PW v Ms
[2015] WASCA 116
•9 JUNE 2015
PW -v- MS [2015] WASCA 116
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 116 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:70/2014 | 11 MARCH 2015 | |
| Coram: | McLURE P NEWNES JA MURPHY JA | 9/06/15 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PW MS SS |
Catchwords: | Tort Injurious falsehood Whether appellant had established economic loss Turns on own facts |
Legislation: | Nil |
Case References: | Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PW -v- MS [2015] WASCA 116 CORAM : McLURE P
- NEWNES JA
MURPHY JA
- Appellant
AND
MS
First Respondent
SS
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
Citation : PW -v- MS [No 3] [2014] WASC 202
File No : CIV 1026 of 2011, CIV 1027 of 2011
Catchwords:
Tort - Injurious falsehood - Whether appellant had established economic loss - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : No appearance
Second Respondent : No appearance
Solicitors:
Appellant : In person
First Respondent : No appearance
Second Respondent : No appearance
Case(s) referred to in judgment(s):
Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388
1 JUDGMENT OF THE COURT: This is an appeal from a judgment of Le Miere J who dismissed the appellant's claim for injurious falsehood on the ground that the appellant had failed to prove any economic loss as a result of the false statements made by the respondents. The appellant also seeks to adduce additional evidence on the appeal.
2 The appellant appeared in person on the appeal, as he had below. The respondents appeared in person below but did not take part in the appeal.
We would dismiss the appeal for the reasons which follow.
Background
3 The appellant is the father of a child named P and is the former de facto partner of the first respondent, M, who is the mother of P. The second respondent, S, is the mother of M and grandmother of P.
4 The appeal arises out of two actions for injurious falsehood commenced on 11 January 2011 by the appellant, one against M and the other against S.
5 In action CIV 1026, the appellant alleged that M had maliciously made false statements about him to Dr T, P, and doctors at the ** Health Campus respectively to the effect that he was sexually and physically abusing and neglecting P. The appellant alleged that Dr T republished the false statements to the appellant and his then partner, Ms G; to the Department of Child Protection; and to Princess Margaret Hospital Child Protection Unit. M denied that she made the alleged statements or that she did so maliciously and did not admit that Dr T republished the alleged statements.
6 The appellant said that he first became aware of the statements M had made to Dr T on or about 21 February 2008, when Dr T told him and Ms G of them.
7 In action CIV 1027, the appellant alleged that S had maliciously accused him, in the presence of his mother, and of P, M and a neighbour, of molesting and sexually abusing P. S denied that she made the statement or that she did so maliciously.
8 In each action, the appellant claimed that the false statements had caused him to suffer, or contributed to him suffering, a psychiatric condition known as post-traumatic stress disorder, which had incapacitated him for work and caused him to suffer a loss of salary.
9 The actions were heard together and the evidence in one was evidence in the other.
The findings of the primary judge
The claim against M
10 The appellant alleged that M had made false statements about him on four occasions, on three of those occasions to Dr T, a general practitioner, in the presence of P. The first occasion on 19 June 2007 when, the appellant alleged, M said to Dr T words to the effect that the appellant was sexually abusing P. The second occasion was on or about 24 September 2007 when, the appellant alleged, M said to Dr T words to the effect that the appellant was sexually and physically abusing P. The third occasion was on or about 27 February 2008 when, the appellant alleged, M said to Dr T words to the effect that the appellant was neglecting and abusing P.
11 The appellant alleged that, on or about 24 September 2007, Dr T republished the statements made on the first two occasions to the Department of Child Protection.
12 The fourth occasion was on or about 12 September 2007 when, the appellant alleged, M had made statements, in the presence of P, to doctors and staff at the ** Health Campus to the effect that P was not safe with the appellant, that P had injuries involving redness to the legs and genital area caused by the appellant, and that P had suffered injuries from abuse by the appellant. The appellant alleged that those words meant that P was not safe in his care, he had sexually abused P, and had abused and injured P. The appellant further alleged that the statements were republished by hospital staff to the Princess Margaret Hospital Child Protection Unit by way of a referral to that unit.
13 In respect of the first occasion, the primary judge was not satisfied that M said words to the effect alleged, but found that she had said to Dr T words to the effect that she was worried that P may have suffered sexual abuse or neglect by the appellant [32]. His Honour concluded that those words did not bear the meaning alleged by the appellant but a less serious meaning, namely, that there were reasonable grounds to suspect that the appellant was sexually abusing P [48].
