts in respect of all medical services rendered by Dr Singh and to bank such moneys to an account it controlled and agreed to pay to Idameneo 50% of all moneys so banked and referable to medical services rendered by Dr Singh. There were supplementary provisions directed to the same end, viz. that Idameneo received 50% of moneys paid for Dr Singh’s medical services.

12. Dr Singh commenced rendering medical services on or about 29 September 2011 and last rendered such services on 27 May 2014. During this period, according to some evidence from the Plaintiff, he rendered services for a total of only 5,770.10hours. It appears from the Plaintiff’s records that Dr Singh rendered services mainly at the Ingleburn Centre, occasionally at the Plaintiff’s Fairfield Centre but never at the Campbelltown Centre. It was not suggested that anything turned on this departure from the contractual provisions.

13. In paragraph 11 of the Statement of Claim it is said that on or before 14 July 2014 the Medical Board of Australia suspended the registration of Dr Singh to render medical services in Australia. In paragraph 13 of that document it is said that on 14 July 2014 Idameneo terminated the Amending Deed and Services Deed or alternatively accepted the Defendant’s repudiation of the three deeds. The absence of any Defence means that these assertions are deemed to be admitted. The Statement of Claim went on to claim $1,895,535.56 for the lost profits that the Plaintiff claims it would have received had the Defendants complied with the terms of the three deeds.

14. In support of the Plaintiff’s claim a number of Affidavits were read. In the main the deponents were experienced employees of Idameneo who provided details of Idameneo’s business practices and its record keeping, largely via medium of computer programs.

15. One of these programs was called “Medtech”. The Plaintiff’s method of operations involved the following.

When a patient arrived at the front desk of a Medical Centre and sought to see a doctor, the patient’s details were obtained, entered into Medtech and a paper voucher was produced.

In the ordinary course the patient would take a seat in the waiting room. The voucher would be placed at the bottom of a pile of vouchers relating to patients who had arrived earlier. Notification of the patient’s arrival was recorded on Medtech and thereby doctors in the Centre were so advised

Doctors desirous of seeing a patient were required to take a voucher from the top of the pile. They then called out the patient’s name once or twice and, assuming the patient had not left, then had a consultation with the patient. If the patient did not respond to the call the doctor placed the voucher in a “Did not wait” pile and took another voucher from the top of the main pile.

During a consultation the doctor recorded on Medtech the name of the patient and was thereby provided with any history previously recorded. During or immediately after the consultation the doctor recorded in Medtech notes of the consultation, including referrals and the like. As an incident of this activity the identification of the doctor having the consultation was also recorded.

Medtech was then used to enable Idameneo to send an account to Medicare for the consultation and, in the ordinary course record payment of such account.

16. Included in the information recorded in or by Medtech, was the time a doctor at one of the Plaintiff’s centres first logged into Medtech on any day and the time the doctor finished using the program on that day. The program also seems to have recorded the first time on any day a doctor closed a patient’s notes on that day or first moved from the patient’s notes to another screen and also the last time the doctor closed a patient’s notes or moved to another screen.

17. In his affidavit Mr Brewer said that the hours Dr Singh worked had been calculated from the first time Dr Singh closed a patient’s notes or moved to a second screen until the last time on the same day he performed these actions. Mr Brewer also said that a table, entitled “Hours Report” and exhibited to his affidavit recorded the times that Dr Singh first logged into Medtech and finished using Medtech each day.

18. It does not seem to me that entries reflecting the methodology adverted to in the two immediately preceding paragraphs will necessarily be the same. For example, it seems to me that logging-in and making a first patient entry may well occur at different times. The times may not be far apart but given that the hours worked are recorded in hundredths of an hour there is clearly a potential for error over a period of nearly 3 years.

19. The Plaintiff’s claim has been formulated on the basis of the log in and log out information. However no deduction has been made for coffee or toilet stops and in the result it seems to me appropriate to act upon the basis that hours worked by Dr Singh are as calculated by the Plaintiff.

