Kilvington v Grigg
[2010] QDC 496
•23 December 2010.
DISTRICT COURT OF QUEENSLAND
CITATION:
Kilvington v Grigg & Ors [2010] QDC 496
PARTIES:
KIM THOMAS KILVINGTON
(Plaintiff)
AND
ALAN GRIGG
(First Defendant)
AND
STATE OF QUEENSLAND
(Second Defendant)
AND
SRIDHAR KASHIVISHWANATH
(Third Defendant)
FILE NO/S:
D52109/09
DIVISION:
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Ipswich
DELIVERED ON:
23 December 2010.
DELIVERED AT:
Brisbane
HEARING DATE:
8-10 November 2010
JUDGE:
McGill DCJ
ORDER:
Judgment for the second and third defendants.
CATCHWORDS:
MEDICINE – Medical practitioner – duties to patient – certificate for application to superannuation fund – whether duty to provide – whether damages suffered.
Altmann v IOOF of Victoria Friendly Society [2004] QDC 5 – followed.
Appleby v Sleep [1968] 2 All ER 265 – cited.
Baltic Shipping Co v Dillon (1993) 176 CLR 344 – cited.
Bonham v Carrier (2000) 21 Qld Lawyer Reps 87 –cited.
Bonham v Carrier [2002] 1 Qd R 474 – cited.
Breen v Williams (1996) 186 CLR 71 – applied.
Bunyan v Jordan (1937) 57 CLR 1 – cited.
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 – cited.
Coomera Resort Pty Ltd v Kolback Securities Ltd [2004] 1 Qd R 1 – cited.
Fatimi Pty Ltd v Bryant (2004) 49 NSWLR 678 – applied.
Fortuna Seafoods Pty Ltd v The Ship “Eternal Wind” [2008] 1 Qd R 429 – applied.
Furniss v Fitchett [1958] NZLR 396 – considered.
Giller v Procopets (2008) 24 VR 1 – considered.
Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd (No. 2) [1999] 1 Qd R 163 – cited.
Magill v Magill (2006) 226 CLR 551 – applied.
Meshlawn Pty Ltd v State of Queensland [2010] QCA 181 – cited.
O’Brien v T.F. Woollam & Sons Pty Ltd [2002] 1 Qd R 622 – cited.
O’Connor v S.P. Bray Ltd (1937) 56 CLR 464 – cited.
Pfizer Corporation v Ministry of Health [1965] 1 All ER 450 – cited.
RMC v NAN [2010] 1 Qd R 395 – followed.
Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2) [2001] 1 Qd R 518 – cited.
Wilkinson v Downton [1897] 2 QB 57 – distinguished.COUNSEL:
The plaintiff appeared in person
C.J. Fitzpatrick for the second and third defendants
SOLICITORS:
The plaintiff was not represented
Corrs Chambers Westgarth Solicitors for the second and third defendants
The plaintiff has a superannuation policy with AMP Ltd. He has not worked for some time, for various reasons, but he is not entitled to be paid out the superannuation policy on the basis of age. In 2008 the plaintiff decided he would seek to have the balance of his superannuation paid to him on the ground of permanent incapacity. He obtained documents from AMP Ltd which indicated that such an application had to be supported by certificates from two medical practitioners dealing with issues relevant to the question of whether payment was to be made to him on this ground. At the time, the first defendant had been his general practitioner for some years, and the plaintiff sought from him such a certificate.
The plaintiff was at the time also attending from time to time a community mental health clinic operated by the Health Department but separate from Ipswich Hospital, where he had seen the third defendant, who was a medical practitioner working at that clinic, but not a specialist psychiatrist. He also asked the third defendant to provide a certificate. At the time he believed that the third defendant was a psychiatrist (p 32); that was of some relevance in view of what he had been told about the requirements of AMP Ltd. In the event, the first defendant did not provide a certificate for some time, and did no only after various things had passed between him and the plaintiff, and the third defendant did not at any time provide a certificate.
The plaintiff alleges in these proceedings that the failure of the third defendant to provide that certificate was a breach of duty on the part of the third defendant, or a breach of a contract between the plaintiff and the second or third defendant, and that accordingly the plaintiff is entitled to recover damages in respect of financial loss that he has suffered as a result. He also relied on breach of statutory duty, breach of fiduciary duty, civil conspiracy and deliberate act causing harm. The plaintiff claimed that the defendants were also liable for aggravated and exemplary damages because of their conduct in the action. A similar claim was made in the proceedings against the first defendant; that claim was compromised prior to trial, and the action proceeded only against the second and third defendants. Apart from his oral evidence, three affidavits by the plaintiff were also treated as evidence in the trial.[1]
[1]Court documents 4, filed 16 April 2009 (the first affidavit) and 17, filed 27 May 2010, the second and third affidavits, which for some reason were treated as one court document.
Those defendants disputed that there was any duty on the second defendant to provide the certificate, either in contract or in tort. They also deny that there was any statutory duty imposed under the legislation governing superannuation in Australia, or that there was any relevant fiduciary duty owed to the plaintiff. They denied that there had been a civil conspiracy between the first and third defendants, or that the third defendant had intentionally done an act calculated to harm the plaintiff. The defendants also submit that the plaintiff could not prove causation as, if the third defendant had provided a certificate to the plaintiff, it would not have satisfied the requirements of AMP Ltd and so the plaintiff would not have obtained a payment out of his superannuation balance in any event. The defendants also disputed that the plaintiff had suffered the financial loss claimed by him as a result of the failure to obtain payment of the superannuation balance, given that the consequence of that was that the balance remained available for the plaintiff in the future. The defendant also alleged the plaintiff had failed to mitigate his loss.
Background
The plaintiff was born in 1957 and was admitted as a barrister in Queensland in December 1983, after graduating with honours in law: Exhibit 9. He was subsequently also admitted to practice in the High Court, New South Wales, the Northern Territory and Tasmania. He served for a time as an associate to a Supreme Court judge,[2] and practiced as a barrister in Southport from 1984 to 1988, after which he spent two years practicing in Brisbane before spending two years travelling. He worked for the Central Australian Aboriginal Legal Aid Service in Alice Springs in various periods, the first beginning in March 1992, or otherwise practiced as a barrister, including a period from December 2001 to April 2002 on the Gold Coast, before taking a position as a senior civil lawyer with the Legal Aid service in Alice Springs in April 2002.[3] He left that position in August 2005,[4] and has not worked since: p 25.
