Sklavos v Australasian College of Dermatologists
[2016] FCA 179
•2 March 2016
FEDERAL COURT OF AUSTRALIA
Sklavos v Australasian College of Dermatologists [2016] FCA 179
File number(s): NSD 992 of 2013 Judge(s): JAGOT J Date of judgment: 2 March 2016 Catchwords: HUMAN RIGHTS – Discrimination – Disability Discrimination Act 1992 (Cth) – direct and/or indirect discrimination – whether adjustments sought reasonable or imposed undue hardship – whether applicant treated less favourably – identification of relevant comparator – whether less favourable treatment upon basis of disability
CONTRACTS – construction – incorporation of terms –whether contractual in nature – terms implied by law – whether breach of contract established
NEGLIGENCE – Civil Liability Act 2002 (NSW) – duty of care – special relationships and duties – whether duty to prevent psychiatric injury – standard of care – whether precautions could have been taken in disciplinary process – causation – pre-existing likelihood of developing injury.Held: Application dismissed
Legislation: Australian Human Rights Commission Act 1986 (Cth) s 3, 46PO
Disability Discrimination Act 1992 (Cth) ss 4-6, 11, 12, 19, 21A, 22, 27, 29, 32
Health Insurance Act 1973 (Cth) s 3D
Health Insurance Regulations 1975 (Cth) r 4, sch 4
Disability Standards for Education 2005 paras 5.2, 6.2
Civil Liability Act 2002 (NSW) ss 5-5E, 11A-14, 16, 27-29, 31, 32
Cases cited: Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649
Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121
CGU Workers Compensation (NSW) Ltd v Garcia [2007] NSWCA 193; (2007) 69 NSWLR 680
Commonwealth Bank v Human Rights & Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 2; (2002) 209 CLR 95
Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62
James v Royal Bank of Scotland [2015] NSWSC 243
Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd [2015] FCAFC 127
Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
New South Wales v Seedsman [2000] NSWCA 119; (2000) 217 ALR 583
New South Wales v Spearpoint [2009] NSWCA 233
Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; (2014) 231 FCR 403
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596
Shahid v Australasian College of Dermatologists [2008] FCAFC 72; (2008) 168 FCR 46
State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220
Wicks v State Rail Authority of New South Wales [2010] HCA 22; (2010) 241 CLR 60
Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378
Dates Of Hearing: 26 – 30 October 2015
3 – 5 November 2015
9 November 2015Date of Last Submissions: 1 December 2015 (Applicant) Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of Paragraphs: 441 Counsel for the Applicant: Mr I Neil SC with Mr P Moorhouse Solicitor for the Applicant: Petrine Costigan Lawyers Counsel for the Respondents: Mr J McLeod Solicitor for the Respondents: Kennedys (Australasia) Pty Ltd ORDERS
NSD 992 of 2013 BETWEEN: ANGELO SKLAVOS
Applicant
AND: THE AUSTRALASIAN COLLEGE OF DERMATOLOGISTS
Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
2 MARCH 2016
THE COURT ORDERS THAT:
1.The amended originating application dated 9 September 2015 be dismissed.
2.The applicant pay the respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
1 BACKGROUND
[1]
1.1 Factual context – a brief overview
[1]
1.2 Claims
[23]
2 THE DISABILITY DISCRIMINATION CLAIMS
[28]
2.1 The claim in the context of the statutory provisions
[28]
2.2 Specific phobia – the evidence
[44]
2.3 Specific phobia - discussion
[61]
2.4 Direct discrimination
[84]
2.4.1 Overview of Dr Sklavos’s claims
[84]
2.4.2 Adjustment One
[86]
2.4.3 Adjustment Two
[129]
2.4.4 Adjustment Three
[152]
2.4.5 Conclusions
[156]
2.5 Indirect disability discrimination
[157]
2.5.1 Overview of Dr Sklavos’s claims
[157]
2.5.2 Elements of the statutory provisions
[159]
2.5.3 Conclusions
[205]
2.6 Consequences
[206]
2.7 Remedies
[212]
3 THE EXAMINATIONS
[217]
3.1 Introduction
[217]
3.2 Dr Sklavos’s propositions
[221]
4 THE CONTRACT CLAIMS
[258]
4.1 Dr Sklavos’s case
[258]
4.2 Existence of a contract
[262]
4.3 Express contractual terms
[268]
4.3.1 The support and communicate term
[275]
4.3.2 The bullying and harassment term
[279]
4.3.3 The harassment and discrimination free term
[282]
4.3.4 The diligence, honesty and respect term
[291]
4.3.5 The fairness term
[294]
4.3.6 The fair assessments term
[297]
4.3.7 The no need to repeat written examination term
[300]
4.3.8 The fair dealing in relation to disciplinary matters term
[307]
4.3.9 The prevent bullying term
[312]
4.3.10 The commitment to training term
[316]
4.3.11 The no reasonable barriers to assessment term
[319]
4.4 Implied contractual terms
[323]
