Luck v Stephen Blamey & Associates Pty Ltd

[2000] VSC 77

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 4429 of 2000

GAY LUCK	Plaintiff
v.
STEPHEN BLAMEY AND ASSOCIATES PTY. LTD.	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 MARCH 2000
DATE OF JUDGMENT:	3 MARCH 2000
CASE MAY BE CITED AS:	GAY LUCK v. STEPHEN BLAMEY & ASSOCIATES PTY. LTD.
MEDIUM NEUTRAL CITATION:	[2000] VSC 77

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CATCHWORDS:      Mandatory injunction to compel medical practitioner to treat patient - Contract to provide personal services - No degree of assurance that plaintiff succeed in proceeding - Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the Defendant	Mr J. Lenczner	Abbot Stollman & Wilson

HIS HONOUR:

1. The plaintiff in this proceeding, Gay Luck, suffers from scleroderma.  Scleroderma is a disorder of the connective tissue of the body.  It is quite uncommon.  It affects the connective tissue in the skin, blood vessels, joints and internal organs such as the kidneys, heart, lungs and bowel.  It can also effect peripheral blood vessels causing them to undergo changes that cause a reduced flow of blood to the skin, particularly the hands and feet.  Those changes may also occur in some internal organs.

1. On 31 May of 1999 the plaintiff was referred to a general surgeon, Mr Stephen Blamey, by her general practitioner, Dr Pricillia Loew.  Mr Blamey practises in Victoria as a general surgeon specialising in gastroenterology and endoscopy as Stephen Blamey & Associates Pty Ltd.

1. By letter of 8 February 2000 the plaintiff instructed Mr Blamey to perform two biopsy procedures upon her.  The two cites of the biopsy were to be the middle phalanx of the ring finger of the left hand and the right lateral pectoral  region of her body.  Mr Blamey performed the two procedures on 14 February 2000.  On a number of occasions after that day the plaintiff attended his rooms for the purpose of having the wounds dressed.

1. On 21 February the plaintiff again attended Mr Blamey.  It is clear from the affidavit the plaintiff swore on 24 February last that by now she was dissatisfied with certain aspects of the treatment she had received from Mr Blamey.  Whilst Mr Blamey was attending to her that day, the plaintiff alleges that Mr Blamey said to her that he was sick of her complaints and that the plaintiff should take any complaints to the Medical Board. 

1. On 22 February the plaintiff rang Mr Blamey's rooms with a view to making a further appointment to see him.  At that time an appointment was made for her on Monday 28 February.  However, later on 22 February the plaintiff alleges that Mr Blamey's secretary rang her and said that Mr Blamey had instructed her to tell the plaintiff that he had done all he could for the plaintiff and that she was to go to her local general practitioner for anything further in the future.  According to the plaintiff's affidavit, the plaintiff told Mr Blamey's secretary that Mr Blamey was in breach of his contract with her.  However, she says that Mr Blamey's secretary told her that Mr Blamey had been in touch with the Medical Board and that they had advised him that "this was all right".

1. At all events, on 24 February the plaintiff made an urgent ex parte application to me seeking an order that Mr Blamey, or, more accurately, Stephen Blamey & Associates Pty Ltd, perform its contract with the plaintiff.  I refused the application that day pointing out to the plaintiff, as I did, that I would not entertain any such application until appropriate notice had been given to Mr Blamey and he had had an opportunity of being represented before the court in relation to any such application.

1. On 25 February the plaintiff filed a writ in the court in which she seeks by way of relief an order that the defendant, Stephen Blamey & Associates Pty Ltd "perform the main contract and/or collateral contracts in full and in person".  Alternatively, she seeks inter alia an order that Stephen Blamey & Associates Pty Ltd perform the main contract and all collateral contracts in full by providing the services of a specified associate of equivalent qualifications, skill and experience and with the same abilities to deal with special patient requirements as were offered to the plaintiff from time to time.

1. That same day the plaintiff filed a summons in the court seeking, amongst a number of other things, interlocutory orders to the same effect.

1. At some time that same day, that is 25 February, Mr Blamey wrote a letter to the plaintiff.  The letter reads. 

"Re termination of care. 

This is to notify you that I am no longer willing to undertake your care.  I have exercised my professional skills in pursuing a diagnosis of your various problems, and just recently carried out skin biopsies for you to provide a specimen to Hightech Pathology for assessment.  I am not a specialist dermatologist and suggest, as I have several times, that you obtain the opinion of a specialist dermatologist or physician in the management of the previously clinically diagnosed scleroderma.  I have notified Dr Pricillia Loew that I will not be continuing your care. 

Your sincerely."

1. I now have an application before me by the plaintiff, who, I should say, appears in person, seeking the relief sought in her summons.  As I endeavoured to point out to the plaintiff during the course of discussion, it is not my function to make any determination in relation to this matter; that is any final determination.  That must await a full trial of the proceeding.  My only task is to determine whether the plaintiff has satisfied me that it is appropriate in the circumstances of this case to make any interlocutory order in the matter.

1. The short answer to that question is that the plaintiff has not.  The contract that the plaintiff had with either Stephen Blamey or Stephen Blamey & Associates Pty Ltd is a contract to provide personal services.  This court is very reluctant to make any order in a proceeding, the effect of which would be to enforce such a contract, particularly on an interlocutory basis.

1. An interlocutory injunction of that nature is a mandatory injunction and before the court would be prepared to contemplate granting a mandatory injunction there must be a high degree of assurance that the plaintiff will succeed at the trial of the action.

1. The injunction sought is one which would have the effect of ordering specific performance of a contract for personal services and any such order would require continuing court supervision over a long period of time.  That is simply something a court is not prepared to undertake.

1. In the circumstances, therefore, the plaintiff's application must be dismissed.

1. I order that the plaintiff pay the defendant's costs of the application.

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