Price v Friebe
[2024] QSC 157
•26 July 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Price v Friebe & Ors [2024] QSC 157
PARTIES:
CHRISTOPHER JOSEPH PRICE
(plaintiff)
v
JAMES DETLEF FRIEBE(first defendant)
KATE EMILY KERRIDGE
(second defendant)
TERENCE MICHAEL SHEAHAN
(third defendant)
NAMRATA BAJRA
(fourth defendant)
EVA MARIA KRETOWICZ
(fifth defendant)
EE MIN KHO
(sixth defendant)
FILE NO/S:
BS No 13618 of 2021
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
26 July 2024
DELIVERED AT:
Brisbane
HEARING DATE:
25 October 2023; 26 October 2023; 27 October 2023; 30 October 2023; 31 October 2023; 1 November 2023; 3 November 2023
JUDGE:
Kelly J
ORDERS:
1. Judgment for the defendants.
2. I will hear the parties as to costs.
CATCHWORDS:
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – RESTRICTIVE TRADE PRACTICES – ARRANGEMENTS AFFECTING COMPETITION – CONTRACT, ARRANGEMENT OR UNDERSTANDING – where the parties were private obstetricians at a hospital – where the parties, from time to time, provided obstetric services to the patients of another party, described as being “on-call” or “providing cover” – where one way in which cover is arranged and provided is pursuant to a roster – where the plaintiff, first defendant and second defendant were in an “on-call roster” together, and the third to sixth defendants were in a separate on-call roster together – where the defendants decided to create a new on-call roster group together and the plaintiff was not invited to join this new group – where the plaintiff alleged that, in forming the new group, the defendants made an arrangement, or arrived at an understanding, that contained “a cartel provision” within the meaning of that term as contained in s 45AD(1) of the Competition and Consumer Act 2010 (Cth) – where the plaintiff alleges that the defendants’ conduct ultimately caused him to cease practice at the hospital – whether the creation of the new roster by the defendants amounted to an arrangement or understanding that contained “a cartel provision”
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – UNCONSCIONABLE CONDUCT – GENERALLY – where the plaintiff alleged, in the alternative, that defendants’ conduct in creating the new on-call roster group together, and not inviting the plaintiff to join this new group, was unconscionable under s 21 of Sch 2 to the Competition and Consumer Act2010 (Cth) – whether the conduct of the defendants’ was unconscionable
Competition and Consumer Act2010 (Cth), s 45AD, s 45AJ, s 45AK, Sch 2, Sch 2 s 21,
Competition Policy Reform (Queensland) Act 1996 (Qld), s 4, s 5, s 6Fair Trading Act 1989 (Qld), s 16, s 17
Australia Competition and Consumer Commission v Cascade Coal Pty Ltd (2019) 13 ARLR 271; [2019] FCAFC 154, cited
Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321; [2007] FCA 794, applied
Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90, cited
Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222, cited
Australian Security and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18, cited
Bale v Mills (2011) 81 NSWLR 498, cited
Commissioner of Taxation (Cth) v Lutovi Investments Pty Ltd (1978) 140 CLR 434; [1978] HCA 55, cited
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, & Allied Services Union v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132, cited
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, cited
Finucane v New South Wales Egg Corporation (1988) 80 ALR 486, cited
Hughes v Western Australian Cricket Association Inc (1986) 19 FCR 10, cited
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; [2002] HCA 41, cited
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12, cited
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; [1998] HCA 69, cited
Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 22 ALR 621, cited
News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563; [2003] HCA 45, applied
Norcast S.ar.L v Bradken Ltd (No 2) (2013) 219 FCR 14; [2013] FCA 235, cited
Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53; [2003] HCA 75, cited
Seven Network Ltd v News Ltd (2009) 182 FCR 160; [2009] FCAFC 166, cited
Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275, applied
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55, applied
Watson v Ralph (1982) 148 CLR 646; [1982] HCA 35, citedWilliams v Pisano (2015) 90 NSWLR 342, cited
COUNSEL:
N H Ferrett KC with S M McLeod for the plaintiff
M O Jones for the defendants
SOLICITORS:
Cowell Clarke for the plaintiff
HWL Ebsworth for the defendants
Matters of introduction
Nature of this proceeding
This proceeding arises out of the conduct of specialist obstetric practices at North West Private Hospital (“the hospital”), which is operated by Ramsay Health Care (“Ramsay”). There are facility rules published by Ramsay which are applicable to the management and operation of the hospital (“the Facility Rules”).
A patient requiring specialist obstetric care is admitted to the hospital under the care of their obstetrician. At times, during the patient’s admission, the patient’s obstetrician may not be at, and able to attend, the hospital and yet the patient may still require obstetric care. To deal with that type of contingency, another obstetrician may, from time to time, provide what is colloquially known as “cover” for the patient’s obstetrician. The term “cover” contemplates any occasion where an obstetrician stands in for, and looks after the patients of, another obstetrician in circumstances where that obstetrician is unavailable.[1]
[1]Transcript T4-6, lines 26-30.
One way in which cover is arranged and provided is pursuant to a roster.[2] A roster may broadly be described as an arrangement amongst a group of obstetricians in which each roster member agrees in advance to be available at specified times to provide obstetric services to the patients of other roster members. The member providing cover under the roster at any specified time is colloquially referred to as being “rostered on” or as being “on-call”. A roster is typically prepared months in advance and published in the relevant hospital ward.
[2]Transcript T5-8, line 45.
During the period from in or around January 2014 until on or about 14 June 2021, the plaintiff (“Dr Price”) had been a member of a group of obstetricians at the hospital (“group A”) which operated a roster. At the time of the material events leading up to June 2021, the first defendant (“Dr Friebe”) and the second defendant (“Dr Kerridge”) were the other members of group A. The roster operated by group A applied to weekends and weeknights and was reciprocal in the sense that, when rostered on, each member would provide cover to the other members of the group. Drs Price and Friebe had “an unwritten expectation” that they would also “cover each other’s practice” when they separately took holidays.[3]
[3]Transcript T4-12, lines 23-27.
From in or around 2018 until in or around June 2021, another group of obstetricians at the hospital (“group B”), operated another reciprocal roster which applied to weekends and holidays. At the material times, the members of group B were, relevantly, the third defendant (“Dr Sheahan”), the fourth defendant (“Dr Bajra”), the fifth defendant (“Dr Kretowicz”), the sixth defendant (“Dr Kho”) and a Dr Bob Watson. Dr Watson would retire on or about 30 June 2021.
In or about June 2021, a new group of obstetricians at the hospital formed, comprised of the defendants (“the new group”). Dr Price was not invited to be a member of the new group and he was subsequently not included in rosters published by the new group. He contends that the circumstances in which the new group formed were unlawful because they involved a restrictive trade practice, cartel conduct, and were otherwise unconscionable.
The trial was conducted according to the pleadings. The parties agreed a list of issues in dispute which cross referenced the pleadings. In my consideration of the issues, it has been convenient to place the various issues into groups.