4.5 Breach of contract?
[332]
4.5.1 Clinic list conduct
[332]
4.5.2 The requirement to re-sit the written examinations
[381]
4.5.3 The assessment of Dr Sklavos’s performance in the 2010 written examination
[384]
4.5.4 The alleged failure to make reasonable adjustments
[385]
4.5.5 The alleged failure to assist Dr Sklavos
[386]
4.6 Conclusions
[387]
5 NEGLIGENCE
[388]
5.1 The claim
[388]
5.2 Statutory provisions and principles
[389]
5.3 Duty of care
[403]
5.4 Alleged breaches of the duty of care
[411]
6 DAMAGES AND COMPENSATION
[427]
7 CONCLUSIONS
[441]
1. BACKGROUND
1.1 Factual context – a brief overview
Sometimes the single-minded pursuit of a worthy goal can involve a price which is too high. This is one such case.
Angelo Sklavos, the applicant, is a medical doctor. While still an undergraduate, he started to focus his mind on becoming a specialist dermatologist. After graduating, he undertook work overseas focused on dermatology. He returned from overseas determined to become a dermatologist. He became registered as a medical practitioner in Australia in January 1994. To become a dermatologist in Australia he needed to gain entry into the Australasian College of Dermatologists (the College), as it is the only body in Australia which has the capacity to confer Fellowship on a person so that they may be recognised and practice as a dermatologist. The College’s training program (initially a five, and then a four year program) is accredited by the Australian Medical Council (the AMC) for this purpose.
Between 1994 and 1996, Dr Sklavos undertook work as an intern, then resident, and then registrar in the New South Wales public hospital system, which is required before any medical practitioner may apply to the College for entry as a trainee.
Not every medical practitioner who applies to the College is admitted as a trainee. The College has to make arrangements with hospitals for training purposes and only admits the number of trainees for whom it can obtain placements in the hospital system. Trainees are selected based on an examination and interview process. In 1996 and 1997, Dr Sklavos applied for entry but failed the examination. He tried again in 1999 and passed the examination but did not gain entry as a trainee. In 2000, believing it would assist him to gain admission as a trainee of the College, he enrolled at the University of Sydney as a doctoral (PhD) candidate, his proposed thesis relating to melanoma.
Between 1999 and 2006, Dr Sklavos applied for admission as a trainee of the College in every year but was unsuccessful. He supported himself through part-time work as a general practitioner and also undertook such other dermatology related work as he could, which he thought might increase his chances of gaining entry to the College as a trainee.
From early on in his dealings with the College, Dr Sklavos considered that he was disadvantaged compared to other candidates because he did not have connections in dermatology. His perception of his disadvantage was reinforced by his repeated failure to obtain admission to the training program. At the same time, he perceived that he had to complete his PhD in order to obtain entry as a trainee when other candidates did not face this hurdle. This also caused him to develop a sense of grievance against the College. He also found his PhD supervisor difficult and unhelpful.
While he completed his PhD thesis in 2006 he was not awarded his PhD until 2009 because the examiner required amendments which Dr Sklavos was unable to complete due to family obligations. In the meantime, however, he was finally admitted as a trainee of the College in its 2007 program. He thus became a trainee feeling aggrieved at the College for, as he saw it, making decisions based on connections and not merit, for a lack of transparency in the admissions process, and for being required to complete his PhD before he could obtain admission when he felt that this was not a requirement imposed on other candidates.
On admission as a trainee, Dr Sklavos felt euphoric but also anxious. He was euphoric to have achieved his goal but anxious the College would not treat him fairly based on what he perceived he had had to go through in the admissions process.
Dr Sklavos started to perceive things going wrong with his training in his second year, 2008. Despite his concerns, he passed all requirements that year. However, things went very wrong for Dr Sklavos from 2009. In early 2009, Dr Relic, his supervisor at the John Hunter Hospital, Newcastle, where Dr Sklavos had worked during 2008 as part of the College’s system for rotations through training positions, saw a patient at the Hospital clinic, CM. CM’s file contained a letter written by Dr Sklavos to CM’s general practitioner referring to CM having attended the clinic in May 2008. Dr Relic was informed by CM’s mother that CM, a child, had been scheduled to attend the Clinic in 2008 on a number of occasions but had not done so, 2009 being the first time CM had attended the Clinic. This, and the College’s subsequent investigation and dealings with Dr Sklavos about this including the College’s referral of Dr Sklavos to the New South Wales (NSW) Medical Board, is referred to as the “clinic list incident” or “conduct”. Dr Sklavos’s concerns about and sense of grievance against the College increased significantly during this period.
Things continued to go wrong for Dr Sklavos in late 2009 when he was assigned to a training position at the Royal North Shore Hospital and required to undergo an interview before his placement would be accepted. The supervisor at the Royal North Shore Hospital had heard of the clinic list incident and was not willing to have Dr Sklavos as a trainee without first interviewing him. Dr Sklavos felt he would not be treated fairly at that hospital due to this and, at his request, the College arranged an alternative placement in a training position at the Liverpool Hospital. Dr Sklavos’s experience with the Royal North Shore Hospital reinforced his anxieties about the College’s treatment of him.