[2]Morgan p 55.
[3]Following a nervous breakdown which put him in a psychiatric hospital for 14 days, followed by an extended break on the Gold Coast: plaintiff p 75.
[4]He said he had terrible problems at this time because of his persistent drinking, which meant he did little useful work: plaintiff p 76, p 18.
The plaintiff has a significant history of mental illness, being apparently first diagnosed with depression in about 1985, soon after he started practice as a barrister: p 76.[5] There are a number of medical reports dealing with the plaintiff on one of the defendant’s files, Exhibit 24, presumably there because they were provided by the plaintiff. Their location in the file does not provide any clear indication of when that occurred, but the plaintiff said that he had provided copies of these reports to the Mental Health Service, on more than one occasion.[6] There is a letter to a doctor, presumably a GP, from a psychiatrist, Dr Tabart, in Alice Springs dated 22 January 2001, which speaks of his having seen the plaintiff for the past year or so. The letter does not give a particular diagnosis, and indicates that he has been treated with a variety of psychotropics without much success.
[5]He had been referred to a psychiatrist for long-term psychotherapy in 1988, by which time he was drinking heavily: Exhibit 1, Report of Dr Straton.
[6]Plaintiff p 79; copies of these reports are also found in Exhibit 1.
A letter to the plaintiff from Dr Tabart dated 7 March 2001 referred to the plaintiff having been discharged from the Gold Coast Hospital. It speaks of the plaintiff having a disturbed personality but the letter does not contain any particular diagnosis. It does refer to previous alcohol abuse, causing some earlier therapy to be a failure.[7] A report dated 26 October 2002 from a psychologist, Mr Rushton, referred to his having seen the plaintiff over a number of months on the Gold Coast before the plaintiff moved to the Northern Territory. It said the plaintiff had generalised anxiety disorder, dysthymic disorder, avoidant personality and associated severe alcohol abuse. It noted a history of occasional major depressive episodes in the past. There was a period in late 2002 and 2003 when the plaintiff was abstaining from alcohol, but by June 2003 he was drinking very heavily again.
[7]A number of medical reports in Exhibit 1 also refer to heavy drinking, at various dates.
A further letter from Dr Tabart dated 10 December 2003 referred to the underlying problem as severe characterlogic disturbance stemming from experiences in childhood. The letter also spoke of alcohol dependence and a lack of sobriety, which made it difficult to assess him for underlying mood disorder, and rendered antidepressants probably useless. A letter from a general practitioner in Alice Springs dated 28 February 2005 referred to the plaintiff’s having been an extremely heavy drinker for many years, though he was not drinking at that time. He was said to have a long history of disabling anxiety with obsessive compulsive tendencies, and referred to his having undergone electro compulsive therapy. The electro compulsive therapy was administered in Darwin in 2004, and followed a period of inpatient detoxification. It was given for depression, and he felt better after it, but once he was released from hospital he began drinking again and his condition became worse again.[8] His general health was said in 2005 to be poor.
[8]Exhibit 1, Report of Dr Tabart 22 July 2005; plaintiff p 18.
A letter from a drug and alcohol clinic in Melbourne dated September 2005 indicated that he had been an inpatient there for five weeks. There is on the file a handwritten report apparently by someone associated with that clinic referring to an extensive psychiatric history, and diagnoses of post traumatic stress disorder, social phobia, and major depressive disorder; despite his treatment he continued to find it very difficult to be around other people and finds most environments terrifying. That doctor did not think the plaintiff would be able to work for the next two years.
In December 2005 the plaintiff was in Ipswich,[9] where he had seen a psychiatrist, Dr Richardson, through the West Moreton Integrated Mental Health Service. He wrote to the first defendant on 18 July 2006, as he understood the first defendant was then the plaintiff’s general practitioner. Dr Richardson referred to a diagnosis to early onset alcohol dependence complicated by personality traits, and he subsequently diagnosed bipolar affective disorder. There was some improvement with medication but the plaintiff began drinking again and that was complicating his treatment, since apparently there were some antidepressants he should not be taking while drinking.
[9]He had come to a Brisbane detox centre from an Alice Springs detox centre, and was discharged to a half-way house at Ipswich: plaintiff p 74.
The third defendant
The third defendant qualified in medicine in India, graduating in 1996 and thereafter working in hospitals before moving to England in 2004, where he passed the qualifying exams and then worked as a house officer in psychiatry: p 5. In 2006 he came to Australia and worked in the Ipswich Hospital, after obtaining conditional registration; he was employed in the position of a principal house officer until early 2010 when, after he obtained unconditional registration, he became a registrar in psychiatry. The significance of the appointment as a registrar is that it means he is engaged in a training program which if successfully completed will lead to his qualifying as a specialist psychiatrist. The position of principal house officer was similar to the position of registrar in terms of the work that was done, but the holder of that office was not engaged in a training program for specialist qualification: p 6. No doubt for many purposes, a principal house officer is therefore treated the same as a registrar; one of the defendant’s witnesses, a “team leader” who worked at the Ipswich Mental Health Service, described the third defendant as a registrar when speaking of him at the relevant time, i.e. 2009.[10]
[10]Forward p 102.
In the latter part of 2008 the third defendant was working at the Ipswich Mental Health Service, a unit which effectively provided outpatient psychiatric care, in contrast to the inpatient psychiatric care provided within the Ipswich Hospital: p 8. There was also a separate unit which provided psychiatric care for acute cases, something which was similar to, but not the same as, a psychiatric emergency department, as exists for example at the Royal Brisbane Hospital: p 36. The system operated by the health department is that doctors who are registrars or principal house officers rotate through a number of different positions involved in mental health, essentially on a six monthly basis; for registrars, this is an important requirement for their training in psychiatry: p 8.