20. Among the records kept by staff at each medical centre are “wait times”. These are determined by the Practice Manager at each centre by 4 times a day noting from Medtech when a patient selected at random reported to the front desk and when that patient was first seen by a GP and calculating the period in between. The 4 times a day are not set but may be inferred from the descriptions “Morning Wait”, “Lunch Wait”, “Afternoon Wait” and “Evening Wait”.

21. A record is kept also of the patients who did not wait, i.e. those whose details were recorded at the front desk but who did not see a general practitioner on the day, and presumably did not answer when their name was called. There was evidence that there were others – Mr Brewer said that he had seen over 100, presumably during the 7 years he said has been reviewing monthly Profit and Loss reports - who on being told of the waiting time chose not to give their details at the front desk. The evidence showed there were others who, being given such information over the phone, chose not to attend.

22. Another employee Ms Fiona Ward said that she saw instances of such occurrences on almost every occasion she was at a Medical Centre.

23. An alternate way of determining those who did not wait was by counting the vouchers in the “Did not Wait” pile.

24. Dr Houston who described himself as the Chief Clinical Officer for Idameneo’s medical centres deposed to having worked at medical centres and said that he had regularly and consistently observed that:

1. Where a new GP starts the patient numbers at that practice increase, and

2. When a GP leaves or works for less than the contracted hours, patient waiting times increase, the patient numbers inevitably drop because patients who come do not get service promptly and therefore do not return. In this regard, I have regularly and consistently observed that if a patient forms the view that they will not see a GP within a sufficient amount of time (which varies from person to person) the patient will either:

(a)   Not wait to be seen; or

(b)   Will not even give their details (at the front desk in order to be placed in a queue); or

(c)   not return for subsequent treatment.

25. In his affidavit, Dr Houston deposed to the Ingleburn Centre having 27 rooms available for use by General Practitioners and 2 of those rooms being currently free and that the Campbelltown Centre had 19 rooms similarly available for use of which 3 were currently free.

26. Ms Ward deposed to having been or acting in a role which approximated Chief Operating Officer from May 2012 until the date of her affidavit namely 7 May 2015 and having previously occupied positions from which one might infer she had a sound knowledge of Idameneo’s system of operations. She deposed to Idameneo conducting many medical centres besides those at Ingleburn and Campbelltown. She said that during the 2011 to 2015 period the maximum number of general practitioner working at the one time at Ingleburn was 21 and the maximum number working at the one time at Campbelltown was 18.

27. Ms Ward said that “the Ingleburn Centre and the Campbelltown Centre were both never able to be completely filled with a number of GPs such that they both always had the ability to have more GPs rendering medical services from them”.

28. Mr Brewer, who said that he was the Chief Financial Officer of the Medical Centres Division of Primary Health Care Limited of which Idameneo is a subsidiary, said that Idameneo had the capacity to fit several hundred extra GPs in its current Centre infrastructure. He said that Idameneo does not operate small scale medical centres and if it decides to open a Centre it endeavours to ensure that there are approximately 8 to 10 GPs rendering medical services from the Centre from the first day and then to recruit as many additional GPs as it can and place them at the new Centre.

29. Mr Brewer deposed to centres such as the Ingleburn, Fairfield and Campbelltown Medical Centres operating on a first available patient system whereby the general practitioners there were required to see patients in the order of their arrival at the Centre. He added that the three centres were purely bulk billing practices that required no co-payments from patients.

30. It may be that Mr Brewer’s remarks need some qualification because Ms Ward deposed to patients being able to wait to see a GP of their choice. There was no evidence of how frequently this occurred.

31. Mr Brewer also referred to a Practice Incentive Program run by Medicare Australia whereby that organisation makes grants to general practitioner and to the Plaintiff’s entitlement to 50% of any such payments to Dr Singh. However in the formulation of its claim, the Plaintiff’s has not sought a share of any money paid or payable under this program so I need not consider it further.