14 In respect of the second occasion, the primary judge found that M had said to Dr T words to the effect that she was concerned for P's welfare when P visited the appellant and that P had bruises on her knee after visiting the appellant [36]. His Honour concluded that those words did not bear the meaning alleged by the appellant but the (less serious) meaning that there were reasonable grounds to suspect that the appellant has physically abused P and her welfare was at risk when she visited him [49].
15 In respect of the third occasion, the primary judge found there was no evidence that M said anything to Dr T to the effect that the appellant was neglecting and abusing P [41].
16 In respect of the fourth occasion, the primary judge concluded that M had not said the words alleged but that she had said words to the effect that she was concerned about the safety of P with the appellant and concerned that the appellant may have caused non-accidental injuries to P [45]. His Honour concluded that those words did not bear the meaning alleged by the appellant but the (less serious) meaning that there were reasonable grounds to suspect that the appellant has sexually and physically abused his daughter [50].
17 His Honour did not, however, accept the appellant's allegation that the statements made by M on the first, second and fourth occasions in the presence of P had caused P to behave towards the appellant in a distressed and agitated way between September 2007 and February 2008 [62].
18 The primary judge found that, on 21 February 2008, Dr T told the appellant and Ms G that M had said to Dr T that she (M) was concerned about the safety of P with the appellant and concerned that the appellant may have caused non-accidental injuries to P. His Honour did not, however, accept the appellant's allegation that Dr T had republished M's statements to the Department of Child Protection and Princess Margaret Hospital Child Protection Unit.
19 The primary judge found there were no reasonable grounds for M to suspect or believe that the appellant had sexually or physically abused, or had neglected, P and noted that in her evidence M said she did not believe he had. His Honour concluded that the statements made by M were false [51], and that they were made maliciously [67].
The claim against S
20 The primary judge found that, on 1 January 2008, S said in a raised voice in the presence of the appellant, his mother, P and a neighbour, words which, in their natural and ordinary meaning, meant that the appellant had sexually abused P [59], [60]. His Honour concluded that the statement was false and that S had made it maliciously, knowing it to be untrue [68].
Damage
21 The primary judge noted that in order to make out a claim of injurious falsehood it was necessary for the appellant to prove that he had suffered economic harm as a result of the false statements [69]. His Honour found that the appellant had failed to do so.
22 The appellant's case at trial was that, prior to learning of the statements made by M and S, he had provided services to three companies, which we will refer to as MA, Resources, and Minerals. Those companies were engaged in the mining industry and were controlled by the appellant. The companies paid another company (which we will refer to as Holdings) for the appellant's services and Holdings paid the appellant. Holdings was also controlled by the appellant and was the trustee of the appellant's family trust.
23 The appellant said that he managed MA, Resources, and Minerals until 1 January 2008 when S shouted at him that he had sexually abused P. As a result of that statement, and of subsequently learning of the statements by M to Dr T, he had suffered post-traumatic stress disorder and was unable to work. As a consequence, MA, Resources, and Minerals had collapsed.
24 The primary judge noted that the only evidence that the appellant suffered from post-traumatic stress disorder was that of Dr B, a general practitioner first consulted by the appellant in August 2010 [77]. At that time, the appellant had described symptoms of post-traumatic stress disorder starting on 7 August 2007. Dr B had access to medical notes which showed that the appellant had presented on 7 August 2007 following an assault and since that time had experienced ongoing symptoms of distress consistent with post-traumatic stress disorder [75]. Dr B did not herself make the diagnosis of post-traumatic stress disorder but based it on the diagnosis of other doctors and psychologists [76]. Dr B had thought that the appellant's post-traumatic stress disorder had come about as a result of the assault on him in August 2007 and threats made by M's ex-partner. It was not until 4 February 2011, after the appellant had commenced the proceedings against M and S, that he informed Dr B of the statements by M that the appellant had abused P and he did not tell Dr B at all about the statement by S [77], [79].
25 His Honour gave no weight to the opinion Dr B expressed in evidence that the appellant suffered post-traumatic stress disorder partly as a result of the statements by M and S. He gave it no weight because Dr B was a general practitioner of two to three years' standing with no other relevant expertise or experience; Dr B did not make the original diagnosis of post-traumatic stress disorder but had effectively adopted the diagnosis of others; Dr B said the appellant had described suffering symptoms consistent with post-traumatic stress disorder since August 2007; and Dr B did not accept a proposition put to her by the appellant at trial that the condition he suffered from as a result of the 2007 assault would have been temporary [78].