The third defendant first saw the plaintiff on 18 August 2008. He had previously seen a different doctor on 24 April 2008. It appears from the medical notes of the earlier visit, which are within Exhibit 24, that his mental state was much the same, that there were no particular problems, although the doctor noted “still drinking a lot and doesn’t want to give it up”. He had been working on a book which had been occupying a lot of his time. There is a note that he was looking for another job in his field, and was wanting to go to India. The doctor’s plan was to continue the same treatment with a review in six weeks’ time; there was a note that the plaintiff visited his GP (the first defendant) on a regular basis. It appears that thereafter the plaintiff did not keep appointments and there was some difficulty contacting him before he returned on 18 August and saw the third defendant.
The third defendant’s notes of 18 August 2008 appear within Exhibit 24; there was also a typed up version within Exhibit 8. There was some discussion about the psychiatric history, and his position at that time, which seems to have been much the same. The notes refer to his drinking up to 20 beers a day, and he was not prepared to address alcohol issues at this stage. There was a note that he has withdrawal symptoms if he does not drink, which he wanted to avoid.[11] He had in mind travelling overseas to Asia, since he felt that would be a way to cut down on his alcohol intake.[12] The third defendant adjusted his medication and encouraged him to cut down his alcohol intake. There was no reference in the notes to any discussion about the plaintiff wanting a certificate for his superannuation.
[11]Withdrawal symptoms are quite unpleasant: Sridhar p 43. It appears that the plaintiff drinks to avoid having the withdrawal symptoms.
[12]The plaintiff told me that he had found that he did not need as much alcohol when he had previously been visiting Asia: p 78.
The third defendant said in evidence that he thought at the time that the plaintiff’s major problem was with alcohol: p 14. The plaintiff’s mental state appeared to be stable, in view of the history given and the mental state examination, and he was concerned that the alcohol consumption could destabilise his illness.
Events leading up to the request for certificate
The plaintiff had previously applied successfully to another superannuation fund, Australian Super, in 2006 or 2007, which had released the plaintiff’s superannuation account on the basis of the plaintiff’s permanent incapacity.[13] That application was supported by a certificate from the plaintiff’s general practitioner in Alice Springs, Dr Ingamells.[14] In 2008 he became interested in obtaining the AMP Ltd superannuation monies. The reason for this was his deteriorating financial state. He is receiving a disability pension, but that was (and is) quite inadequate to fund his actual level of alcohol consumption, even though he otherwise lives very modestly. It appears that he has made up the difference essentially by loans (or gifts) from relatives, or at times by obtaining credit.[15] For example, at one time he obtained a credit card and ran up a large debt on that card, which is still owing. Indeed, part of his claim for economic loss is based on the proposition that he has incurred interest (at a typically high level) in respect of that credit card debt which could otherwise have been cleared had the superannuation funds been available to him in a timely way.[16] He wanted funds to pay his debts, and to fund further overseas travel, as well as money to live on.
[13]Plaintiff p 79.
[14]First affidavit of plaintiff Exhibit KTK4; a copy dated 6 October 2006 is included in Exhibit 1.
[15]Plaintiff p 21, p 27; and at one time by exhausting his savings: p 79.
[16]First affidavit of plaintiff para 75.
In a letter dated 29 August 2008 AMP Ltd sent him forms by which he could apply for release of part of his superannuation money on the ground of financial hardship.[17] Presumably these were sent in response to some request from the plaintiff; he said that his interest was only ever in obtaining a payout on the ground of permanent incapacity, and this letter must have been sent by mistake (p 38), and that may well be correct. In any case, I accept that the plaintiff did not obtain the correct forms from AMP Ltd until some time after 29 August 2008, and accordingly did not have forms available for the third defendant to sign on 18 August 2008.
[17]First affidavit of plaintiff Exhibit KTK5.
The plaintiff saw the third defendant again on 15 September 2008. The notes in Exhibit 24 reveal that in the interim there had been a visit to Brisbane when he ran out of medication, or some medication, for a period, and developed a hypermanic episode. It appears to have settled, at least to some extent, after he returned to Ipswich and recommenced on his medication, but the third defendant said that this episode was very concerning as indicating the beginning of a relapse: p 15. There are notes of a mental state examination with an assessment that the mental state is stable. There was some adjustment to the medication, and further encouragement to cut down on alcohol use, with a reminder that help was available to him if he wanted to take that up. Nevertheless, the notes record: “Admits to drinking about 20 glasses of beer per day. No plan or intention to cut down.”
There was some reference to superannuation during this visit. The notes record: “Has plans to apply to release his superannuation funds.” It does not appear that at that time the plaintiff actually asked the third defendant to sign a certificate. There is nothing in the notes to suggest that that was the case, and the plaintiff was not able positively to contradict that proposition. The third defendant had no recollection of any such request being made at that time: p 19. He thought it was not a good time for such a step because the plaintiff was quite unwell; he said he expressed his concerns to the plaintiff: p 20.
The plaintiff said that he obtained the forms from AMP Ltd in about September (p 79, p 37) and wrote both to the first defendant and to the third defendant enclosing the certificates to be completed plus an indexed bundle of copies of medical reports which he had obtained over the years. Such a letter to the first defendant dated 14 October 2008 is Exhibit 3, but the plaintiff asserted that there was also a similar letter to the Mental Health Service: p 41. The plaintiff said that the letter was hand delivered to the Mental Health Service reception, but no such letter appears on the second defendant’s file for the Mental Health Service, and the third defendant denied ever having seen that letter. The plaintiff seemed to accept that that denial by the third defendant was genuine: p 42. It does appear that there is a bundle of medical reports of the kind described by the plaintiff on that file, but there is nothing to indicate whether they arrived in the process of the plaintiff attempting to obtain the certificate, or whether they had been provided by the plaintiff on some other occasion, for example, soon after he began to see the Ipswich Mental Health Service; the reports pre-date the plaintiff’s beginning to visit that service after he returned to Queensland from Alice Springs. On the whole, I think it likely that the plaintiff did deliver the letter and its contents to the Mental Health Service, but that it was not drawn to the attention of the third defendant personally.