32. Mr Brewer deposed that on a monthly basis for the last 7 years he has reviewed approximately 70 profit and loss statements for the Centres conducted by Idameneo and based on his reviews he is able to say:

1. When more GPs render medical services from a Centre, more patients attend that Centre and more medical services are rendered from that Centre. Thus within approximately 3 months of a GP commencing at a Centre, I ordinarily see a Centre’s Earnings Before Interest Tax Depreciation and Amortisation margin increase and the profit at the Centre increase.

2. The busiest Centres operated by Idameneo in the sense of the greatest number of patients being seen by GPs are those Centres with the greatest number of GPs. That is, the more GPs the greater the number of patients and patient visits and the greater the number of medical services being rendered by each GP within a Centre.

3. What makes Idameneo’s business model really successful is getting 15-25 GPs to render medical services from an individual Centre.

4. The profitability of an individual Centre is maximised when additional service providers (such as dentists, specialists, pharmacists and x-ray service providers) also render services from the same Centre as this further increases patient numbers.

33. Annexed to Mr Brewer’s affidavit was a bundle of documents being business records of Idameneo.

34. Also read on behalf of the Plaintiff was an Affidavit and exhibited report of a Mr Gower, chartered accountant. Based on the information in the records exhibited by Mr Brewer, Mr Gower opined that the Plaintiff’s loss of profit as a result of Dr Singh’s failure to conform to his contractual obligations was $1,114,157, a sum which was said to represent the present value of the loss as at 29 September 2011.

35. The first component in Mr Gower’s calculations was described as “Additional Service Fees”. These were calculated upon the basis that Dr Singh should have worked 2400 hours per full year until 1 November 2021, from which figure was deducted the hours he actually did work and multiplying the difference by a variety of hourly rates. For the 2012 to 2014 financial years Mr Gower has adopted the hourly rates at which Dr Singh did, by calculation from the Plaintiff’s records, actually work in those years. For the 2015 financial year, Mr Gower used Dr Singh’s average hourly rate from 29 September 2011 onwards and for the 2016 to 2022 financial years, Mr Gower increased the 2015 figure by 2% per annum in order to make an allowance for increases in hourly rates over time. Mr Gower opined that 2% was an appropriate estimate of an increase.

36. I am satisfied that the average hourly rates at which Dr Singh did work during the 2012 to 2014 years amounted to $209, $198, and $205 respectively and that the adoption of the average of these figures for the 2015 year was a reasonable estimate in an attempt to calculate what Dr Singh would have earned had the Defendants continued to perform their contractual obligations.

37. Although one cannot be unconscious of a deal of publicity given to complaints that the Government has not increased the bulk billing fee, having regard to general rates of inflation, it seems to me that the 2% is a reasonable allowance to make for years after 2015.

38. To take account of the 50% service fee recorded in the Services Deed, Mr Gower then divided the resulting figure by 2.

39. The next step in Mr Gower’s calculations was to subtract amounts on account of Medical Supplies and other expenses, describing the balance as “Loss of profit before discounting”. The figure for medical supplies was derived as a percentage based on the total outlay for those supplies for all general practitioners at the Ingleburn Centre in the years to 20 June 2012, 2013, 2014 and 2015 and the total Medical Service Fees earned by those practitioners. The result for the years ended 30 June 2012 and 2013 was 0.9% and the result for the years ended 30 June 2014 and 2015 was 1.2%. For later years Mr Gower used the figure of 1.2%

40. The deducting on account of other expenses reflected a number of opinions of Mr Gower, viz:-

1. That savings in expenses should be taken into account in the calculation of the Plaintiff’s loss of profit;

2. Because Dr Singh was only one of a number of doctors working at the Medical Centres many of the total costs would be incurred by Idameneo whether or not Dr Singh provided the required number of hours; Such costs included property costs, staff costs and abase level of communications costs and information technology costs, and

3. It would be prudent to make some allowance for some savings in expenses, e.g. the variable component of communications and information technology costs: A prudent allowance was 5% of the additional fees Dr Singh would have earned had he worked in conformity with the contracts.