Dr Sklavos was scheduled to sit the College’s final examinations in 2010. In late 2009, the College changed its procedures concerning the circumstances in which a trainee would be able to carry over a pass in the written examinations into subsequent years. Dr Sklavos perceived this to be somehow targeted at him.
Dr Sklavos then had a problem with his case reports, which were another College requirement. His second case report was rejected for publication, which he took as a “slap in the face”. He then felt further aggrieved because he did not know that the College might have accepted a different form of publication (a letter to the editor) as sufficient and felt cheated of the opportunity to use this means to meet his publication requirements. Despite this, Dr Sklavos, along with three other candidates, was permitted to sit for the final examinations in early June 2010 without having completed his publication requirements beforehand.
Dr Sklavos’s troubles continued, however. In early July 2010, he was given an unsatisfactory performance review for his first half at Liverpool Hospital and was subjected to a performance improvement requirement. This made Dr Sklavos very anxious and distressed.
Dr Sklavos was informed by the College on 30 June 2010 that he was invited to take the clinical examinations. Unbeknownst to him, however, the College later discovered it had made an error in this regard and it considered that Dr Sklavos’s marks were not sufficient for him to be invited to take the clinical examinations. Dr Sklavos’s actual performance in the 2010 written examinations is an issue in dispute. The College decided that it would not rescind the invitation to Dr Sklavos to sit the clinical examinations and not to inform him of the issue about his written examinations as it might adversely affect his performance in the clinical examinations. This was because the College considered that if he passed the clinical examinations he should be admitted as a Fellow irrespective of the written examinations.
Dr Sklavos took the clinical examinations starting on 24 July 2010. He did so feeling nervous and aggrieved that he had not been given the peace of mind needed to prepare properly. He had been unable to arrange leave from the Liverpool Hospital to prepare for the examinations and was continuing to work. His wife was late into pregnancy with their second child. By the end of the process of the clinical examinations, he felt physically and mentally exhausted and anxious. He did not pass the clinical examinations. He was then told that he had not in fact passed the written examination and would be required to re-sit both the written and clinical examinations the following year.
Dr Sklavos completed his year at Liverpool Hospital without further incident. He continued to work at Liverpool Hospital until the College notified him that his supervised training would be completed by 31 July 2011 (the training program having been reduced from five to four years). The College had arranged for Dr Sklavos to work at the private practice of Dr Younger in Campbelltown one day a week since February 2011 and his work there increased after his training at the Liverpool Hospital ended. Dr Sklavos enjoyed working in Dr Younger’s practice and he experienced no problems while working there.
Dr Sklavos applied to sit for the Fellowship examinations in 2011. He had yet to complete his publication requirements but was permitted to sit the 2011 examinations. While he still felt deeply aggrieved and troubled by all that had occurred, which he now characterised as not only unfair and arbitrary but also malicious treatment of him by the College, he considered that he could pass the examinations in 2011. At the same time, however, he thought the College was running a campaign against him to ensure he could not be admitted as a Fellow. He experienced more severe anxiety symptoms than in 2010. In any event, he sat the written examination in June 2011. He did not pass and thus was not invited to sit the clinical examinations in 2011. The College allowed candidates four attempts to pass the examinations in a 10 year period from the start of training.
Dr Sklavos continued to work at Dr Younger’s practice. By 28 July 2011, Dr Sklavos’s solicitor had written to the College making many allegations against it and claiming that Dr Sklavos should be admitted as a Fellow without undertaking further examinations. By this time, and probably before, Dr Sklavos had no doubt that members of the College were involved in a conspiracy against him. The College refused to admit Dr Sklavos as a Fellow and denied the allegations against it.
By late 2011, Dr Sklavos had seen a psychiatrist. By a letter dated 22 December 2011, Dr Sklavos again sought to be elected as a Fellow of the College without having to undertake and complete the College’s examinations, relying instead on his qualifications and experience. In late January 2012, the psychiatrist diagnosed Dr Sklavos with a specific phobia, the phobia relating to sitting the College’s examinations. By another letter dated 7 February 2012, Dr Sklavos’s solicitor provided to the College a copy of the psychiatrist’s report and asked that it be considered in the context of the letter from Dr Sklavos of 22 December 2011.
By letter dated 21 February 2012, the College informed Dr Sklavos that his application to be elected as a Fellow had been refused. The letter also said that the College would consider any reasonable request for special conditions in the 2012 examinations. Dr Sklavos notified the College on 8 March 2012 that he intended to sit the 2012 Fellowship examinations and requested that certain steps be taken to allow him to do so. Correspondence ensued with the adequacy of the adjustments the College was prepared to make being an issue in dispute. Ultimately, however, and with the benefit of advice from his psychiatrist, Dr Sklavos decided he was unable to sit for the 2012 examinations. He then lodged a complaint with the Australian Human Rights Commission (the AHRC) about alleged disability discrimination by the College.