The plaintiff saw the third defendant again on 29 October 2008. There was a reference in the notes to one part of his medication being reduced after seeing his GP, and the third defendant continued the existing medication. There was some further discussion about cutting down on his drinking, with the third defendant again encouraging him to cut down, and the plaintiff “not prepared to stop his drinking hence does not want to attend ATODS”. The notes record: “Wants form filled to draw out his superannuation money.” The plaintiff said that this was discussed at this time, and that the third defendant had or appeared to have the forms on his desk at the time when this discussion took place. That cannot have been the case if the first set of forms went missing, as they had not by then been replaced.
The third defendant’s attitude was that he was not actually asked to sign a certificate at that interview, and that he had not been provided with a certificate to sign. He said that he was not familiar with a certificate in connection with obtaining a superannuation payment early on the ground of permanent incapacity, though he had in the course of his career signed various other certificates: p 19. The plaintiff, on the other hand, said that at least by the time of this appointment he was asking the third defendant to sign the certificate, that is to sign the form which he had previously left with reception and which he believed the third defendant had.
According to the third defendant, his response to the plaintiff in October was that, because of the nature of his illness and because his condition was not stable at that time, it was not a good time for him to be making judgments about financial matters and that it was accordingly not appropriate for him to be making decisions about, for example, whether or not to apply for a payout of his superannuation: p 28. He said that the plaintiff was happy for him to contact the first defendant and he told him he would discuss the matter with the first defendant and take the matter from there; he said the plaintiff appeared to accept that that was the situation: p 29. He was concerned at the time about the plaintiff’s plans, and he wanted to make sure he was acting in the plaintiff’s best interests.
Soon after 17 November, the plaintiff provided replacement forms to both the first and the third defendant.[18] The plaintiff did not say that at any time he actually took the forms with him when he saw the third defendant; he said that on a second occasion he delivered the forms to the Mental Health Service and left them with the receptionist. The third defendant, however, maintained that he did not have the forms on this occasion, and had not seen them: p 28, p 49.
[18]First affidavit of the plaintiff, paras 15, 16.
On 2 December 2008 the third defendant telephoned the first defendant and discussed the question of providing the plaintiff with certificates for his superannuation. The plaintiff had also been seeing the first defendant, and had asked the first defendant to sign a similar certificate.[19] The first defendant was reluctant to provide the certificate, not because of doubt as to the existence of a disability; he said that he thought the plaintiff was always disabled in terms of alcohol: p 37. He went on to add that his major concern was that if he received money he would spend a lot or some on alcohol. Certainly by 2 December 2008 the plaintiff had had contact with the first defendant in relation to the form being signed, had pressed the first defendant to sign the form, and the first defendant had resisted doing so.
[19]I accept that this occurred, although there is no reference to this issue in the first defendant’s notes before 20 December: Exhibit 2.
The third defendant’s note of a conversation on 2 December simply recorded that the first defendant was feeling very uncomfortable about filling in the forms and said he planned to talk to the plaintiff before Christmas and would advise about the outcome. There are, however, no notes of any further contact with the first defendant before Christmas, and both defendants said there was no further contact.[20] The first defendant said that in this conversation he told the third defendant of his plan to get a letter, setting out how the money would be spent (p 42) but said nothing about any agreement between them to that effect. The third defendant made no mention of this;[21] he said they just discussed their reservations about providing the certificate: p 30.
[20]Grigg p 42, Sridhar p 30.
[21]See also Sridhar p 33: he denied any such discussion.
The plaintiff saw the first defendant on 20 December 2008, and had a long discussion about this desire to obtain his superannuation monies.[22] The first defendant said that at that time his concern was that, because of a constant intractable wish to drink alcohol, it was not in his best interests to obtain possession of this money.[23] His opinion was that the plaintiff’s mental illness made it more difficult for him to abstain from alcohol. Because of this, he asked for a list of the things the plaintiff planned to spend the money on: p 41.
[22]Grigg p 33.
[23]Grigg p 34, p 37, p 41. See also first affidavit of plaintiff paras 20 – 30.
One of the complicating features of this matter is that at one stage, apparently on 20 December 2008, the first defendant told the plaintiff that he would provide a certificate as required, provided that the plaintiff gave him a written undertaking as to how he proposed to deal with the money if it were released. The plaintiff was very upset about this proposal, and challenged the first defendant about it,[24] but says he ultimately complied and provided such an undertaking in a letter dated 23 January 2009: Exhibit 5. He also provided a similar undertaking to the third defendant, although again this was done by leaving it at reception at the Mental Health Service. I accept that it was not provided directly to the third defendant. I also accept that the third defendant never saw any such document (p 32), and that it was not part of any agreement between the plaintiff and third defendant that the third defendant would obtain such a document: p 33.
[24]Plaintiff p 81.
The third defendant next saw the plaintiff on 5 January 2009. On this occasion there were still some symptoms of the hypermanic episode from which he was recovering, and there was some further adjustment made to his medication. The plaintiff was still drinking at the same rate and had no plans to cut down. The plaintiff asked him again about signing the certificate, and he expressed concern that it was not appropriate for the plaintiff to be deciding financial issues at that time in circumstances where his medication was not stable and when he was recovering from a hypermanic episode: p 31. The third defendant denied that he said at that time (or any time) that he would complete the form: p 32, p 68. He said that the plaintiff was upset and angry that the form had not been completed and that it was necessary for him to try to diffuse the situation by explaining his reasoning.[25] The only matter noted about this was that the plaintiff “reported that he has discussed with his GP regarding release of superannuation funds.”
[25]Sridhar p 32; the plaintiff said he was firm with him, and said he was desperate to get the money: p 80. See also first affidavit of plaintiff para 32.
The idea of a written statement of how the money would be spent appears to have come specifically from the first defendant. It may be, however, that when the first defendant was speaking to the plaintiff about the matter, he used terms which suggested that the third defendant also required such a form, or perhaps that the third defendant would provide a certificate if such a form were provided.[26] However, I do not accept that the third defendant ever decided that he would provide the certificate sought by the plaintiff and I therefore am not persuaded that the third defendant ever told the plaintiff or the first defendant that he would provide the certificate.[27] Insofar as the plaintiff’s case depends on the proposition that the third defendant at some point agreed with the plaintiff that he would provide the requested certificate, but then failed to keep that agreement, I am not persuaded that that agreement was made.