26 The primary judge also found that the appellant did not cease work as a result of the statements by M and S. His Honour found that the appellant had been incapacitated for work since 7 August 2007 and had stopped working in August 2007. He rejected the appellant's evidence that he had returned to work in 2007 and stopped again only after S's allegation on 1 January 2008, as that evidence was inconsistent with a medical certificate, dated 7 September 2010, which certified that the appellant had been unfit for work due to post-traumatic stress disorder and depression from 7 August 2007 to 30 June 2010, and with the appellant's declaration to the Child Support Agency that he had been medically incapacitated and unable to work from 7 August 2007 to 30 June 2010 [80].
27 The primary judge went on to find that even if, contrary to the above finding, the statements by M and S had contributed to the appellant suffering post-traumatic stress disorder, the appellant would in any event have been incapacitated and unable to work as a result of the disorder which had commenced in August 2007 [81].
28 The primary judge further found that the appellant had failed to establish any loss of income as a result of the falsehoods. The appellant's claim that he had lost income from Holdings was inconsistent with his income tax assessments. Whilst the appellant's income tax assessments for the financial years ended 30 June 2006 and 30 June 2007 showed his taxable income to be $41,370 and $33,549 respectively, his notices of assessment for the financial years ended 30 June 2008, 2009 and 2010 each showed his income to be nil. That is, they showed that the appellant had received no income after 30 June 2007. His Honour noted that MA, Resources, and Minerals were placed in administration on 1 August 2007. The false statement by S was made in January 2008 and the appellant did not learn of the statements by M until February 2008, more than five months later. The primary judge concluded that the failure of those companies and Holdings was not caused or contributed to by the statements by M and S [83].
29 As the tort of injurious falsehood is not actionable without proof of economic loss, his Honour dismissed the appellant's action [85].
Grounds of appeal
30 The grounds of appeal are lengthy and not entirely easy to understand. They are, however, in substance that the primary judge erred in:
1. failing to issue a warrant for Dr T to be brought before the court when Dr T did not attend at trial to give evidence pursuant to a subpoena issued on 27 August 2013 (ground 1);
2. refusing to admit into evidence a transcript of Dr T's evidence in proceedings in the Family Court on 9 September 2009 as Dr T's evidence in the action (grounds 2, 5 and 6);
3. refusing to permit Ms G to give evidence at the trial of statements made by Dr T (ground 3);
4. failing to make a finding that M had committed perjury at the trial (ground 4);
5. finding that the records of ** Health Campus did not contain references to allegations by M that the appellant was sexually abusing P and in inferring that no such allegations had been made by M to staff there (ground 7);
6. finding that M had not made statements in the terms alleged by the appellant to Dr T on 19 June 2007 (ground 8);
7. finding that M had not made statements in the terms alleged by the appellant to Dr T on or about 24 September 2007 (ground 9);
8. finding that P's reaction to the appellant between September 2007 and February 2008 was not a result of the statements made by M and S (ground 10);
9. findingthat M had not made statements to Dr T in the terms alleged by the appellant and that Dr T had not repeated such statementsto the appellant and Ms G on 21 February 2008 (ground 11);
10. not accepting Dr B's evidence that the appellant had suffered from post-traumatic stress disorder as a result of the statements made by M and S (ground 12);
11. finding that the appellant did not suffer post-traumatic stress disorder as a result of the statements made by M and S (ground 13);
12. finding that the appellant suffered no economic loss as a result of the statements made by M and S: the appellant contended the primary judge should have found that the appellant was gainfully employed by Holdings until 11 March 2008 when he gave up work as a result of post-traumatic stress disorder caused by the statements made by M and S (grounds 14, 15);
13. that, if no economic loss was proved, his Honour should have awarded the appellant punitive or other damages (ground 16).
Disposition of the appeal
31 The appellant (correctly) does not challenge his Honour's finding that in order to establish a cause of action in injurious falsehood the appellant was required to prove that he suffered economic loss as a result of one or more of the falsehoods. That is settled law: see Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388; Fleming's The Law of Torts (10th ed, 2011) [30.250].