By way of overview, as to the cartel conduct case, Dr Price alleged that, in forming the new group, the defendants made an arrangement, or arrived at an understanding, that contained “a cartel provision” within the meaning of that term as contained in s 45AD(1) of the Competition and Consumer Act2010 (Cth) (“the CCA”), as applied by ss 4(1), 5 and 6 of the Competition Policy Reform (Queensland) Act 1996 (Qld) (“the Competition Act”). A provision of a contract, arrangement or understanding will be regarded as a cartel provision if it relevantly satisfies the conditions identified in s 45AD(1) of the CCA. In the present case, the relevant conditions which fell to be satisfied were a purpose condition (as contained in s 45AD(3)(iii)) and a competition condition (as contained in s 45AD(4)). The purpose condition required the provision to have the purpose of directly or indirectly preventing, restricting or limiting the supply, or likely supply, of services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding. The competition condition required that at least two parties to the alleged arrangement or understanding were or were likely to be, or but for the alleged arrangement or understanding would be or would be likely to be, in competition with each other in relation to the supply of the services.
In pleading his cartel conduct case, Dr Price referenced a concept of “on-call services” which he defined[4] as comprising:
“(i)an agreement in advance between two or more obstetricians to ensure that one of those obstetricians would be available, during a pre-determined period when another of them was not rostered to work or was otherwise unavailable, to provide [specialist obstetric services] to that other obstetrician’s patients, in the event that they were required (generally called ‘Covering’, or providing ‘Cover’ to, that other obstetrician); and
(ii)the provision of [specialist obstetric services] by one obstetrician to the patient of another, if and when required, during the period in which the first obstetrician was ‘Covering’ the second (‘On-Call Patient Services’).”
[4]Further Amended Statement of Claim, [7(c)].
In these reasons I have used the expression “on-call services” in the sense that expression was defined by paragraph 7(c) of Dr Price’s pleading. That definition was the subject of an order of Boddice J dated 16 August 2022 pursuant to which Dr Price’s solicitors were ordered to write to the defendants’ solicitors stating whether the pleaded definition of on-call services was “concerned only with demand amongst obstetricians for services to be provided by one to the other, without any corresponding reciprocal obligation for the second obstetrician to provide services to the first”. Pursuant to that order, by a letter dated 29 September 2022 to the defendants’ solicitors, the plaintiff’s solicitors relevantly provided this further explanation of the pleaded definition of on-call services:
“We confirm that paragraph 7(c)(i) is not concerned ‘only with demand amongst obstetricians for services to be provided by one to the other, without any corresponding reciprocal obligation for the second obstetrician to provide services to the first’.
Paragraph 7(c)(i) encapsulates demand by an obstetrician (say, Obstetrician A) for any form of agreement, reached in advance, which is designed to ensure that another obstetrician will be available to attend to the patients of Obstetrician A during a pre-determined period.
In some cases, that demand might be met by an agreement which imposes reciprocal obligations on two or more obstetricians to provide services to each other (for example, a typical On-Call Roster).
In other cases, the demand might be met by an agreement pursuant to which Obstetrician B provides services to Obstetrician A, but Obstetrician A is not required to provide services to Obstetrician B.
In other cases still, an obstetrician may meet this demand through a combination of different types of arrangements, or change which types of arrangements they participate in over the course of their career (be that through preference or necessity).
The Plaintiff does not dispute that particular obstetricians may have preferences for which type of agreement is used to satisfy the demand pleaded in paragraph 7(c)(i), or that different types of agreements might be more or less effective / achievable depending on the circumstances which obtain at a particular time. This is the case with all demand in all markets. Indeed, his case is that On-Call Rosters are generally the best (and, in some cases, the only viable) solution for meeting the demand for coverage.
Regardless of precisely how it is satisfied, however, the fundamental nature of what is being demanded remains the same — being reliable coverage by another obstetrician in circumstances where the first obstetrician is required to ensure their patients have access to treatment and care at all times, but it is neither practicable nor desirable for that obstetrician to make themselves personally available to their patients at all hours, without break, on an ongoing basis.
The Plaintiff’s case is that, given the particular facts at hand (which include, notably, that the Defendants represent six of the eight obstetricians practising at the Hospital), there was no sustainable or realistic way for him to meet this demand once he was denied reliable cover by the Defendants.” (emphasis in original)
By the end of the trial, Dr Price’s submissions acknowledged that on-call services were generally referred to in practice simply as “cover”.[5]
[5]Plaintiff’s written closing submissions, [56].
Dr Price alleged that in around April 2021, the defendants made an arrangement or arrived at an understanding (described by his pleading as “the New Group Arrangement”) which contained provisions to the effect that:
(a)Drs Friebe and Kerridge would join group B, so as to form the new group;
(b)the members of the new group would publish new, or supplementary, group rosters to reflect the addition of Drs Friebe and Kerridge to group B’s preexisting arrangements;
(c)from at least September 2021, the defendants would provide on-call services to each other in accordance with the new group rosters; and
(d)Dr Price would not be invited to join the new group or included in any group rosters published by the new group.
Dr Price described the particular provision to the effect that he would not be invited to join the new group or included in any group rosters published by the new group as “the Exclusionary Provision”. He alleged that the Exclusionary Provision had the purpose of directly or indirectly preventing, restricting or limiting the supply or likely supply of on-call services by each of the defendants to him. That allegation was advanced in the context where Dr Price separately alleged that there was “demand” amongst obstetricians at the hospital for the supply of on-call services and that each of the defendants were, or but for the New Group Arrangement, would have been, in competition with each other in relation to the supply of on-call services to other obstetricians.[6] From in or about April 2021, the defendants were alleged to have given effect to the Exclusionary Provision.
[6]Amended Statement of Claim, [30].
Dr Price separately alleged that the defendants’ conduct was unconscionable.
The defendants’ cartel conduct, or alternatively their unconscionable conduct, was alleged by Dr Price to have ultimately caused him to cease practice at the hospital.
The Statutory Framework for Dr Price’s claims
The parties accepted that this Court had jurisdiction to hear and determine Dr Price’s claims.[7]
[7]Plaintiff’s written closing submissions, [7]; Defendants’ supplementary submissions on jurisdiction, [2].
The Exclusionary Provision was alleged to be a cartel provision within the meaning of s 45AD of the CCA. Sections 45AJ and 45AK of the CCA concern corporations making and giving effect to contracts, arrangements or understandings which contain a cartel provision. Sections 5 and 6 of the Competition Act provides that the “Competition Code text” as in force from time to time (“the Competition Code”) applies as a law of Queensland. Section 4(1) of the Competition Act provides to the effect that the Competition Code text consists of the Schedule version of Part IV of the CCA which relevantly includes ss 45AD, 45AJ and 45AK, modified to include references to persons who are not corporations and other provisions of the CCA relevant to the application of those sections.[8] The defendants were alleged to have contravened ss 45AJ and 45AK by variously making the New Group Arrangement and giving effect to the Exclusionary Provision.
[8]Including s 4F (“References to purpose and reason”), s 82 (“Actions for damages”), s 86 (“Jurisdiction”), and s 87 (“Other orders”).