[26]The plaintiff said something like this at p 81 line 49.
[27]It follows that I reject the plaintiff’s evidence that he said he would sign if the first defendant did: p 80; first affidavit of plaintiff para 31. The third defendant specifically denied this: p 68.
Such an agreement could not have been made until the point had been reached where the third defendant had actually been asked to sign the form, and I accept that from the time the third defendant was asked to sign the form his position was that he did not consider that it was appropriate to sign the form, essentially for two reasons. The first of these was that he did not think the plaintiff ought to be making decisions about financial matters of such importance in his then current mental state (p 39), and the second was that he was not prepared to express the view that the plaintiff was permanently incapacitated in terms of the formulation in the form.[28]
[28]As explained in crossexamination at pp 69 – 71; see also p 81. He did not say he was motivated by the concern of the first defendant, that the money would fund further alcohol consumption; the plaintiff said he expressed no such concern at the time: p 80.
The opinion expressed by the third defendant in the witness box was essentially to the effect that, although the plaintiff had significant mental problems, the treatment of them was being seriously impaired by the alcohol dependence: p 18. If the plaintiff could avoid alcohol, the various other problems that the plaintiff had were, at least potentially, treatable: p 70. The third defendant said that he had known of cases of people with similar problems whose conditions were controlled by medication and who were able to continue to function at a reasonably high level, certainly able to continue to work. The third defendant’s position on this was essentially that, if the plaintiff could keep away from alcohol, his mental condition may well otherwise be able to be controlled adequately by medication so that he would be able to continue to work. At least unless and until such a thing had been tried, it was not possible to say that the plaintiff’s mental state was preventing him permanently from following his usual occupation, so as to say that he was permanently incapacitated.
It did seem to me that a possible flaw in this reasoning was that the plaintiff’s alcohol dependence is itself a mental health issue. Such a condition is a recognised psychiatric condition,[29] and there does not seem to be any doubt that the plaintiff was suffering from it, but despite the lengthy history and the numerous failed attempts at abstinence, the third defendant did not regard the plaintiff’s case as hopeless. His position, as expressed to me, was that he had known of cases of people who had successfully given up alcohol, even after a long history of dependence, and that he did not like to give up hope that the plaintiff would at some stage follow such a course.[30] In those circumstances, he did not regard the plaintiff as permanently disabled by alcohol dependence either. Leaving aside the question of whether or not that was a reasonable view, which I will address elsewhere, I accept that that was the third defendant’s actual view, and that in those circumstances he would not in fact have been prepared to provide the certificate requested by the plaintiff.[31] In those circumstances I think it most unlikely that he would ever have agreed to provide the certificate, and I am therefore not persuaded that the plaintiff has shown that he ever did agree to provide the certificate, whether unconditionally or subject to the provision to him of either an undertaking from the plaintiff (as sought by the first defendant) or a copy of the first defendant’s certificate.
[29]Nothling p 111.
[30]Sridhar p 17.
[31]If in fact some or all of the communications from the plaintiff and others came to the attention of the third defendant and he did not reply deliberately (which I do not find) that would still suggest he was not in fact willing to provide the certificate.
Soon after the visit on 5 January 2009, the third defendant left the Mental Health Service on 9 January having completed his rotation there: p 34. Indeed, on 21 January he took annual leave, and was out of Australia until 18 February 2009, when he resumed duties at the Ipswich Hospital dealing with inpatients in the mental health ward there: p 34. In the meantime, the plaintiff had seen the first defendant again on 19 January 2009, at which time he was told that he had to provide the undertaking before any certificate would be completed. The plaintiff was most unhappy about this, but in fact completed an undertaking and delivered it to the first defendant’s surgery, and also left a copy with the Mental Health Service reception,[32] though as usual it never came to the notice of the third defendant: p 33. On 27 January 2009 the first defendant signed the certificate, and on 3 February 2009 his receptionist faxed a copy of his certificate to the Mental Health Service.[33] In late January and February 2009 the plaintiff attempted to obtain the completed certificate from the third defendant, by a number of attendances at the Mental Health Service, but that was unsuccessful; apart from anything else, the third defendant was not there: p 82, p 56.
[32]A copy is Exhibit 5. see also first affidavit of plaintiff para 39, Exhibits KTK 8, KTK 9.
[33]This, or at least part of it, did find its way on to the plaintiff’s file (Exhibit 24), but it was not brought to the attention of the third defendant: p 32.
The plaintiff was seen again at the Mental Health Service by a different doctor, Dr Lipohar, on 4 February 2009. There is no reference in the medical notes made by Dr Lipohar (who did not give evidence) as to any discussions about the certificate which had been sought from the third defendant, nor indeed about what had happened to the third defendant. She provided for a further review. The plaintiff said that on this visit Dr Lipohar had his letter to the first defendant, which was part of the fax sent by him to the Mental Health Service, and told him she would have to speak to the third defendant about that: p 88, p 50. I accept that occurred, but that she did not in fact speak to him about it;[34] he was at that time still on holidays.
[34]Sridhar p 78.
The plaintiff on 26 February 2009 served on the Mental Health Service a letter addressed to the third defendant demanding that he complete and return the certificate which had been sought from him, which letter, like other things that were left at that service, did not find its way to him: p 38, p 77. In these circumstances it is unsurprising that he did not comply, though in the light of his evidence he would not have provided the certificate sought even if the letter had come to his notice. This action was commenced on 19 March 2009.
On 23 March 2009 there was a case conference at which reference was made to the plaintiff’s case, and someone has noted the decision “close next time”. The plaintiff evidently had another appointment to see Dr Lipohar, who was seen on 24 March 2009. At that time she told him he had stabilised.[35] It appears from Dr Lipohar’s notes that her plan included referral to the GP and review in five weeks. Five weeks from 24 March is 28 April. There is a note from Dr Lipohar on that date “DNA” (presumably did not attend) “letter to GP sent, close to the service”. On 24 March 2009 Dr Lipohar wrote to the first defendant referring to a diagnosis of bipolar affective disorder and some intermittent diagnosis of anxiety and depression in the past, listing the current medication, stating that the plaintiff had been stable in his mental state for a while and advising that they would like to close the plaintiff to the Mental Health Service and would be grateful if he could accept this referral and follow him up. In the light of this, I wonder whether Dr Lipohar’s intention was that the follow up in April 2009 would be undertaken by the first defendant.