32 The action failed because the primary judge found, first, that if the appellant was suffering from post-traumatic stress disorder, it was not caused or contributed to by the statements made by M and S; and secondly, that even if those statements had caused or contributed to the appellant's post-traumatic stress disorder, they had not caused the appellant to suffer any economic loss because he had been incapacitated for work, and had ceased to earn an income, before he became aware of the statements.
33 Unless the appellant can succeed in demonstrating that his Honour was in error in respect of both of those findings, the appeal must fail, with the result that the other grounds of appeal fall away. In our opinion, the appellant has failed to establish error in respect of either finding. The evidence that since August 2007 the appellant had suffered from symptoms of post-traumatic stress disorder which had incapacitated him from working was compelling.
34 In about July 2010, the appellant made an application to the Child Support Agency to change its child support assessment for the period 7 August 2007 to 1 September 2010. In turn, M made her own application to change that assessment. In response to M's application, the appellant completed a document entitled 'Response to a Cross-Application' (exhibit 105) which he signed on 30 August 2010 and submitted to the Agency. As the primary judge noted, in it the appellant declared the following statements to be true and correct:
(1) As from 07/08/07 to 30/06/10 I have been medically incapacitated [and] not able to work.
(2) As from 01/07/10 to 01/09/10 (inclusive) I have been medically incapacitated [and] not able to work.
(3) [The appellant] nor any legal entity I have been involved with has had or received any financial support from companies or trust since 2007 … as the companies were placed into administration/liquidated 01/08/07.
35 The primary judge also referred to a medical certificate dated 7 September 2010 (exhibit 103), which was prepared on a Centrelink form by the appellant's general practitioner. The appellant said in cross-examination that the medical certificate had been sent to Centrelink (ts 206). The medical certificate stated that the appellant had been suffering from 'PTSD' (which we infer is an initialism for post-traumatic stress disorder) and depression since 7 August 2007 and that in the doctor's opinion the appellant had been unfit for work from 7 August 2007 to 30 June 2010.
36 That was also consistent with the medical history recorded in the notes to which Dr B had access. Dr B said that those notes described the appellant having presented on 7 August 2007 following an assault and since that time having presented 'on multiple occasions' with on-going symptoms consistent with post-traumatic stress disorder (ts 265, 270). Dr B said she considered that the appellant's symptoms fitted the criteria for post-traumatic stress disorder (ts 275). Dr B rejected a proposition put to her by the appellant that the condition from which he suffered as a result of the assault was of a temporary nature that would have resolved if he had 'taken time off for a couple of months' (ts 271).
37 As mentioned earlier, the primary judge did not give any weight to Dr B's evidence that the statements by M and S had contributed to the appellant suffering post-traumatic stress disorder. In our view, it was open to his Honour to give it no weight, for the reasons he gave. As his Honour pointed out, Dr B was a general practitioner of two to three years' experience with no relevant specialist expertise; Dr B had been first consulted by the appellant on 5 August 2010 and the diagnosis of post-traumatic stress disorder was one that she had effectively adopted from the diagnosis of previous doctors and psychologists; the appellant had since August 2007 been describing symptoms which Dr B described as consistent with post-traumatic stress disorder; Dr B did not agree that the effect of the assault in August 2007 would have been temporary; Dr B had not become aware of the statements made by M until 4 February 2011; and Dr B was unable to say to what extent the statements by M and S had contributed to the appellant suffering post-traumatic stress disorder (ts 272).
38 The appellant's financial records were also consistent with the appellant having ceased to earn an income after August 2007 and inconsistent with his claim that as a result of the respondents' falsehoods he had lost income that he would otherwise have earned from Holdings. The appellant sought at trial to explain his nil tax assessment for the financial year ended 30 June 2008 on the basis that he had made a salary-sacrifice of the income to which he would have been entitled from Holdings for services provided to MA, Resources and Minerals, in order that Holdings could pay his lawyer's fees in Family Court proceedings in 2008 and 2009. A similar contention is raised in the grounds of appeal, the appellant asserting, in effect, that the primary judge erred in failing to take that into account.
39 We do not consider that the primary judge failed to have regard to that explanation. He simply did not accept it. His Honour rejected the appellant's evidence that he had worked after August 2007. Moreover, the appellant's assertion of some form of salary sacrifice - the details of which were inadequately explained in evidence - is plainly contrary to the statements referred to above to the effect that since August 2007 he had had no income or income earning capacity. It was also inconsistent with similar statements in a letter dated 30 August 2010 to the Child Support Agency (exhibit 106). In that letter, the appellant provided information in support of his application to change the child support assessment for the period 7 August 2007 to 1 September 2010. The information included the following statement:
Williams Family Trust structure inclusive of ASIC searches showing companies and interests placed into Administration 1st August 2007 whereby no financial assistance ever received as suggested by CSA.