Dr Sklavos ceased to work at Dr Younger’s practice in September 2012, in circumstances which are in dispute. Thereafter, in the context of this proceeding, Dr Sklavos thought he would be able to undertake an alternative form of assessment, if offered by the College. His present position, however, is that his psychiatric condition has become more severe and he is unable to engage in any process involving any assessment of him by the College at this time or in the foreseeable future (a view supported by a psychiatrist who gave evidence in Dr Sklavos’s case). Dr Sklavos has worked casually as a locum general practitioner at various times since he ceased work at Dr Younger’s practice.
The AHRC terminated his complaint in April 2013. This proceeding was commenced in June 2013. It has an unfortunate procedural history which caused delays in the fixing of the matter for hearing (including a dispute about subpoenas which was the subject of an appeal to the Full Court, see Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378).
1.2 Claims
Dr Sklavos’s makes three claims against the College.
The first involves an application under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) by which Dr Sklavos alleges that the College engaged in either direct or indirect disability discrimination in contravention of the Disability Discrimination Act 1992 (Cth) (the Disability Discrimination Act). The relief he seeks is an order that he be made a Fellow of the College and compensation.
The second involves allegations that in multiple respects the College breached a contract or contracts into which it entered with Dr Sklavos in respect of his training. The relief he seeks is damages.
The third involves allegations that the College negligently breached a duty of care it owed to Dr Sklavos by reason of the clinic list conduct. The relief he seeks is damages.
It is unfortunate but necessary to observe that the written submissions which each party provided have made the task of resolving the issues more difficult than might have been hoped. Those on behalf of Dr Sklavos delved into the minutiae of every event that occurred to Dr Sklavos in his attempts to become a dermatologist from 1996 onwards and how each such event impacted on Dr Sklavos’s state of mind, without apparent regard to the importance of the event to the causes of action. Those on behalf of the College touched but lightly on some, but by no means all, of the key issues.
2. THE DISABILITY DISCRIMINATION CLAIMS
2.1 The claim in the context of the statutory provisions
Dr Sklavos claims that at all times since at least 28 January 2012 he has suffered from a disability for the purposes of the Disability Discrimination Act. Under s 4(1) of the Disability Discrimination Act, “disability” is relevantly defined to include:
(g)a disorder, illness or disease that affects a person’s thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour;
Dr Sklavos’s case is that since at least January 2012, he has suffered from a recognised psychiatric illness known as specific phobia, situational type (the relevant situation being examinations of the College). He alleges unlawful discrimination by the College against him in respect of which he made a complaint to the AHRC on 29 June 2012 (amended on 16 October 2012). The complaint was terminated by the AHRC on 17 April 2013. In accordance with the time limit of 60 days prescribed by s 46PO(2) of the AHRC Act, Dr Sklavos commenced this proceeding on 5 June 2013.
Section 46PO(1) of the AHRC Act provides that if a complaint has been terminated by the President of the AHRC, any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. By s 46PO(3) the unlawful discrimination alleged in the application must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. This requirement is satisfied in the present case.
The Court’s powers if the allegation of unlawful discrimination is sustained are contained in s 46PO(4) of the AHRC Act which is in these terms:
If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a)an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c)an order requiring a respondent to employ or re-employ an applicant;
(d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f)an order declaring that it would be inappropriate for any further action to be taken in the matter.
It will be apparent that Dr Sklavos’s claim for compensation is founded on s 46PO(4)(d) of the AHRC Act. His claim for an order that he be made a Fellow of the College is based on s 46PO(4)(b).
“Unlawful discrimination” is a defined term. Insofar as relevant, it is defined in s 3(1) of the AHRC Act to mean any acts, omissions or practices that are unlawful under Part 2 of the Disability Discrimination Act.
In the Disability Discrimination Act, “discriminate” is given meaning by ss 5 and 6 (s 4(1)).
Section 5 of the Disability Discrimination Act defines direct disability discrimination as follows:
(1)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2)For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b)the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3)For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
Section 6 of the Disability Discrimination Act defines indirect disability discrimination as follows:
(1)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b)because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c)the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2)For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b)because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c)the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3)Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4)For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.
Section 4(1) is a form of deeming provision. Under s 4(1), an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person. “Unjustifiable hardship” is defined in s 11. Section 11 is in these terms:
(1)For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
(a)the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
(b)the effect of the disability of any person concerned;
(c)the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
(d)the availability of financial and other assistance to the first person;
(e)any relevant action plans given to the Commission under section 64.
(2)For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.
In Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 at [22] Mortimer J said that:
The word “adjustment” is left undefined by the statute and is to be given its ordinary meaning as “an alteration or modification”: Oxford English Dictionary (online edition). However, unlike other aspects of the DDA (see, for example, s 6) the statute does not leave it to the discriminator in the first instance and the court in the second instance to determine whether an adjustment is “reasonable”. Although the word “reasonable” is used, it has no qualitative character in its context. It is simply part of a term defined by legislative declaration of what is outside the term. All that Parliament declares to be outside the term is a modification or alteration which imposes unjustifiable hardship on a person, taking into account the considerations applicable to identifying hardship of that nature, which are set out in s 11 of the DDA.