[35]First affidavit of plaintiff para 55; he was not happy about her attitude.
The records which I have do not reveal whether an appointment was in fact made for the plaintiff to attend on 28 April 2009. They do, however, include a “fail to attend” process checklist in respect of his missing an appointment on that date, which is revealing. None of the first three steps on the list, said to be appropriate for all missed appointments, has been ticked as completed, nor has the reference to a letter offering a new appointment time been ticked. The item “second missed appointment” referring to a letter sent to GP and client closed to the service and discharge summary completed by the doctor has been ticked. The only other note on the page is “closed to the service” and what looks like Dr Lipohar’s initials. Dr Scott, who was the clinical director of the West Moreton Integrated Mental Health Service, conceded that appropriate procedures had not been followed in relation to the failure of the plaintiff to attend this appointment: p 13. He said that in early 2009 the service was attempting to reduce the number of cases on its books in order to make its case load more manageable within the resources available, and for that reason efforts were being made to close to the service a number of clients who were thought to be able to be managed adequately in other ways: p 18-9.
At some time, presumably after 24 March 2009, though the date is not clear and cannot be identified, the plaintiff attended the Mental Health Service, not perhaps in response to any particular appointment but because he was feeling quite disturbed at that time: pp 87-8. He was seen by the team leader, who essentially took him outside and explained to him that he had been referred back to his general practitioner, who would look after him.[36] The plaintiff seems to have accepted that at the time, though at least in retrospect he was quite upset about the way in which he was handled on this occasion, which he interpreted as the Mental Health Service refusing to treat him further because he had commenced the court proceedings. I accept that that was not what was occurring, although it is unfortunate that the Mental Health Service did not check with the first defendant to see whether he was happy to accept the referral of the plaintiff to him, and would be continuing to treat the plaintiff. In fact, after the action was commenced the first defendant refused to treat the plaintiff any further, and indeed had solicitors write to him warning him to stay away from his surgery.[37]
[36]Plaintiff p 88; Forward pp 98-9.
[37]Plaintiff p 82; Grigg p 50.
Although the plaintiff did ultimately have a certificate from the first defendant, no other certificate was forthcoming and no claim for permanent incapacity was ever made in respect of his superannuation payments. A claim for payment on the basis of hardship was made in December 2009, and a payment of $10,000 was made to him, the largest amount which could be made on that basis under the terms of that policy: p 47. That was almost half the balance of the policy; a subsequent attempt to make a similar claim was rejected on the basis that only one such claim could be made every 12 months: p 46. Presumably it would be open to the plaintiff to make a further application once that time limit has expired, and if he did, he may well receive effectively the balance of his superannuation account in that way anyway.
The bases of the plaintiff’s claim – breach of contract – general
The plaintiff alleges that there as a contractual relationship between him and the third defendant. This was said to arise out of the very nature of the doctor-patient relationship. I have some difficulty, however, with the notion that there is necessarily a contractual relationship in existence merely because there is a doctor providing medical service to a patient. Commonly that occurs on the basis of the patient consulting a doctor in the expectation that there will be a fee payable by the patient (or by someone else on behalf of the patient) for the provision of medical services. That has been the traditional concept of a contractual basis for the doctor-patient relationship. Where, however, medical service are provided by the government free of charge to patients,[38] it is difficult to see that there is any consideration provided by the patient, which is an essential element of any contract. At least in some circumstances, courts have held that there is no contract in circumstances where health care is provided by the government to the public,[39] though it appears this would not apply to medical services which are the subject of a bulk billing arrangement, because they are characterised as a situation where the doctor accepts an assignment of the patient’s Medicare benefit in return for providing the service, something which does provide consideration from the patient.[40] In the present case, however, there was nothing of that nature, and the third defendant denies that there was any contract between the third defendant and the plaintiff.
[38]As was the case here: Sridhar p 13.
[39]Pfizer Corporation v Ministry of Health [1965] 1 All ER 450, esp at 455; Appleby v Sleep [1968] 2 All ER 265 at 269.
[40]See the discussion in Edelsten v Health Insurance Commission (1988) 24 FCR 512 at 515-7.
I have not been able to find any clear Australian authority on this point.[41] However, it seems to me that in principle the absence of consideration from the plaintiff is fatal to the existence of any contract between him and the third defendant in the present case. In those circumstances, I am not persuaded that there was a contract, and therefore there necessarily cannot have been any relevant contractual duty owed by the third defendant to the plaintiff.
[41]Jackson & Powell “Professional Negligence” (3rd Ed 1992) p 448 says there is probably no contract in these circumstances. The point was not decided in Breen v Williams (1996) 186 CLR 71, which is a case about contract and fiduciary duty.
—breach of contract – specific contract
It is alleged in paragraph 17 of the statement of claim that on or about 6 January 2009 (in fact, on the visit on 5 January 2009) the third defendant advised the plaintiff that he would complete the medical certificate if and only if the first defendant confirmed to him that he had or was going to sign his copy of the medical certificate. I am not persuaded that any such advice was given on that occasion, or for that matter on any other. There is nothing in the third defendant’s notes at the time to suggest that such a statement was made, although it was noted that the plaintiff had said he had discussed the release of the superannuation funds with the first defendant. It may well be that the plaintiff thought that if the first defendant signed the certificate then the second defendant was likely to sign also, but I am not persuaded that the second defendant actually agreed to sign or advised that he would sign in such circumstances.