41. These seem to me reasonable assumptions to make in attempting to estimate the Plaintiff’s loss of profit. Certainly, they are not unfair to the Defendants.

42. To the figures so arrived at Mr Gower applied a discount rate of 9% in order to assess the value of the Plaintiff’s loss as at 1 November 2011. A discount is appropriate and again I do not regard the 9% as unfair to the Defendants.

43. However there is one assumption in Mr Gower’ calculations that bears further consideration. It is that Medical Centre gross billings were less by the gross amount Dr Singh would have earned had he continued working in the practice.

44. In fact – and I regard this as a very significant omission - the Plaintiff has not placed any evidence before me that billings at any Centre where Dr Singh practiced or, under the Deeds might have practiced, reduced after Dr Singh left. Given the record system which it had, the Plaintiff cannot have been ignorant of what those billings were.

41. Nor has the Plaintiff adduced evidence that Dr Singh was not replaced or, if that occurred, when. Ms Ward said that the Ingleburn and Campbelltown Centres were both never able to be completely filled with a number of general practitioners such that both always had the ability to have more GPs rendering medical services from them. Dr Brewer’s evidence that Idameneo had the capacity to fit several hundred extra GPs in its current Centre infrastructure suggests that it may build or develop Centres that have the capacity to expand their services and I am not able to infer from Ms Ward’s evidence, including that there were spare rooms, that Dr Singh’s departure meant that the Plaintiff could not look after the number of available patients. There are many factors beside the number of doctors that are calculated to affect the number of patients attending a Medical Centre.

42. So far as patients attending at a Centre and waiting until they could be seen are concerned, providing such persons were seen by some doctor, the Plaintiff will have suffered no loss of income on that day in consequence of Dr Singh’s absence. The “Did not Wait” patients and others who may have phoned and not attended or looked into the waiting room and left without providing their details do represent a loss of income but the former were generally small in number and, as might be expected, there is limited information as to the numbers of the latter.

43. (In the first sentence of the immediately preceding paragraph there is an assumption that the length of the consultations, and the fee charged, would not have varied because of any doctor who was seen in lieu of Dr Singh. There is no evidence which enables any conclusion to be reached on that issue.)

44. Other features of the “Did not Wait” table exhibited to Mr Brewer’s affidavit may also be noted. Particularly at Campbelltown there tends to be a higher number of “Did not Wait” patients on those days when, during at least one of the sampling times, there were long waiting periods. That is only to be expected as is the fact that the correlation is not perfect. Furthermore, at both Campbelltown and Ingleburn there are substantially more long waiting times, say in excess of an hour, in the evenings than at other times of the day. In combination these features, and a consideration of the waiting times earlier in the day, suggest that most of the “Did not Wait” patients probably were evening or night time patients, i.e. after 6pm - a time when Dr Singh was not required to work.

45. There is no evidence that the number of doctors actually working or the hours they worked was, subject to his absence, the same before Dr Singh ceased as afterwards. Nor does there seem to have been any significant increase in the number of “Did not Wait” patients following his departure. The numbers on the bottom of some of the pages have been obscured by the pagination but with that reservation the numbers for many of the months in 2014 were as follows. (A “+” sign indicates a figure affected by the obscurity mentioned):-

Campbelltown      Ingleburn

March      120+            196

April      88            193+

May       158            192

June       152            180+

July       205+            122

August    158            232+

September    152            182

50. The frequency of very short waiting times – say 1 or 3 minutes - suggests that there were many period at least during the day when there were doctors present who had no patients. The Plaintiff’s system described above necessarily means that some time is likely to pass between a patient’s details being recorded at the front desk and a doctor making an entry in Medtech in respect of that patient. On the assumption that doctors not actively engaged in a consultation do not hang around the front desk ready to grab a voucher immediately it is produced, and do not run to their room to make an almost immediate entry into Medtech, one would expect some time to elapse between an unoccupied doctor becoming aware that there was an available patient, walking to the waiting room, calling out that patient’s name, receiving a response, walking with the patient from the waiting room to a consultation room, possibly shaking hands, and then sitting down and making an entry in Medtech.