Justice Mortimer continued in these terms at [27]:
The somewhat absolute nature of the definition of reasonable adjustment has tangible consequences for potential discriminators. There is no room in the operation of s 5(2) for a discriminator, or a court, to assess conduct, or modifications, by reference to notions of reasonableness. The statute removes that capacity. Unless a modification involves unjustifiable hardship, it will by operation of s 4 be a reasonable adjustment and the discriminator must make it “for” the person, to avoid the consequences s 5(2) (read with other provisions in the DDA) might otherwise impose … One consequence is that what constitutes “hardship” and the circumstances in which it might be “unjustifiable” may be broader than if the statute used reasonableness as a criterion of liability.
Section 12 controls the application of the Disability Discrimination Act. The College conceded that its conduct was subject to the provisions of that Act. I infer that the College accepts for the purpose of this case that it is a trading or financial corporation (see s 12(9) of the Disability Discrimination Act).
Part 2 of the Disability Discrimination Act identifies kinds of unlawful discrimination. Dr Sklavos relied on ss 19 (qualifying bodies), 22 (education authorities and providers), 27 (clubs) and 29 (administration of Commonwealth laws and programs) to found his claims. He also relied on s 32 (contravention of disability standards).
The College admitted that it was a qualifying body and education provider (but not education authority) for the purposes of ss 19 and 22 respectively of the Disability Discrimination Act. The College admitted also that it was subject to s 32 (disability standards) as an education provider and educational institution, the relevant standard being the Disability Standards for Education 2005. The College denied it was a club and contended that s 27 did not otherwise apply given that the alleged discrimination involved work and not other areas. The College also denied that s 29 and related provisions concerning administration of Commonwealth laws and programs applied to it. Given the College’s admissions about it being a qualifying body and an education provider, and that it was subject to s 32, it is not necessary to resolve these other disputed issues.
The relevant provisions of the Disability Discrimination Act which the College accepted applied to its conduct at all material times, accordingly, are these:
19 Qualifying Bodies
It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of the person's disability:
(a)by refusing or failing to confer, renew or extend the authorisation or qualification; or
(b)in the terms or conditions on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification; or
(c)by revoking or withdrawing the authorisation or qualification or varying the terms or the conditions upon which it is held.
22Registered Organisations under the Fair Work (Registered Organisations) Act 2009
…
(2A)It is unlawful for an education provider to discriminate against a person on the ground of the person's disability:
(a)by developing curricula or training courses having a content that will either exclude the person from participation, or subject the person to any other detriment; or
(b)by accrediting curricula or training courses having such a content.
…
31 Disability Standards
(1) The Minister may, by legislative instrument, formulate standards, to be known as disability standards, in relation to any area in which it is unlawful under this Part for a person to discriminate against another person on the ground of a disability of the other person.
32 Unlawful To Contravene Disability Standards
It is unlawful for a person to contravene a disability standard.
2.2 Specific phobia – the evidence
Dr Sklavos was first diagnosed as suffering from a psychiatric disorder (that is, specific phobia) on 28 January 2012 in a report prepared by a psychiatrist, Dr de Saxe. Dr Sklavos first became aware of this report on or about 6 February 2012, when his solicitor received a copy of Dr de Saxe’s report and felt the diagnosis explained his symptoms and was thus correct.
Two psychiatrists gave evidence concurrently during the hearing. Dr Sklavos called Professor Nicholas Glozier, who is a Professor in the Disciplines of Psychiatry and Sleep Medicine at the University of Sydney and a practicing consultant psychiatrist. The College called Professor Anthony Samuels, who is an Associate Professor of Psychiatry at the University of New South Wales and a practicing consultant forensic psychiatrist.
In his report of February 2014, Professor Glozier diagnosed Dr Sklavos as suffering from the recognised psychiatric illness of specific phobia, noting that:
The constellation of symptoms that developed in late 2011/early 2012 of anticipatory anxiety with heightened physical symptoms of arousal, insomnia, somatic features of palpitations, dry retching and nausea, in the context of examinations, have the characteristics of a phobic reaction. As such, I agree with Dr De Saxe that these symptoms of marked fear and anxiety, provoked by exam related phenomena, leading to avoidance and being out of proportion to the anxiety others would have in an exam situation, would meet the criteria for a Specific Phobia. Because of the duration criteria, e.g. six months, one would not have actually been able to diagnose this until early 2012 as these symptoms require their presence to be there for six months.
Professor Glozier’s diagnosis was based in part on Dr Sklavos’s report of symptoms meeting all the diagnostic criteria for specific phobia identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The diagnostic criteria for specific phobia outlined in DSM-5 are as follows:
A. Marked fear or anxiety about a specific object or situation (e.g., flying, heights, animals, receiving an injection, seeing blood).
Note: In children, the fear or anxiety may be expressed by crying, tantrums, freezing, or clinging.
B. The phobic object or situation almost always provokes immediate fear or anxiety.
C. The phobic object or situation is actively avoided or endured with intense fear or anxiety.
D. The fear or anxiety is out of proportion to the actual danger posed by the specific object or situation and to the sociocultural context.