The second defendant’s evidence before me, which I accept, was really quite inconsistent with that being his attitude at the time, in view of his evidence to the effect that he did not consider he could properly sign the certificate in the terms sought by the insurance company in the light of the opinion that he actually held. Accordingly, I reject this allegation. This is notwithstanding that the plaintiff’s version was recorded by him as early as 23 January 2009 when he composed a letter to the first and third defendants: Exhibit 5. My impression of the third defendant in the witness box was that he was very cautious, and that on this occasion, as he said, he was trying to defuse the situation, but I think it unlikely that he would have offered a specific commitment to the plaintiff. He was always unhappy about the plaintiff’s accessing his superannuation money: p 21. He may well have referred to the fact (which was true) that he had not heard further from the first defendant since their telephone conversation on 2 December, and may have said that he was waiting to hear from the first defendant, or something to that effect. I suspect that the plaintiff has read more into what the third defendant said than was actually there.
I therefore reject, so far as the third defendant is concerned, the plaintiff’s allegation in paragraph 29 of the statement of claim, on the facts. It follows that there is no implied contractual duty as alleged in paragraph 30 of the statement of claim.
—negligence causing economic loss
There can, however, be a duty of care imposed by law and enforceable by a claim for damages in tort, if the duty imposed is breached and loss is suffered as a result, whether or not there is a contract in existence. There is no doubt as a general proposition that the third defendant, like any medical practitioner, owed a duty to take reasonable care to avoid causing harm to the plaintiff in connection with his treatment of him, and this involved the exercise of reasonable professional care and skill on his part. The content of duty has usually been discussed in terms of the obligation not to cause physical harm to a patient, but in the present case the plaintiff alleges that the duty extends to causing financial harm or loss to him.
Further, there is the complication that the duty usually arises in the context of the exercise by the doctor of the doctor’s professional skill by way of the provision of advice and treatment. In the present case, however, what was sought was not advice and treatment but a particular service, namely the completion of a medical certificate for use for a particular purpose. Assuming that there was a duty to be active in providing advice and treatment in relation to relevant medical matters to the plaintiff because the plaintiff was a patient of the third defendant, it does not necessarily follow that the duty extended to providing a medical certificate simply because the plaintiff asked for it.
Of course, it might not necessarily be put on that basis; it would not I think be sufficient to give rise to a duty to provide the certificate simply that the plaintiff wanted one; but in accordance with ordinary principles, it may be possible to formulate a test for the existence of a duty of care to avoid financial loss, what is referred to as economic loss, on conventional grounds. However, it is clear that the mere foreseeability of economic loss is not sufficient to impose a duty of care. It may be also relevant to consider whether a difference exists between a situation where a patient would suffer some financial loss if the doctor did not provide a certificate, and a situation where a doctor is asked to provide a certificate with a view to the patient’s obtaining some financial advantage. Take the situation where a person in a contract of employment is entitled to take time off work to attend a doctor, but must produce a certificate from the doctor to the effect that the doctor has been seen by the particular patient, in order to avoid loss of wages for that period. In that situation, the patient would suffer a loss in the form of a loss of wages unless the doctor provided the certificate, and it may well be that there would be a duty on a doctor who was appraised of that situation to provide such a certificate.
The position I think is a little different here. The absence of the certificate did not cause the plaintiff any loss, in the sense that that term is ordinarily understood; rather, the plaintiff was seeking a certificate for the purpose of obtaining a benefit or advantage. In late 2008 the plaintiff had a superannuation policy with a particular balance, and at the time the proceedings were commenced the plaintiff had the same superannuation policy and the balance was much the same, although there had been some increase.[42] What the plaintiff wanted to do essentially was to gain access to money which was not immediately accessible to him. The question of whether the plaintiff suffered some harm or detriment as a result of not being able to access his superannuation balance is a question which would have to be decided objectively and is I think a question of some considerable difficulty.
[42]One of the matters complained of by the plaintiff in his pleading was that he had suffered loss because of the decline in the value of his superannuation benefit as a consequence of the global financial crisis. That allegation fails on the facts; on the evidence the balance has actually increased since the end of 2008: first affidavit of plaintiff Exhibits KTK 2, KTK 12.
I need to say something more in relation to the question of foreseeability of harm. The present case is not one where the issue of foreseeability of economic harm is an obvious one. It is not obviously the case that a person is better off getting possession of superannuation funds early rather than retaining them as a financial resource for the future. On the face of it, viewed objectively, a person who obtains possession of his superannuation funds and then spends them could be seen as being, at least after they have been spent, worse off financially than he had been previously, so that the loss of a superannuation fund would I think ordinarily be seen as a detriment rather than a benefit. There may be an exception to that in circumstances where the effect of the release of the fund is to enable the person to discharge debts which carry a high rate of interest, but if the objective is, at least in part, to obtain possession of the fund so as to spend the money on various things (and in this context it may not matter very much whether it is a trip to Asia or buying alcohol), the effect of that will be to dissipate what is otherwise a financial resource available to the person.
The plaintiff spoke with some feeling of the interference with his autonomy that was involved in preventing him from using the money in the way that he chose; but this was not something which was governed solely by the activities of the defendants. The whole point of superannuation, as it is regulated by Commonwealth legislation, is that it is a form of saving which involves making the money in the fund inaccessible to the person concerned until certain specific events occur, ordinarily until the person concerned retires after the minimum age for retirement for the purposes of the scheme. From the point of view of the legislature, the advantage of superannuation is that it relieves the general tax payers of the burden of supporting retired people after they retire, and for that purpose saving and investment in superannuation funds is encouraged by a variety of taxation concessions. That social benefit of the superannuation system would be lost if the funds could be readily withdrawn prior to retirement age, and accordingly access to the funds prior to retirement at not less than the specified age has been deliberately restricted by the legislature. To some extent, therefore, the plaintiff’s autonomy in relation to this money was restricted by the legislature rather than by the defendants.
The plaintiff’s attitude at the time, and indeed his attitude during the trial, was predicated on the notion that he was (to him, obviously) permanently incapacitated, so that the funds would be available to him on that basis if only the doctors would complete the certificates. Even from his point of view, he was worse off as a result of their refusal to complete the certificates because his financial autonomy was being impaired, something to which he took strong objection, rather than because he was going to be worse off in financial terms as a result of the unavailability of the money. His concern was not to obtain some financial benefit or advantage, but to be able to do what he wanted to do, in particular, travel to Asia, about which he spoke with some feeling. I accept he was sincere in this. This he believed would be beneficial to him, particularly in terms of his spiritual and emotional wellbeing, but it is by no means obvious that it would have been in his financial interest. It was also a potentially harmful choice for someone with the extensive health problems that he had.[43] Even if his previous experiences in Asia had suggested that neither his alcoholism nor his other mental health issues would be as troublesome while he was there as they were in Australia, he also had extensive problems with his physical health[44] which obviously could have caused him problems while he was travelling in Asia. That could well have been very costly for him.
