Lee v Fairbrother

Reported Decision: 9 DCLR (NSW) 164

District Court

CITATION:	Lee v Fairbrother [2009] NSWDC 192
HEARING DATE(S):	6, 7, 8, 9 and 10 July 2009
JUDGMENT DATE:	10 July 2009
EX TEMPORE JUDGMENT DATE:	10 July 2009
JURISDICTION:	Civil jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. Judgment for the plaintiff in the sum of $153,500. 2. Order the defendant to pay the plaintiff's costs, to be assessed on the ordinary basis until 1 April 2008 and thereafter on an indemnity basis.
CATCHWORDS:	NEGLIGENCE - A general practitioner entered into a sexual relationship with his patient as a result of which she suffered a psychiatric condition - breach of duty of care - whether the relationship amounted to assault - causation: whether the plaintiff's condition arose out of the defendant's conduct as a medical practitioner - DAMAGES - Civil Liability Act 2002 not applicable - damages to be assesed under the general law - assessment of compensatory damages - aggravated damages awarded - exemplary damages not appropriate where the medical practitioner had been de-registered by the Medical Tribunal
LEGISLATION CITED:	Civil Liability Act 2002: s 3B(1)
CASES CITED:	Qantas Airways v Lisica [2007] NSWCA 371 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [7] Lamb v Cotogno [1987] HCA 47
PARTIES:	Christine Lee (Plaintiff) Mark Fairbrother (Defendant)
FILE NUMBER(S):	3113/07
COUNSEL:	Mr A Campbell (Plaintiff) The Defendant appeared in person
SOLICITORS:	Gerard Malouf & Partners The Defendant was self-represented

JUDGMENT

The plaintiff's claim
1. The plaintiff, Christine Lee, claims damages from the defendant, Mark Fairbrother, in respect of a psychiatric condition she alleges she developed as a result of a sexual relationship she entered into with him that commenced and continued whilst he was her treating general practitioner. Ms Lee alleges that as a result of this psychiatric condition, in addition to her general loss of enjoyment of life and other consequences, she has suffered various other economic losses in the form of medical expenses incurred to date, a need for future medical treatment and the cost of such treatment, and a diminution, or at least a deferral, or her capacity to earn.

2. She claims compensatory damages, including general damages. She also seeks aggravated damages and exemplary damages. The defendant opposes her claim. Firstly, he denies liability. Secondly, he denies that she has suffered any injury, loss or damage; or alternatively, if she has, it was not caused by any actionable conduct on his part. He further disputes the nature and extent of her psychiatric condition and its effect upon her.

Background
3. At the time of the events which are the subject of these proceedings, the defendant was a medical practitioner conducting his practice at the Wyoming Medical Centre. There is no dispute that he was consulted by the plaintiff in January 2004, firstly in connection with a dog bite suffered by her son Zac, and subsequently by the plaintiff on her own behalf in connection with a pre-existing obsessive compulsive disorder which had been exacerbated by…