E. The fear, anxiety, or avoidance is persistent, typically lasting for 6 months or more.
F. The fear, anxiety, or avoidance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
G. The disturbance is not better explained by the symptoms of another mental disorder, including fear, anxiety, and avoidance of situations associated with panic-like symptoms or other incapacitating symptoms (as in agoraphobia); objects or situations related to obsessions (as in obsessive-compulsive disorder); reminders of traumatic events (as in posttraumatic stress disorder); separation from home or attachment figures (as in separation anxiety disorder); or social situations (as in social anxiety disorder).
More recently, in Professor Glozier’s report of June 2015, he concluded that Dr Sklavos continues to suffer from specific phobia, stating that:
Dr Sklavos still presents as someone who has a Specific Situations Phobia of the examinations with reports of the same beliefs and avoidance as previously. His fear would appear to be out of proportion, particularly for someone who has taken many previous examinations. I would note that some aspects of associated stimuli, e.g. spending two days with dermatologists and seeing people whom he believes are involved in the conspiracy, led to a brief episode of anxiety with a short-lived panic attack that resolved and was not subsequently disabling. Again this would confirm the suggestion that this situational phobia still exists.
In his report of October 2014, Professor Samuels concluded that while the anxiety which Dr Sklavos exhibited in respect of the College examinations was towards the severe end of the spectrum, he would not diagnose the psychiatric illness of specific phobia despite accepting that the reported symptoms satisfy the criteria in DSM-5 for Specific Phobia. Professor Samuels said:
I accept that with a very literal interpretation of the DSM-IV-TR and DSM 5 criteria it might be possible to apply the criteria of Specific Phobia to Dr Sklavos but you would need to be convinced he was suffering from an illness and I am not persuaded in this regard.
Professor Samuels considered that Dr Sklavos had experienced ongoing difficulties with the College because of dysfunctional personality traits, observing this:
In my opinion it is, in fact, far more likely that it is his underlying personality style rather than a situational phobia that is impeding his ability to fulfil his training and Fellowship requirements. His personality dysfunction is the factor most likely to lead his supervisors to have some reservations about his competence and abilities to function autonomously as a consultant dermatologist.
In oral evidence Professor Samuels said:
First of all, another cautionary note in the front of DSM-5 is the use of DSM-5 in the courtroom. It’s called the Diagnostic and Statistical Manual, but there are no diagnoses in DSM-5; they are descriptions of various conditions. Unfortunately, we’re at the stage in psychiatry where we don’t actually fully understand the biological origin of many of our psychiatric disorders. We treat things symptomatically. We have some understanding that some neurotransmitter systems are awry. We can show some brain changes on MRI scans, but we actually don’t really understand what the disease is. You can say that somebody had tuberculosis; you can identify the tubercle bacillus. We can’t do that in psychiatry.
So these are descriptors, and DSM-5 is a useful way for clinicians to communicate with each other about a cluster of symptoms. But one really has to decide whether that condition has clinical significance.
The cautionary note in DSM-5 regarding its use in court proceedings states as follows:
Cautionary Statement for Forensic Use of DSM-5Although the DSM-5 diagnostic criteria and text are primarily designed to assist clinicians in conducting clinical assessment, case formulation, and treatment planning, DSM-5 is also used as a reference for the courts and attorneys in assessing the forensic consequences of mental disorders. As a result, it is important to note that the definition of mental disorder included in DSM-5 was developed to meet the needs of clinicians, public health professionals, and research investigators rather than all of the technical needs of the courts and legal professionals. It is also important to note that DSM-5 does not provide treatment guidelines for any given disorder.
When used appropriately, diagnoses and diagnostic information can assist legal decision makers in their determinations. …
…
However, the use of DSM-5 should be informed by an awareness of the risks and limitations of its use in forensic settings. When DSM-5 categories, criteria, and textual descriptions are employed for forensic purposes, there is a risk that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. …
Professor Samuels also gave weight to the fact that, other than in relation to the College’s examination requirements, Dr Sklavos was essentially asymptomatic. He explained this in oral evidence in these terms:
You could shoehorn him into the criteria that are specified in DSM-5. The problem is that I don’t believe his anxiety is a clinical psychiatric condition. It’s extremely circumscribed, it only occurs in the context, or the prospect of sitting an examination. For the rest of his life he’s getting on with things, he’s doing his job, he’s participating in family and social life. Generally, psychiatric disorder is something that pervades all aspects of your functioning. There also is a cautionary note in the front of DSM which expands the definition of “disorder”. Generally, “disorder” relates to impairment in social, occupational and other functioning.
There’s also a small note in the front of DSM-5 which says that:
A disorder is not – where an individual has a conflict with society this should not be construed as a disorder.
And in a sense this is what this is. This is an individual who is at odds with part of our society; the College of Dermatologists. I am very sceptical that this is an illness because it rarely – I agree that it needs some management. If he is to pass his exams, like all trainees he is going to have to find some strategies to manage that anxiety or possibly the College of Dermatologists may modify their examination processes to accommodate him to make him less anxious. I – in terms – there are also in terms of – while I say we can – he could – I can agree with Professor Glozier that we could make a DSM-5 diagnosis, my thesis is that doesn’t really mean very much in the real world.