[43]The third defendant’s attitude was that it was quite risky: p 41; p 60.
[44]I need not detail these, but they are referred to in some detail in reports from a physician provided earlier this year, included in Exhibit 1.
Accordingly, looked at objectively, it is difficult to see, even with the benefit of hindsight, that there is much in the way of economic harm which the plaintiff has suffered as a result of his being unable to access the superannuation funds when he wanted to do so. Looked at from the point of view of the third defendant, it is difficult to see how it would have been reasonably foreseeable that the plaintiff would suffer economic harm if he was not able to access this money to spend as he wished. To the extent that he was able to discharge existing debts which were carrying interest, there would have been some economic advantage, but to the extent that he was planning to spend the money in some way there would be, objectively speaking, an economic detriment. Accordingly, it is by no means clear that in the circumstances of this case it was reasonably foreseeable by the third defendant that the plaintiff would suffer economic loss as a result of a failure to provide the certificate.
At this stage, however, assuming that the plaintiff was actually worse off financially as a result of the failure to provide the certificate and hence (presumably[45]) the failure to obtain the superannuation balance, and that this was reasonably foreseeable to the third defendant, was there a duty on the third defendant to act so as to avoid that financial harm, by providing the certificate which was sought?
[45]Ultimately it was up to the trustee, but I am prepared to assume that if favourable certificates had been provided the plaintiff would have been paid out.
This appears to be a novel case; neither the plaintiff nor counsel for the defendants was able to refer me to any authority on the question of a duty to provide a certificate in order to avoid financial harm, and my own researches have not brought anything to light. Indeed, there seem to be very few cases where issues of liability of medical practitioners in the context of certificates by them have been considered at all.
One example of an unusual situation where a court had to consider a question involving a certificate was Furniss v Fitchett [1958] NZLR 396. In that case the plaintiff sued a medical practitioner for psychiatric injury in the form of nervous shock as a result of her being confronted, during cross-examination in litigation against her husband, with a certificate given by the doctor to the husband to the effect that she exhibited symptoms of paranoia, she should if possible be treated, and examination by a psychiatrist was needed to diagnose her case and its requirements. It was held that there was a duty of care on the doctor not to provide the certificate in circumstances where it was foreseeable that it could come to his patient’s knowledge and that if it did so she would suffer harm as a result. In that case, however, the giving of the certificate was really incidental, and the case is an unusual example of the conventional principle that the doctor owes the patient a duty to take reasonable care to avoid harm in the form of psychiatric injury to the patient.
It also appears to be generally accepted that if a doctor does decide to provide a patient with a certificate for use in a situation such as this, that is to show to a third party with a view to that third party relying upon the certificate for some particular purpose, the doctor will owe a duty of care to the third party in relation to the matters certified. If the doctor knows that the third party will be relying on the care and skill with which advice is given on the particular matter (i.e. in the certificate) there is a duty to exercise reasonable care and skill in the provision of that advice. Potentially, therefore, if the third defendant had chosen to give the plaintiff the certificate he sought and did not exercise reasonable care and skill in relation to the opinion that he expressed, with the result that the insurance company suffered economic loss, the insurance company may well have been able to sue for damages. Such a situation may provide a practical disincentive for a doctor to provide a certificate if that course is avoidable.
Liability in Australia for economic loss separate from any personal injury or damage to property dates from the decision of the High Court in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529. In that case it was held that the owners of the dredge which damaged an underwater pipeline were liable to the oil company that owned the oil that used the pipeline, and depended upon its presence for its operations, for economic loss suffered as a result of the damage. The president of the Court of Appeal considered this and subsequent leading authorities in the area in Fortuna Seafoods Pty Ltd v The Ship “Eternal Wind” [2008] 1 Qd R 429. Her Honour said at p 437:
“This developing area of Australian law has moved incrementally and cautiously. … Caltex and Perre[46] suggest that the determination of whether a defendant owes a claimant a duty of care not to cause mere economic loss will depend on a combination of factors including the reasonable foresight of the likelihood of harm; the defendant’s knowledge or means of knowledge of an ascertainable, determinate class of persons who are at risk of foreseeable harm; the claimant’s vulnerability or whether they are unable to protect themselves from the foreseeable harm; whether the implication of a duty would impair the defendant’s legitimate pursuit of autonomous commercial interests including the existence of any contracts between the claimant and defendant; whether the damage flowed from the occurrence of activities within the defendant’s control; the closeness of the relationship between the parties and the existence of any other special circumstances justifying compensation. There is, however, no simple formula to be applied in determining whether the application of these principles to the facts of this case has the result that ‘Eternal Wind’ is responsible for Fortuna Seafoods’ claimed economic loss. The answer to that question requires some more detailed attention to the pertinent facts of this case.”
An aspect of that was that I was presented with very long and somewhat rambling submissions on behalf of the plaintiff. I am sorry if these reasons ultimately do not do them justice; I have attempted to deal as well as I can with the issues identified in the pleadings and that emerged as real issues in the course of the trial. I believe that the findings that I have made deal with all of those issues, and deal with the substance of the matters raised by the plaintiff in the course of his submissions. Because they are so long and detailed, it is not practicable for me to respond in detail to every point made by the plaintiff in his submissions. Most of them are dealt with either directly or indirectly in the course of the reasons that I have given; to the extent that there are others that are not, it is sufficient to say in a general way that I am not persuaded by them to depart from any aspect of the reasons set out earlier.
The plaintiff’s action overall fails. Unless some other order is appropriate for reasons not known to me, if the defendants seek costs it will be appropriate to order that the plaintiff pay the defendant’s costs of and incidental to the action to be assessed, but I will await the delivery of these reasons to see what happens.
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