Section 21 of Schedule 2 to the CCA, being the Australian Consumer Law (“the ACL”), relevantly provides to the effect that a person must not in trade or commerce engage in unconscionable conduct in connection with the supply, or possible supply, of services. The effect of ss 16 and 17 of the Fair Trading Act 1989 (Qld) (“the Fair Trading Act”) is that the “Australian Consumer Law text” (which is defined to include Schedule 2 to the CCA) (“the Qld ACL”), applies as a law of Queensland. Dr Price alleges that he was in a position of situational disadvantage and vulnerability in relation to the defendants, acting collectively, and that their conduct towards him was unconscionable within the meaning of s 21(1) of the ACL.
The witnesses
Dr Price and each of the defendants were called as witnesses. Their evidence in chief was essentially by way of affidavit. It may be observed that significant parts of their respective affidavits were not challenged in cross-examination. Another obstetrician, Dr Anastasios Stamatiou, provided an affidavit but was not required for cross-examination.
Ms Ellen Whittaker was the director of clinical services at the hospital from in or about 2006 until 9 December 2022. She was also a member of the Executive Management Committee of the hospital which had the role of advising the hospital’s Chief Executive Officer on operational and strategic matters. As the Director of Clinical Services, her primary responsibility was clinical governance. Ms Whittaker was called as a witness and her evidence in chief was essentially by way of affidavit.
Two independent expert obstetricians gave evidence, Dr William Milford and Dr Douglas Keeping. They provided separate expert reports and a joint report. They were each called as witnesses at the trial. As will become apparent from these reasons, around 23 April 2021, in the midst of the events in question, Dr Kretowicz sought advice from Dr Keeping, whom she regarded as a very senior and experienced obstetrician, as to how the members of group B might deal with what Dr Kretowicz described as an escalating situation with Dr Price. Dr Keeping provided oral advice to Dr Kretowicz at this time (“the Keeping Oral Advice”). By reason of having been involved in the material events to this extent, Dr Keeping was potentially a relevant witness of fact and conceivably could have given evidence of circumstances evidencing Dr Kretowicz’s subjective purpose at the relevant time. It was also tolerably clear from the substance of the Keeping Oral Advice, that Dr Price had been regarded as having acted inappropriately or contrary to collegiate expectations. It was not in dispute that Dr Keeping was a well-respected and experienced doctor. However, his involvement in the material events in the manner, I have outlined, led me to conclude that he was not a truly independent expert. I have given his evidence minimal weight to the extent that it differed in any material respect from the evidence of Dr Milford.
Mr Elia Lytras provided an independent forensic accountant’s report addressed to quantum issues.[9] He had been instructed by Dr Price’s lawyers Mr Joseph Box, an independent forensic accountant was instructed by the defendant’s lawyers and provided a report. Messrs Lytras and Box had participated in a joint conference and provided a joint report. Ultimately the defendants did not call Mr Box as a witness. His report was not tendered and an amended version of the joint report was tendered by consent.
[9]Transcript T4-54, Transcript T6-38 and Transcript T8-44.
The events of 2021 involved significant conflict in the professional lives of the parties and led to solicitors’ correspondence and, ultimately, this litigation. The events, and the ensuing litigation, undoubtedly caused stress for each of the parties and contributed to differing levels of animosity as between Dr Price and the various defendants. Given that context, in giving evidence, it would have been difficult for each witness to remain perfectly detached from their own perceptions and feelings about the relevant events. That is not a criticism but rather, provides some explanation for why recollections, in some respects, placed different interpretations and emphasis upon certain events.
It is important to recognise that this litigation did not involve the determination of any real issue concerned with the professional qualifications and competency of any party. The litigation was conducted on the basis that Dr Price was a skilled and competent obstetrician. To the extent that some of the evidence in the case involved reference to Dr Price’s views about Dr Bajra, it should be noted that those views were merely Dr Price’s personal opinions.
Dr Sheahan was an impressive witness. He had taken diary notes of material conversations and presented as a witness who was intent on giving evidence limited to his actual recollection. Drs Kho and Kretowicz were also impressive witnesses. They each had peripheral involvement in the formation of the new group. They had no history of animosity with Dr Price and gave clear and credible evidence about their respective involvement in, and recollection of, material events. Dr Kretowicz was thoughtful and considered when she was responding to questions which required her to express her personal views and understandings. Dr Bajra appeared to struggle with her recollection of events. She had a clear memory of some conversations but a less than clear memory of others.[10] Ultimately, I found her to be a witness who did her best to provide a faithful account of her recollection of events.
[10]By way of example, refer to Transcript T6-17, lines 20-50.
There were some discrete aspects of the evidence of Drs Price, Friebe and Kerridge which were not satisfactory. Dr Price, at times, gave answers in cross-examination which were flippant and deflective.[11] Dr Friebe was less than frank about the extent to which he had consulted with Dr Kerridge in the lead up to their joinder of the new group.[12] In my assessment, he was unreasonably reluctant to admit that he and Dr Kerridge actively discussed amongst themselves the prospect of joining the new group and he had separately discussed the issue with Dr Sheahan, without having brought Dr Price into his confidence. Dr Kerridge gave evidence that was in some significant parts emotional and argumentative.[13] Ultimately, despite these unsatisfactory aspects, I formed the view that Drs Price, Friebe and Kerridge each generally endeavoured to be true to their respective affirmations and oaths.
[11]See by way of illustration, Transcript T1-30, lines 03-5; Transcript T1-30, lines 36-41; Transcript T1-44, lines 20-30.
[12]Transcript T4-36, lines 30-40; Transcript T4-19, lines 41-48; Transcript T4-23, lines 29-44.
[13]Exhibit 1, p 819 at [198]; Transcript T4-64, lines 23-31; Transcript T4-67, lines 19-24; Transcript T4-70, lines 11-39.
To the extent that, in any specific instance, I have preferred the evidence of one witness over that of another, rejected evidence or found that evidence was not credible, I have given my reasons for those findings as and when they appear.
Context in which the events of 2020 and 2021 occurred
The work of an obstetrician in private practice
Obstetric practice includes engaging in consultations with patients during their pregnancy, reviewing patients in hospital after their admission, usually post-natal, and may also involve dealing with emergency presentations of patients experiencing complications during their pregnancy or post-natal course.[14] Managing childbirth is an important part of an obstetrician’s practice and is attended by inherent uncertainty.[15] Unscheduled births can account for a significant percentage of a private obstetrician’s practice.
[14]Transcript T1-110, lines 25-34.
[15]Exhibit 1, p 1233 at [11].
Private obstetric care can require the provision of afterhours care, with minimal notice, and at times for prolonged periods of time.[16] In that respect, the professional life of a private obstetrician tends to be more unpredictable than other medical specialties.[17] In a usual case, a patient’s initial appointment with an obstetrician will occur at the six to ten week mark of a pregnancy, from which time the obstetrician is only able to generally predict when the birth will occur.[18] A patient normally engages a private obstetrician in the expectation that the obstetrician will be available at the time of the birth,[19] by which time a professional relationship between the obstetrician and the patient will ordinarily have been well established.[20] In acknowledgement of this expectation, a private obstetrician usually plans holiday leave, some seven to eight months into the future so that a patient can be told when the obstetrician will be on leave.[21]
[16]Exhibit 1, p 1235 at [21].