40 There was also attached to the letter a copy of the appellant's application to change the child support assessment, which in relation to the appellant's income included the following:
Unemployed since 2007 to 2010 with nil income or capacity (original emphasis).
41 The clear import of those statements was that the appellant's income from the companies had ceased (at the latest) when they were placed into administration in August 2007 and that his income earning capacity had ceased at about the same time.
42 In our view, it was clearly open to the primary judge to find, as he did, that if the appellant suffered from post-traumatic stress disorder it predated the falsehoods by M and S and that, in any event, the appellant had failed to establish that their falsehoods had caused him any economic loss. Grounds 13, 14 and 15 of the grounds of appeal should be dismissed.
43 Ground 16 is misconceived. In order to be entitled to a remedy it was necessary for the appellant to make out a cause of action for injurious falsehood. To do that it was necessary for the appellant to establish economic loss as a result of one or more of the falsehoods. He failed to do so. This ground should be dismissed.
44 It follows that the primary judge was correct to find that the appellant had failed to establish a cause of action in injurious falsehood and the appeal must be dismissed.
45 However, for completeness it is appropriate to say something about the other grounds of appeal. They can be sufficiently dealt with as follows.
46 Ground 1 has no basis. The appellant had caused a subpoena to be issued to Dr T, which Dr T did not answer. When the appellant sought to have a warrant issued by the primary judge to bring Dr T before the court, the question arose whether Dr T had been given sufficient conduct money when served with the subpoena, and whether, after further conduct money had been provided, she had been given sufficient notice of the hearing. After an exchange with the primary judge regarding the issue of conduct money and the adequacy of the notice given to Dr T, the appellant said he did not seek to call Dr T (ts 285).
47 Ground 2 relates to an attempt by the appellant to tender, over the respondent's objection, a transcript of the evidence Dr T had given in the Family Court as Dr T's evidence in the proceedings below. The primary judge ruled that the transcript was inadmissible on that basis (ts 156). His Honour was plainly correct. This ground cannot succeed.
48 As to ground 3, on the fourth day of trial the appellant sought leave to call his partner, Ms G, to give evidence. As Ms G had not provided a witness statement in accordance with the pre-trial directions, the appellant required leave to call her. The primary judge refused leave on the ground that insofar as the appellant sought to adduce Ms G's evidence on factual matters, that evidence was simply corroborative of other evidence the appellant had already adduced, and insofar as it was in the nature of expert evidence (based on Ms G's professional skills) it would be unfair to the respondents, the substance of it not having been served on them and accordingly the respondents not having had an opportunity to obtain their own expert opinion. There is nothing to suggest that his Honour erred in the exercise of his discretion in refusing leave. This ground cannot succeed.
49 As to ground 4, it was not incumbent upon the primary judge to determine whether M had committed perjury and such a finding was irrelevant to the proper determination of the appellant's claim. This ground cannot succeed.
50 In relation to grounds 5 to 11, the findings made by the primary judge were findings that were open to him on the evidence and no error has been shown. These grounds cannot succeed.
51 The appellant sought leave to adduce additional evidence on the appeal in the form of a number of documents. We would refuse leave. The documents the appellant seeks to rely upon were available at the time of trial and the appellant has not explained why he did not seek to adduce them at trial. In fact, one of the documents, a valuation by consulting geologists in 2005 of certain gold exploration properties overseas owned by a company apparently associated with Resources, appears to be a document that the primary judge refused to admit into evidence on the ground that it was expert evidence of which no prior notice had been given to the respondents. In any event, having considered the documents in question, we are satisfied that, to the extent they may have been admissible, they could not have altered the outcome.
52 Finally, the primary judge concluded that in view of his finding that the appellant had not suffered any economic loss it was unnecessary to consider whether the statements complained of, not being statements of or concerning the appellant's goods or business, were capable of giving rise to the tort of injurious falsehood [16] - [17]. In view of the conclusion we have reached on the appeal, it is again unnecessary to consider it.
Conclusion
53 We would dismiss the appeal.
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