The definition of mental disorder to which Professor Samuels was referring is as follows:
Although no definition can capture all aspects of all disorders in the range contained in DSM-5, the following elements are required:
A mental disorder is a syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behavior (e.g., political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above.
The diagnosis of a mental disorder should have clinical utility: it should help clinicians to determine prognosis, treatment plans, and potential treatment outcomes for their patients. However, the diagnosis of a mental disorder is not equivalent to a need for treatment.
Other relevant evidence, which captures the difference in approach of Professor Glozier and Professor Samuels, or which is otherwise relevant to the issues which must be resolved in this proceeding, included the following:
Professor Glozier:
·“what has made me even more certain about that diagnosis is that over time this has become more entrenched and more severe, such that recently, when faced with the option of actually having to go and do – when I wrote a more recent report, which hasn’t been tabled, suggesting work based assessments, his response was so extreme he actually ended up being hospitalised in a public psychiatric hospital for a few days, because his response was so extreme. I would suggest that is not a normal part of the human continuum of a fearful response, so that is why I’ve been even more certain that he has this specific disorder. And he meets those criteria. We don’t have to shoehorn him. He meets those criteria”;
·“In terms of the personality disorder – I’m glad Dr Samuels agrees with me – he doesn’t have a personality disorder. Conversely, I also agree with Dr Samuels, he does have a number of obsessive, and paranoid, and somewhat narcissistic traits. He has those. Doctors have them in spades. Loads of doctors have them”;
·“I too mulled over the idea of a delusional disorder, which is a psychotic disorder, complete loss of bounds with reality. And like my colleague here, I don’t think he meets the criteria for that, but actually the ideas he holds do – around the College do show underlying, sort of, paranoid and obsessive traits which have led him to those beliefs… So the presence of those things – of those personality traits – does not undermine or invalidate the presence of a specific situational phobic disorder”;
·“the idea that one can only have a diagnosis if there is a treatment for it is – is complete category error. We have a whole pile of diagnoses we don’t have a treatment for: frontotemporal dementia being a classic one, which we know has an underlying pathology. We don’t have a treatment for it. It’s a diagnosis. We can’t treat the underlying dysfunction of autism, for instance. So a diagnosis is there for a bunch of reasons. It’s there for – you know, to help doctors communicate to each other, particular kinds of syndromes, to give a patient some kind of meaning to what they’re experiencing, to give them some idea of when they might experience it again, so that’s one thing”;
·“Secondly, the idea that actually – yes, with – with these situational things, we cleave nature at the joints. In fact, medicine does that not just in psychiatry, but across the board, you know. We decide that diabetes occurs at a certain cut point on a glucose tolerance test. Underneath you ain’t got diabetes, above it you do. It is a completely artificial distinction. We are not the only branch of medicine that makes completely artificial distinctions saying, ‘That is a disorder. That is not a disorder’. And I think, in this case – and what happens is, people agree…”;
·“by definition, a social and specific or situation phobia – specific phobia is transitory. That is the definition – the core definition of it. It is – it is only existing in the presence of the feared situation. Outside of the presence of the feared situation, one would expect to see no clinically significant symptoms, no impairment, no disability outside of those situations. Faced with the situation or faced with the threat of being in – in that situation, which is called anticipatory anxiety, one develops symptoms and impairment”;
·“So we all have personality traits and they can be accentuated in very different areas. They’re our characteristics, if we like, and some can be stronger. I think both of us agree that Dr Sklavos has certain strong characteristics or personality traits, but does not have an actual disorder, which again is that box, that sort of extreme end.
These are like any kind of vulnerability. Whether you’ve had early child abuse, whether you’ve had some neurodevelopmental problems, you’ve had drug dependence in your – in your – they form one of a range of vulnerabilities to the development of another psychiatric disorder. And so I would suggest that, yes, as Dr Samuels says, they were part of a vulnerability to him developing this specific disorder, but they’re only a vulnerability. This disorder is not part of those traits.
If you look, the specific situational phobia is not part of the diagnostic criteria of any of the personality disorders. So, yes, the personality traits were a vulnerability, but they – which may have enhanced the likelihood of him developing this specific phobia, but the specific phobia exists as a separate entity and a separate diagnosis and disorder”.