[17]Exhibit 1, p 1235 at [22].
[18]Exhibit 1, p 1234 at [15].
[19]Exhibit 1, p 1234 at [15].
[20]Exhibit 1, p 1234 at [16].
[21]Exhibit 1, p 1234 at [15].
As the expenses, in particular insurance premiums, associated with the conduct of a private obstetrics practice are significant,[22] there is a minimum number of births per month that most obstetricians need to undertake to achieve an economically viable practice.[23] Typically, at least 10 deliveries per month are required to make a private obstetrician’s practice financially viable.[24]
[22]Exhibit 1, p 1235 at [24].
[23]Exhibit 1, p 1235 at [26].
[24]Exhibit 1, p 1235 at [26] and some obstetricians engage in gynaecological work or public work to supplement their income.
Cover arrangements in private obstetric practice
In the 1960’s, a private obstetrician tended to work alone without any structured cover arrangements.[25] By the 1970’s and 1980’s, private obstetricians started to provide ad hoc cover to each other but without the structure of established rosters.[26] Roster groups became fashionable in the 1990’s and, during the last 10 to 15 years, larger roster groups became the norm.[27] The growth of roster groups reflected contemporary desires on the part of obstetricians to enjoy better lifestyles and engage in specialist work in addition to obstetrics.[28] Roster groups are essentially collegiate and informal.[29] One aspect of that collegiality is respect for the obstetrician who is rostered on at a particular time. If an obstetrician is rostered on, respect is given to that obstetrician to control the care and treatment of the patient of the obstetrician for whom cover is being provided. [30] Another aspect of that collegiality is that the covering obstetrician should demonstrate appropriate respect towards the trust that already exists between the patient and the obstetrician for whom cover is being provided.[31]
[25]Exhibit 1, p 1239 at [46].
[26]Exhibit 1, p 1239 at [47].
[27]Exhibit 1, p 1240 at [49].
[28]Exhibit 1, p 1240 at [52]; Transcript T4-6, line 44.
[29]Exhibit 1, p 1242 at [64]; p 1243 at [72].
[30]Transcript T6-9, lines 43-47.
[31]Transcript T3-50, lines 23-33.
Ordinarily, the arrangement or agreement which underpins the roster is not formally documented[32]. The size and composition of a roster may be affected by various considerations, including patient safety considerations, the need to provide high quality clinical care and the need to manage fatigue of the participating obstetricians.[33]
[32]Exhibit 1, p 1242 at [66].
[33]Transcript T4-38, lines 23-26.
Rosters can provide for reciprocal cover or one way cover. Reciprocal cover refers to “a group of doctors form[ing] a roster through informal or collegiate agreement…Whoever is on call treats the patients of all group members while on call, so members treat each other’s patients”.[34] One way cover may be provided in the context of a roster but also refers to cover where a practitioner is not a member of an on-call group for whatever reason but, out of respect for that obstetrician’s lifestyle and concern for that obstetrician’s patients, members of a roster will cover that obstetrician’s patients without the obstetrician forming part of the roster.[35] One way cover is unusual but can actually benefit the primary obstetrician who will usually still receive the larger portion of the birth fee.[36] In the experience of Drs Keeping and Milford “most people are kind enough to offer one way cover, it just might require some discussion about finances”.[37]
[34]Exhibit 1, p 1011 at [9].
[35]Exhibit 1, p 1242 at [69].
[36]Exhibit 1, p 1243 at [75].
[37]Exhibit 1, p 1242 at [68].
A further atypical arrangement amongst private obstetricians may involve a fixed roster, quarantined leave and salaried remuneration.[38] Those kinds of arrangements are designed to service the needs of patients who desire private care in a hospital with a specialist but who do not place value upon continuity of care from a single obstetrician.[39]
[38]Exhibit 1, p 1240 at [55].
[39]Exhibit 1, p 1241 at [58].
The history of rosters at the hospital
At or about the end of 1999, there was one obstetrics roster group at the hospital which included Dr Price, Dr Sheahan, Dr Darcy-Evans, Dr Watson, Dr Titiz and Dr Howland. The roster provided for weekend cover. In or about 2000, Dr Kretowicz started working in private practice at the hospital and worked there without cover of any kind for approximately three or four years.[40] During that time she developed a busy practice.[41] In the early 2000’s she asked Dr Price to join the roster group at the hospital but her request was declined.[42] In or around 2005, Dr Kretowicz moved her practice to the Mater Hospital. She eventually moved her practice back to the hospital in or around 2010 when her further requests to join the existing cover group at the hospital were denied by Dr Price.[43]
[40]Exhibit 1, p 1012 at [14].
[41]Exhibit 1, p 1012 at [14].
[42]Exhibit 1, p 1012 at [15].
[43]Exhibit 1, p 1012 at [23].
Dr Friebe commenced working at the hospital in or about August 2010. At that time there was one roster at the hospital, comprised of six obstetricians, which provided for reciprocal weekend cover. Dr Friebe initially worked at the hospital for a period of six months without being part of the roster. Eventually he was invited to join, and joined, the roster at the hospital.
In or around 2012, some tensions developed within that roster. There was an acrimonious meeting including at least Drs Howland, Sheahan and Price in which Dr Price was rebuked by the others for allegedly having made negative comments to patients about the quality of their care received from obstetricians in the roster.[44] Following that meeting, Dr Price and Dr Friebe formed a two person weekend roster and maintained that roster for around 18 months.
[44]Exhibit 1, p 720 at [34].
In or about June 2012, Dr Bajra called Dr Friebe and asked to join his and Dr Price’s roster group. The request was denied by Dr Friebe who said words to the effect that “he and Dr Price had decided to just stay with a one in two roster”.[45] Dr Michaela Hock later joined the hospital, and the two person weekend roster became a three person weekend roster. Dr Kerridge joined that roster group in or about 2014 which became known as group A. From 1 August 2014, Dr Kerridge conducted her practice from one of the rooms owned by Dr Price. Dr Hock retired in 2019 and the group A roster returned to a three person roster. Dr Friebe prepared or managed the roster for group A.
[45]Exhibit 1, p 980 at [22].
Following the split of the roster in or around 2012, the remaining members of the former roster formed a new group which became known as group B. Dr Bajra joined that group in or around July 2012.[46] That roster group provided cover to Dr Kretowicz on weekends or holidays without her being required to provide reciprocal cover to the roster’s members. That one way cover involved Dr Kretowicz being provided with cover “for any weekends or holidays [she] wanted”.[47] In around early 2018, Dr Darcy-Evans started to experience some health problems and asked Dr Kretowicz to cover the weekends on which he was rostered for the group. Dr Kretowicz began to provide cover on those weekends to the members of group B but without being a member of the group.[48] In or about 2019, Dr Kretowicz was invited to join group B.[49] From in or around that time, group B comprised Dr Sheahan, Dr Bajra, Dr Kretowicz, Dr Kho and Dr Watson. Dr Sheahan prepared or managed the roster for group B.