51. It is a reasonable inference that many of the shorter waiting times in the exhibit reflect these activities and are an indication that not all the doctors at the Centres were actually consulting at those times.

52. I have set out some extracts from the affidavits of Dr Houston. I find it difficult or impossible to accept a deal of what he said. An example is his statement that “Where a new GP starts the patient number at that practice increase”.

53. Dr Houston does not identify any period over which the suggested change occurs or identify any factors, other than by inference waiting times, that may lead to the change. One of Mr Brewer’s statements referring to “ordinarily” seeing a Centre’s earnings and profit increase within 3 months of a GP commencing at a Centre may give some guide although neither Dr Houston nor Mr Brewer provided any evidence as to the rate or extent of the increase.

54. However, general experience indicates that the general public, or the public in a particular area will very probably have no knowledge of the presence of an additional doctor at a Medical Centre until they have visited the Centre and been in a consultation with him or noticed an appreciable reduction in waiting times. In that latter connection it is to be observed that the figures for waiting times provided in the evidence vary greatly so in themselves can provide no evidence of the presence or absence of a doctor or a change in doctor numbers. Members of the public may of course see a new doctor’s name on a board listing doctors working at the Centre or on duty at a particular time but one suspects this will be of no consequence or not remembered unless there is some particular reason to remember the particular doctor’s name. Of course information may be received from someone else but as a general proposition I doubt that the presence of an additional doctor would have any impact on patient numbers except in the long, or possibly medium, term.

55. Furthermore, as I have said, there must be many factors that influence the number of patients attending a Medical Centre at any particular time – changes in population, epidemics such as influenza, and changes in seasons. And while the departure of a doctor may have a tendency to increase waiting times, much will depend on whether other doctors working or able to work at a Centre are otherwise fully employed or willing to work additional hours at a relevant time.

56. The table of waiting times exhibited to the affidavit of Mr Brewer shows how variable waiting times are. I have no difficulty in accepting that there will be a tendency, as Mr Houston said, “when a GP leaves or works for less than the contracted hours, patient waiting times increase”. However I do not accept that “patient numbers inevitably drop”. The Plaintiff has not adduced any evidence that that occurred when Dr Singh departed and the waiting times were so variable both before and after Dr Singh left that it is impossible to say that his departure had, or would have had, any significant impact in that respect.

57. (As a check against my impression derived from the table of waiting times, I have added up the minutes of waiting times for the Morning Wait, Lunch Wait and Afternoon Wait periods for the first 27 days in each of the months of March to August 2014 for the Ingleburn Centre. The results are tabulated below. I have taken 27 days because that is the period during May for which Dr Singh worked. I have also ignored the “hours” included in waiting periods. Doing so may be conducive to error but I find it impossible to believe that people waited for 12 hours plus on, for example, 20 and 21 April or 28 June 2014

Morning   Lunch      Afternoon

March      249      306      304

April      298      441      433

May      261      411      358

June      307      563      380

July      203      287      316

August      407      324      486)

58. I do not regard Mr Brewer’s remarks that I have quoted as sub-paragraphs (3) and (4) of [32] as of present relevance. I should however say more about sub-paragraph (1) and (2). I expect that good business practice would inspire Idameneo to seek to locate its Centres, determine their size and the number of doctors it located there where it perceived patient demand and possibly the greatest patient demand to be. Logic indicates that Idameneo will seek to match GPs with demand and thus it is logical that the Centres with the greatest number of patients being seen by GPs are those centres with the greatest number of GPs. That says nothing about cause and effect.