[46]Exhibit 1, p 980 at [23].
[47]Exhibit 1, p 1013 at [27].
[48]Ibid.
[49]Ibid.
Dr Stamatiou practiced as an obstetrician at the hospital from January 2019. He also practiced at the Wesley Hospital and the Mater Mothers Private Hospital. He briefly agreed to provide cover to group A on three weekends in August and October 2020. In or about September 2020 he decided that he would not join any roster group at the hospital. He ceased obstetrics practice in March 2022. When he wished to take holidays or needed to travel to attend conferences during 2021 and 2022, he would ask other obstetricians at the hospital to provide cover for him during those periods. He was provided with one way cover during those periods.[50] During the period from 24 June 2021 until 28 June 2021, Dr Price provided cover to Dr Stamatiou and during the period from 28 June 2021 until 5 July 2021, Dr Kretowicz provided cover to Dr Stamatiou.[51]
[50]Exhibit 1, p 1101 at [18]-[20].
[51]Exhibit 1, p 1069, p 1013 at [317].
Dr Hyytinen commenced practice as an obstetrician at the hospital in or around 2019.[52] She has never been part of a roster group. Dr Price observed that Dr Hyttinen “really wanted nothing to do with any obstetricians at our hospital”.[53] Dr Kho observed that Dr Hyytinen had been the busiest obstetrician at the hospital and had a practice which was “busier and busier as the years go by”.[54]
[52]Exhibit 1, p 1074 at [45].
[53]Transcript T1-85, line 33.
[54]Transcript T5-50, lines 36-43; Exhibit 1, p 1074 at [45].
The Facility Rules
The Facility Rules apply to all facilities operated by Ramsay in Australia, including the hospital.[55] The Facility Rules apply to large hospitals, rural clinics and day procedure centres.[56] For the purpose of the Facility Rules, Dr Price and each of the defendants were, relevantly, “specialist practitioners”, “medical practitioners” and “accredited health professionals”. As to the latter matter, the Facility Rules refer to a concept of “accreditation”.
[55]Exhibit 1, p 490 at [11].
[56]Exhibit 1, p 490 at [11].
The process by which a medical specialist becomes accredited at the hospital involves the following steps:[57]
(a)the practitioner submits a completed application to the hospital’s CEO;
(b)the CEO assesses the application and, if satisfied that the practitioner is suitably qualified, refers the application to the hospital’s medical advisory committee;
(c)the medical advisory committee reviews the applicants’ credentials, qualifications, experience, fitness and character and then makes a recommendation to the CEO;
(d)the CEO then submits the recommendations of the hospital’s medical advisory committee, together with his or her own recommendation, to Ramsay Health’s central credentialing committee;
(e)the central credentialing committee considers the material and makes a recommendation to Ramsay Health’s Australian Risk Management Committee; and
(f)the Australian Risk Management Committee makes a decision and advises the CEO.
[57]Exhibit 1, p 491 at [15].
To be accredited, an obstetrician usually must nominate another obstetrician as the “last point of call” or emergency person to be called in the event the obstetrician is not available.[58] However, the emergency person is very much to be regarded as “the last point of call”, as a hospital will generally first call the obstetrician nominated as being “on-call” by a roster or an obstetrician nominated as “covering” for the obstetrician.[59] A roster will notify the hospital who to call if the treating obstetrician is unavailable,[60] however such notifications are also provided in circumstances of one off cover or one way cover.[61]
[58]Exhibit 1, p 1237 at [32].
[59]Exhibit 1, p 1237 at [32].
[60]Exhibit 1, p 1237 at [33].
[61]Exhibit 1, p 1242 at [68].
The Facility Rules include the following material provisions:
“What are these Facility Rules?
1 This document sets out the current Facility Rules that apply to all hospitals and day procedure centres operated by Ramsay Health Care in Australia. These Facility Rules:
1.1implement the policies and set out the expectations of the Board of Ramsay Health Care;
1.2are intended to inform those who will be affected by and required to comply with the Facility Rules; and
…
The purposes of these Facility Rules
6 These Facility Rules have these purposes:
6.1to maintain and improve safety and quality of clinical care across all Facilities;
6.2to endeavour to ensure consistency of safety and quality clinical care across all Facilities;
6.3to define the relationship between Ramsay Health Care and its Accredited Health Professionals;
6.4to set out the expectations and obligations of Accredited Health Professionals; and
6.5to assist in compliance with relevant laws and standards.
7 It is a condition of accepting Accreditation, and of ongoing Accreditation, that the Accredited Health Professional understands and agrees that:
7.1these Facility Rules set out processes and procedures available to the Accredited Health Professional with respect to all matters relating to and impacting upon Accreditation; and
7.2no additional procedural fairness or natural justice principles will be incorporated or implied, other than processes and procedures that have been explicitly set out in these Facility Rules.
Compliance with these Facility Rules
8 Accredited Health Professionals and relevant Ramsay Health Care staff are required to comply with these Facility Rules.
…
Suspension of Accreditation
118The Facility Chief Executive Officer or Chief Operating Officer may, by notice in writing, suspend the Accreditation of an Accredited Practitioner (in part or in full and on whatever terms) if in the opinion of the Facility Chief Executive Officer or Chief Operating Officer:
…
118.4the Accredited Practitioner has breached a condition of Accreditation or otherwise failed to comply with these Facility Rules;
…”
Schedule 1 to the Facility Rules is headed “General Conditions of Accreditation” and includes the following material provisions:
“Schedule 1 - General Conditions of Accreditation
261 Accredited Health Professionals must:
Compliance
261.1comply with…these Facility Rules, policies and procedures established by the Facility and Ramsay Health Care;
261.2comply with directions of the Facility Chief Executive Officer and ARMC;[62]
[62]Pursuant to clause 9.10 of the Facility Rules, ARMC was defined to mean Australian Risk Management Committee, a committee established by the board of Ramsay Health Care Limited.
…
Availability
261.33 be available or deputise an appropriately qualified Accredited Health Professional for emergency calls to the Accredited Health Professional’s patients;
261.34participate in formal on call arrangements as required by the Facility,[63] be available when on call by telephone or as required to attend the Facility within a clinically acceptable time frame;
…
[63]For the purposes of this proceeding, “the Facility” was relevantly a reference to the hospital.
Safety and Quality
…
261.45report to the Facility incidents, complications, adverse events and complaints in accordance with the Facility policy and procedures and where required by the Facility Chief Executive Officer will assist with incident management, investigation and reviews (including root cause analysis and other systems reviews), complaints management and open disclosure;”
Schedule 2 to the Facility Rules is headed “Conditions associated with Accreditation Classifications” and includes the following material provisions:
“262Specialist Practitioners, Generalist Practitioners, Consulting Practitioners (where applicable) and Dentists:
262.1must only admit and Treat patients within their authorised Scope of Clinical Practice/Accreditation Classification/conditions of Accreditation;
262.2must accept that they are at all times responsible for the clinical care of patients admitted (or otherwise) under their care and must ensure that they are available to Treat those patients at all times, or failing that, that other arrangements as permitted by the Facility Rules are put in place to ensure the continuity of treatment and care for those patients;
262.3must not admit patients without an arrangement in place for another Accredited Practitioner of an appropriate Accreditation Classification and Scope of Clinical Practice to be available for emergency calls to the Accredited Health Professional’s patients in the event that they are unavailable or unable to be contacted;”
The relevance and impacts of fatigue upon obstetric work
Fatigue and its effects were relevant to an agreed issue in the proceeding, namely, the extent to which it would have been possible for Dr Price to maintain his obstetrics practice at the hospital, in compliance with the Facility Rules, despite not being part of a group roster arrangement with the defendants.[64]
[64]Agreed List of Issues in Dispute, [4]; Further Amended Statement of Claim, [39](h)], [39](k)], [40]; Defence to the Amended Statement of Claim, [39](h)], [39](k)], [40]; Reply, [1F].
Dr Milford was the lead author of a Royal Australian and New Zealand College of Obstetricians and Gynaecologists paper entitled “Fatigue Risk Management in Obstetric and Gynaecological Practice”, which had been most recently updated in May 2022. He had been instructed by Dr Price’s lawyers to answer a series of questions in relation to how obstetric surgeons manage fatigue and stress and the implications of stress and fatigue for the management of an obstetrician’s practice. One of the questions was, “[i]n your experience, what role, if any, do on-call rosters play in the management of stress and/or fatigue amongst obstetric surgeons?”. Dr Milford was not asked to provide an opinion upon the reasonableness of Dr Price’s decision to cease practice.[65] He emphasised that he had only been asked about fatigue and the potential effects of fatigue on practitioners generally.[66]
[65]Transcript T1-99, lines 25-30.
[66]Transcript T1-99, lines 30-34.
Dr Milford provided the following definition, and broad statement about, fatigue:[67]
“Fatigue is the subjective feeling of the need to sleep, an increased physiological drive to fall asleep and a decreased state of alertness. It has been demonstrated to impact upon both cognitive and psychomotor performance. Fatigue is an implicit part of medical practice, especially obstetric practice, where work outside of normal hours is commonplace. Managing fatigue is the practice of reducing the impact of fatigue upon patient safety and clinician wellbeing. It is therefore crucial that clinicians manage fatigue such that there is no impact on their wellbeing or upon patient safety.” (footnotes omitted)
[67]Exhibit 1, p 658 at [3.1].
Dr Milford considered that the effects of fatigue are not well understood.[68] He admitted that his opinions about the impacts of fatigue were necessarily expressed at a level of generality.[69] Dr Milford relevantly opined:[70]
“The state of the scientific literature is such that even with perfect information from that person about their subjective feeling of fatigue, it is impossible to draw conclusions that:
(a) substantiate that feeling in some objective way; or
(b) identify cause an [sic] effect with sufficient certainty to permit someone to act on it.”
[68]Exhibit 1, p 1245 at [90].
[69]Exhibit 1, p 1246 at [96].
[70]Exhibit 1, p 1247 at [100].
Dr Milford considered that fatigue can affect cognitive performance, motor performance and mood in variable quantities depending on the particular individual.[71] Age and the quality of sleep are recognised factors which can affect fatigue in an individual.[72] Whilst fatigue becomes more difficult to deal with as a doctor ages, that negative effect is counter balanced by an older doctor tending to be more experienced.[73] That is, whilst there are biological reasons why an older specialist might become more easily fatigued and tired, the greater experience of the older specialist tends to weigh against the risk of mistakes being made by the more experienced specialist.[74] Older specialists also tend to be more able to recognise when they are too fatigued to work.[75]
[71]Exhibit 1, p 1245 at [95].
[72]Exhibit 1, p 1246 at [97].
[73]Exhibit 1, p 1246 at [97].
[74]Transcript T1-98, line 40.
[75]Transcript T1-99, line 01.
Dr Milford distinguished between acute fatigue and another kind of fatigue which he described as “burn out”.[76] Acute fatigue contemplated extreme situations, such as where a practitioner may not have slept for three nights and that could give rise to concerns about clinical errors and adverse outcomes.[77] Burn out was more concerned with long periods of high intensity work with no adequate holidays or breaks.[78] Both Drs Milford and Keeping agreed that whilst it is theoretically possible for an obstetrician’s fatigue to have an adverse outcome for a patient, there are multiple safeguards built within most hospital systems which are intended to guard against errors and failures in the treatment of patients.[79] In this regard, the following exchange occurred during the course of Dr Milford’s cross-examination:[80]
“[Counsel] So if I adopt the figures we’ve just discussed about an average month and take a midpoint of 15 deliveries per month - so between 10 and 20 deliveries per month, and I’m talking about an obstetrician of Dr Price’s experience. So you can assume 25 years practice in obstetrics, and please assume that this notional person is diligent about taking rest breaks when they can between work and diligently trying to get enough sleep when they can and we’re dealing with around five unscheduled births per month. Do you expect it’s likely that a person in that particular circumstance would be at risk of adverse clinical outcomes outside the normal range of clinical performance? ---
[Dr Milford] So I think - in two parts, I think it’s unlikely but not impossible because you do not need many events to go against you such that you would end up with doing consecutive nights doing a significant amount of work. So I think it’s unlikely but still possible that you could be - be fatigued. I think that the chance of adverse events from that is small, largely because of how hospitals are set-up and run, not necessarily due to anything to do with the practitioner.
[Counsel] And is one of those elements that a doctor who finds themselves overwhelmed by work can ordinarily ask a colleague for help so that they can rest?---
[Dr Milford] That may be one, but it’s the simple nature of the health system with which you work with either health care professionals, and together, that means that the system is safe because there is a degree of checking and overlap between those clinicians.”
[76]Transcript T1-108, lines 19-24.
[77]Transcript T1-96, lines 35-45.
[78]Transcript T1-108, line 20.
[79]Exhibit 1, p 1244 at [82]-[88].
[80]Transcript T1-101, lines 15-36.
Drs Milford and Keeping accepted that better fatigue management is a benefit of a larger on-call group but is not necessarily one of the motivations for the formation of the groups.[81] Dr Keeping observed that “it is harder to remain motivated to continuing practising obstetrics without the all-inclusive backup offered by a cover roster”.[82]
[81]Exhibit 1, p 1240 at [52].
[82]Exhibit 1, p 1239 at [48].
The joint report expressed this conclusion:[83]
“In our view, while it is possible to practice alone, we would not want to be practicing alone for long. You want to have some freedom from work, and the stress of carrying your phone around at all times in case of an emergency would weigh on you. Dr Keeping sees this as being largely a desire to keep a good lifestyle outside of work to maintain your motivation at work. Dr Milford sees this as largely being a fatigue management tool.”
[83]Exhibit 1, p 1243 at [80].
I make the following findings about fatigue:
(a)Fatigue can affect cognitive and motor performance, and because of the nature of their work, obstetricians are susceptible to experiencing, and suffering from, fatigue.