59. While I accept that the better the service that Idameneo was able to offer its patients at any Centre, the greater was the likelihood of an increase in the number of patients, I cannot accept that a simple change in the number of GPs is likely to result in a change in the number of patients unless there is a significant reduction in wait times. There will be other limiting factors such as geographical location and the availability of public transport or other matters that might be regarded as defining “the market”. The personality or apparent competence or racial background of any new doctor may well have significance. Nor can I accept that “the more GPs, … the greater the number of medical services being rendered by each GP within a Centre”. Indeed the reverse strikes me as more likely unless patient number increase by a greater proportion than any increase in the number of GPs. I am unable to see any rational basis for that occurring.

60. Nor does it seem to me that the existence of vacant rooms at the Medical Centres where Dr Singh was required to work is of itself of any significance. There are a wide variety of reasons why there might be such rooms, including contemplation by the Plaintiff of a need to expand in the future or an overestimate at the time the Centre was established of the likely number of patient visits - a view which is not weakened by Mr Brewer’s evidence that Idameneo has the capacity to fit several hundred extra GPs in its current Centre infrastructure.

61. I do not ignore Ms Ward’s statement, following her reference to the number of rooms and GPs at the Centres that the Ingleburn and Campbelltown Centres were never able to be completely filled with a number of GPs such that both always had the ability to have more GPs rendering medical services from them. While that statement is consistent with a desire or attempts on the part of the Plaintiff to increase the number of GPs at those centres, presumably in anticipation of greater billings, it does not establish that greater billings would have eventuated or provide any indication of what they might have been.

62. I am conscious that the evidence adduced on behalf of the Plaintiff has not been challenged or contradicted. However, it does not follow that I am obliged to accept it when it seems to me improbable or evidence with the potential to be inherently more persuasive must have been available and was not adduced. As I have said, the Plaintiff has not adduced any evidence that following Dr Singh’s departure, or in consequence of him working shorter than contractual hours when he was there, its billings or the number of patients reduced. Nor has the Plaintiff shown that there was any significant change in waiting time or patients who “did not wait” or that any reduction in those times that was likely to have resulted from Dr Singh’s presence was significant. While difficulty in assessing damages is not a reason for not doing so, the onus lies on the Plaintiff to prove its loss.

63. In short, I am not persuaded by any of the arguments advanced on behalf of the Plaintiff or by the evidence of the three Idameneo employees that the Plaintiff has suffered any loss in consequence of the Defendants failing to render medical services in accordance with the deeds forming the bases of the Plaintiff’s claim.

64. However although this was not advanced by counsel appearing for the Plaintiff, it does seem to me that the Plaintiff is entitled to some damages. It paid Dr Singh $165,000 for, as has been said:-

1. The extension of the term of the Practitioner Contract from 2 November 2011 until 1 November 2021; and

2. The extension of the term of restraints, effected under Clause 6.2(b).

65. In working only until 27 May 2014, Dr Singh fulfilled only a little over 25% of the term he promised. The restraints referred to lasted a little longer, until 14 July 2014 when the deeds were terminated or Dr Singh’s repudiation was accepted. It is not possible to assign a relative value to one of the benefits the Plaintiff received for its $165,000 compared with the other benefit. Effectively the Plaintiff lost about 75% of the benefits for which it paid Multicare. In these circumstances the Plaintiff is entitled to damages in the sum of 75% of $165,000, viz $123,750.

66. In concluding as I have, I am not unconscious of disagreeing with the approach taken by Neilson DCJ in Idameneo (No. 123) Pty Limited v Fox (No. 2) [2014] NSWDC 209 on somewhat similar evidence. However, the decision in that case does not persuade me I am wrong.

67. The Plaintiff is also entitled to interest. At the damages hearing the topic was left for the future so I will publish these reasons, direct the Plaintiff to provide a specification of its claim for damages and stand the matter over for any supplementary submissions and Judgment.

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Decision last updated: 06 July 2016