(b)It is theoretically possible that an obstetrician’s fatigue might lead to an adverse outcome for a patient. However, that possibility is unlikely to eventuate because of the multiple safeguards built within hospital systems which are intended to guard against errors and failures in the treatment of patients.
(c)An obstetrician’s fatigue is more easily managed if the obstetrician is participating in a larger roster group.
(d)Whilst fatigue becomes more difficult to manage as a doctor ages, that difficulty is counter balanced by an older obstetrician tending to be more experienced and better able to recognise the effects of fatigue.
(e)As a consequence of the structure and certainty provided by a large roster, there is less chance of an obstetrician who is part of such a roster suffering burn out from long periods of high intensity work with no adequate holidays or breaks.
(f)It is possible for an obstetrician to practice alone but it is not preferable because of the risk of suffering fatigue, particularly burn out, and being part of a roster is a means of managing the risk of suffering burn out.
Relationships between Dr Price and the defendants in the lead up to the formation of the new group
Dr Price commenced practice as an obstetrician and gynaecologist in April 1996. From 11 April 1996, he had conducted a successful obstetrics practice at the hospital.
From the commencement of his practice at the hospital in or about August 2010, Dr Friebe rented a room from Dr Price. He also used the services of a practice management company[84] which provided administrative services required to run his practice. Although he was Dr Price’s tenant, Dr Friebe referred to “[b]eing in the same rooms”[85] and as having “shared rooms” with Dr Price. They shared a “close working relationship”[86] which involved working “very closely together”[87] and a “fairly intensive kind of patient sharing situation”.[88] Dr Friebe explained that situation relevantly as follows:[89]
“…the unwritten expectation was when I was away on holidays or Dr Price was away on holidays, we would cover each other’s practice - practice exclusively. So he would see all of my patients [sic] needed seeing while I was away, as opposed to a weekend cover, when it was only going to be one every couple of weeks.”
[84]VMORE Health (Virtual Medical Office).
[85]Transcript T4-12, line 23.
[86]Transcript T4-12, lines 33-35.
[87]Transcript T4-12, line 23.
[88]Transcript T4-12, line 27.
[89]Transcript T4-12, lines 23-26.
The relationship between Drs Friebe and Price appears to have been a stable and enduring professional relationship for some ten years.[90] From in or about 2020, Dr Friebe gradually decided that he should leave Dr Price’s rooms. He eventually moved to new rooms on 1 April 2021. I find that Dr Friebe’s decision that he should leave Dr Price’s rooms was fundamentally driven by his desire to “run [his] own show” from his own rooms.[91] He had been unhappy about some aspects of the administration or management of his practice from his existing rooms.[92] The prospect of moving to his own rooms meant that he would be able to control the running and operation of those new rooms.[93] It may be observed that by in or about 2020, Dr Friebe was well aware of instances of conflict and discord in Dr Price’s dealings with other doctors.[94] He had also been receiving complaints from some of his patients to the effect that Dr Price was rude and abrupt.[95] However, Dr Friebe did not regard these complaints from patients as being “a big deal”.[96] The complaints from patients and the fractious nature of Dr Price’s relationships with some other obstetricians did not provide the impetus for Dr Friebe’s decision that he should move rooms. His decision to move rooms was not a decision to leave group A. Despite having formed a desire to move rooms, throughout 2020 and until his decision to join the new group, Dr Friebe remained a member of group A. Dr Friebe regarded, and still regards, Dr Price as a competent obstetrician.[97]
[90]Exhibit 1, p 722 at [59] and p 723 at [70].
[91]Exhibit 1, p 724 at [86].
[92]Exhibit 1, p 724 at [87].
[93]Transcript T4-11, line 16.
[94]Transcript T4-10, lines 10-14; Transcript T4-9, line 06.
[95]Exhibit 1, p 725 at [89] and [90]; Transcript T4-12, lines 16-17.
[96]Transcript T4-13, line 04.
[97]Transcript T4-8, line 23.
In the lead up to the events of 2021, Dr Price tended to see Dr Kretowicz rarely but they would exchange text messages in a professional context.[98] Dr Kretowicz had never had any conflict with Dr Price at a personal or clinical level.[99] Her dealings with him at a professional level were cordial.[100] She regarded Dr Price as “a very good doctor”.[101] Numerous complaints had been made to her by other obstetricians about Dr Price.[102] Dr Price was said to have provided cover to other obstetricians and, whilst providing that cover, made negative comments to the patient about the patients’ care.[103] Dr Kretowicz regarded those complaints as scuttlebutt and had not formed a view about whether they were valid.[104] Dr Price had never criticised Dr Kretowicz to any of her patients.[105] During the course of morbidity and mortality meetings, Dr Kretowicz observed Dr Price on occasion to behave in a manner which she be regarded as “judgmental”.[106] She believed those meetings were intended to provide “a collegiate atmosphere and environment for discussion about adverse outcomes and complications”.[107] She observed that Dr Price engaged in “a certain pattern of behaviour during meetings”.[108] Whilst she had not formed any positive view as to whether the complaints made by others about Dr Price were valid, based on her own observations of him, she was wary of him.[109] She explained her state of mind as, having witnessed a certain pattern of behaviour, “it would be only human for me to form an opinion … that that might happen to me”. [110]
[98]Transcript T1-42, lines 01-10.
[99]Exhibit 1, p 1014 at [33].
[100]Transcript T3-48, line 20.
[101]Transcript T3-39, line 21.
[102]Exhibit 1, p 1015 at [45].
[103]Transcript T3-35, line 01; Transcript T3-38, line 01; Transcript T3-39, line 44.
[104]Transcript T3-41, line 05.
[105]Transcript T3-56, lines 30-32.
[106]Exhibit 1, p 1014 at [36].
[107]Transcript T3-44, line 47.
[108]Transcript T3-51, line 09.
[109]Exhibit 1, p 1015 at [44].
[110]Transcript T3-51, line 10.
Dr Sheahan had worked at the hospital since in or about 2000. Drs Price and Sheahan had been members of the initial roster group at the hospital. From in or around 2011, Dr Sheahan had limited interactions with Dr Price which tended to involve occasionally seeing each other at the hospital and chatting in the tearoom. Dr Sheahan regarded Dr Price as a skilled surgeon. They were not friends and had something of a strained personal history. Dr Sheahan regarded Dr Price as having “behaved towards [him] unpleasantly, on a number of occasions over a number of years”.[111] He had a strong preference that Dr Price should not treat his patients because he regarded Dr Price as a difficult and manipulative person.[112]
[111]Transcript T5-32, lines 22-25.
[112]Exhibit 1, p 863 at [154]
Prior to October 2020, Dr Price had very little to do with Dr Kho and had seen her on limited occasions during hospital meetings.[113] Dr Price and Dr Kho had different operating days and did not tend to have personal interactions at the hospital.[114] They would see each other at hospital meetings[115] but rarely spoke socially.[116] Dr Kho had never treated any of Dr Price’s patients and he had never treated any of her patients.[117] Dr Price had never asked Dr Kho to cover his patients.[118] Dr Price considered that Dr Kho “[didn’t] have any issue with [him]”.[119] Dr Kho regarded Dr Price as a good surgeon but had observed him to engage in what she considered to be “belittling and undermining behaviour” at meetings.[120] She gave evidence in chief that whilst she had always been willing to cover Dr Price’s patients if asked, she had “never wanted, Dr Price to treat any of [her] patients”.[121] Her evidence in this regard was not challenged in cross-examination.
[113]Transcript T1-41, lines 20-30.
[114]Transcript T1-41, lines 22-23.
[115]Transcript T1-41, line 29.
[116]Transcript T1-41, line 25.
[117]Exhibit 1, p 1071 at [12], [13] and [14].
[118]Exhibit 1, p 1072 at [28].
[119]Transcript T1-93, line 27.
[120]Exhibit 1, p 1072 at [21].
[121]Exhibit 1, p 1072 at [26] and [27].
Despite having been in a roster with Dr Kerridge for some years, Dr Price had no social interactions with her.[122] Their communications were essentially limited to text messages for patient handovers.[123] Whilst Dr Kerridge formed part of group A, she rarely, if ever, spoke to Dr Price.[124] They were not friends.[125] Their relationship was affected by “constant animosity”.[126] Dr Kerridge described group A as a “non-harmonious” group.[127] I accept her description as factually accurate. I find that, from in or about July 2015, there existed lingering antipathy between Drs Price and Kerridge which was largely attributable to the circumstances in which Dr Kerridge had been required by Dr Price to leave his rooms. Dr Price had hand delivered a lawyer’s letter to Dr Kerridge,[128] which advised her that her licence to occupy one of Dr Price’s rooms had been terminated and she was required to vacate possession within two months. Dr Kerridge then engaged a lawyer to provide her with advice.[129] Dr Kerridge described these events as “a low-point of my life”.[130] At the time, she had been qualified as an obstetrician for approximately one year and, as a result of being required to leave Dr Price’s rooms, had no staff, no equipment and no premises from which to conduct her practice.[131]
[122]Transcript T1-44, line 34.
[123]Exhibit 1, p 723 at [75].
[124]Exhibit 1, p 808 at [74].
[125]Transcript T1-45, line 24.
[126]Exhibit 1, p 810 at [93].
[127]Transcript T4-67, line 40.
[128]Exhibit 1, p 828.
[129]Exhibit 1, p 807 at [71].
[130]Exhibit 1, p 807 at [67].
[131]Ibid.
Dr Bajra had no social relationship with Dr Price and dealt with him on a limited basis in their professional dealings.[132] They did not provide cover for each other’s patients.[133] Drs Price and Bajra would on occasion have operating lists at the same time and Dr Bajra interpreted Dr Price’s conduct towards her on those occasions as being rude.[134]
[132]Transcript T6-36, lines 16-39.
[133]Transcript T6-36, line 37.
[134]Exhibit 1, p 981 at [33].
Dr Price had assisted Dr Bajra in relation to complications which occurred during surgical procedures undertaken by Dr Bajra on 21 November 2012 and 18 August 2013. On 22 August 2013, Dr Price sent an email to Ms Whittaker in which he noted that he had “politely suggested” to Dr Bajra that “requiring the regular assistance of other consultants is inconsistent with a scope of practice listing Complex Pelvic Surgery and High Risk Obstetrics”.[135] The email also noted that Dr Price had suggested to Dr Bajra that she might review the scope of her practice “in order to safeguard themselves [sic] and patients”.[136] Dr Price sent a further email to Ms Whittaker on 22 August 2013.
[135]Exhibit 1, p 382.
[136]Ibid.
Mr Lytras prepared his report with the objective of attempting to place Dr Price in the financial position he would reasonably have been in, if not for the defendants’ conduct. He adopted what he described as a “simple calculation equation” involving “lost income minus costs saved”. The period of time the subject of the calculation was from 14 June 2021 until mid-January 2027 being the date when Dr Price claimed that he would have ceased obstetric practice at the hospital in the usual course without the defendants’ conduct having occurred.
The material assumptions relevant to the assessment of quantum made by Mr Lytras may be relevantly set out as follows:
(a)Dr Price ceased taking new obstetric patients at the hospital on 14 June 2021 and ceased providing obstetric services entirely on 11 January 2022.
(b)Given that Dr Price intended to retire within approximately five years’ time, it was not feasible for him to commence practice at another hospital as it takes years to establish and build an obstetrics practice.
(c)Dr Price’s Sunshine Coast practice was nominal compared to his practice at the hospital and limited to the provision of gynaecological services.
(d)The Sunshine Coast practice suffered as a result of Dr Price having to be located in Brisbane fulltime whilst he was winding up his obstetric practice at the hospital without any cover.
(e)The closure of Dr Price’s obstetrics practice would limit the acquisition of new clients in Dr Price’s gynaecological practice.
There was very limited cross-examination of Mr Lytras. Having read Mr Lytras’ report and considered his oral evidence, I formed the view that he had undertaken a thorough and considered analysis and that the opinions he expressed in his report were entirely reasonable. I accept Mr Lytras’ calculations as contained in the amended joint report.[451]
[451]Exhibit 12, p 16.
The opinions expressed by Mr Lytras did not reflect or account for extra income received as a result of Dr Price having worked in Gladstone from October 2022 after the preparation of Dr Lytras’ report.[452] As to that work in Gladstone, I make the following findings:
(a)the work commenced in October 2022;[453]
(b)from October 2022 until around early January 2023 he worked “almost every weekend”;[454]
(c)after that, he worked three out of four weekends until June 2023;
(d)Dr Price estimates that, in the six months from October 2022, he worked in Gladstone “24 out of 37 weekends”; [455]
(e)since June 2023, he has worked every second weekend;
(f)he intended to finish that work on the 25th of December 2023;[456] and
(g)he earned $9,000 per weekend.[457]
[452]Transcript T2-9, lines 34-44.
[453]First Affidavit of Dr Price, [131]; read with Transcript T2-9, line 02 - Transcript T10, line 44.
[454]Transcript T2-10, line 44; First Affidavit of Dr Price, [131].
[455]Transcript T2-10, lines 48-49.
[456]Transcript T2-10, line 01.
[457]Transcript T2-10, line 38.
Having regard to that evidence, I find that Dr Price replaced income of $297,000 in the 2023 financial year and a total of $117,000 in the 2024 financial year.
I consider that it is appropriate to adjust Mr Lytras’ calculations as set out in the redacted joint report as follows:
(a)Reducing the 2023 loss figure from $485,606 to $188,606.
(b)Reducing the 2024 loss figure from $477,369 to $360,369.
(c)Reducing the total loss before discount, from $2,379,655 to $1,965,658.
I accept Mr Lytras’ opinions as expressed at paragraph 54(e) of the joint report. I consider it appropriate to adopt a discount rate in respect of future loss amounts relating to contingencies and have adopted a rate of 5 percent. Putting aside any questions of interest, had Dr Price otherwise been successful in establishing the elements of his causes of action, I would have assessed the loss or damage suffered by him at $1,577,444.45.
Orders
1.Judgment for the defendants.
2.I will hear the parties as to costs.
1
31
3