Professor Samuels:
·“my view is that he has obsessional personality traits, not an obsessive compulsive disorder”;
·“I think he has a number of personality traits that are dysfunctional. And these have been evident throughout his training. He had problems getting to training. I suspect that may have been related to his personality. He has problems in training. He didn’t want to work with particular doctors. He – all sorts of special arrangements were made. It brought him to the attention of people and probably did heighten some of the antagonism that occurred. He also is not very responsive to feedback”;
·“I think Dr Sklavos has quite a lot of mixed traits. He has narcissistic traits. He probably has paranoid traits. He certainly has some obsessional characteristics to his personality. He finds it very difficult to change course once he has set the course”;
·“There is one other issue that we haven’t touched on, and that’s the issue of whether he has a delusional disorder, because he certainly has quite strongly held beliefs that the College of Dermatologists are singling him out, persecuting him, not wanting him to proceed because he has special knowledge or – he has come up with a whole range of idea[s] which are unlikely. Now, I don’t think that he has a psychotic illness or a delusional disorder. And I actually think that that – the paranoid aspects of his presentation probably relate to some adverse experiences. There probably is some – some hostility in the college because of the way that he has interacted with them at various times, but I actually think it comes from a core of narcissism.
You actually have to believe you are quite special and important for people to pick on you. Basically, most people don’t really care about other people, and it’s highly unlikely that this organisation would particularly single out this doctor as being a commercial threat, a knowledge threat or whatever it might be. So I actually would see that sort of paranoid stuff as probably stemming from personality dysfunction. So essentially I don’t think he has a psychiatric diagnosis in the form of an anxiety disorder, but I do think he has dysfunctional personality traits”;
·“There are some people who just – whether it’s anxiety, whether it’s personality, whether they’re just not intellectually good enough, can’t get through examination processes.
And I guess the question is, how does – is – can you really ascribe that to psychiatric disorder? In any training program there are going to be successes and failures, and the candidate who does continually badly is going to become more sensitised, more phobic – for want of a better word – about the process, more paranoid about the organisation that keeps denying him what he wants, but I still have reservations that that is truly a psychiatric disorder”;
·“It is normal to be anxious in the exam situation. It only becomes – and you will have some of those symptoms, but hopefully you will control them, and if you have some anxiety you will actually do better than the person who doesn’t. But I agree, if those symptoms are sustained and severe, you probably won’t do well. And part of your way of getting through an exam, or managing the exam process is trying to control that anxiety through a range of techniques”;
·“I accept that you can potentially develop a phobia about examinations, and I – and the setting that has – the setting in which that has then occurred, repeated failure and adverse outcomes, would sensitise anybody, I think, to the fear of failure. And I agree that his response and avoidance has become pretty severe. And we could call it a psychiatric disorder. I am, you know, aligned with Professor Glozier in that degree, but I still think that – this is the problem: you can find a diagnosis in DSM-5, but what does it mean in the real world. And I accept in DSM-5 terms we could probably make – we can make a diagnosis; I accept that. But the issue is, is this a clinical condition – condition that requires a specific psychiatric treatment? I – my view is that it’s not.
It requires some management. He needs to learn some techniques to minimise his anxiety to cope with the exam process and get through it, and he would probably be well suited to work with a psychologist. But I still – I would still not ascribe – this is – this is a phenomenon that’s experienced by – by many people and it’s still – I would see it at the – at the extreme end of a normal anxiety response. He is undoubtedly a very anxious man and his anxiety is preventing him from passing the exam, but whether this is really at the extreme – this is someone who is at the extreme end of anxiety as opposed to having a psychiatric clinical condition is the difficulty for me. And I think that I would – I conceptualise this as somebody who is extremely anxious and at the extreme continuum of anxious people across the population, but whether – but I hesitate to say this has become a true psychiatric clinical condition”;
·“But I think that his prognosis in terms of treatment is quite limited by his personality, so I think there’s a psychiatric issue, but I think the psychiatric issue is, really – I think that this anxiety state should be manageable, and I – I – I’m not particularly fussed whether we’re going to say – and I will – I can concede that it’s a specific exam situational phobia, but it doesn’t really – the point of it is that it’s actually his personality dysfunction that is going to be the limiting factor, I think, in terms of him passing the hurdle of the exams. It’s not actually the – the exam phobia”;
·“So he doesn’t have a [personality] disorder, I agree, but just as much as the anxiety symptoms are clinically significant, his traits are clinically significant because they have led to problems, and his career problems, and not working with this consultant, not working with that consultant, conspiracies, et cetera…ultimately, they’ve led to a lot of anxiety for him, and probably the reason why we’re sitting in the courtroom today. But they actually create real problems. He had problems at North Shore Hospital because he felt that the Professor there was going to discriminate him – against him, or cause problems for him, so he went through a whole process of having to meet with the Director of Medical Services and try to get placed elsewhere. I mean, these have in a real and practical sense impeded his placements, affected his training, probably soured the attitudes of various supervisors because of all the stuff that went around them.
So these traits – he was not a – an easy trainee. He was somebody who by dent of his behaviours brought himself to the attention of the system, and probably did develop a reputation of being a difficult trainee. So some of his – which probably fed into his anxiety as well. Some of his perceptions that he wasn’t liked, or there was a conspiracy, probably has some basis in reality because his particular personality traits engendered reactions from people around him”.
Professors Glozier and Samuels also agreed that, irrespective of his own perceptions that he only became anxious when confronted with the College’s examinations, Dr Sklavos’s personality traits meant that he would have been ruminating about the perceived unfairness of the College’s treatment of him and that, for Dr Sklavos, this kind of rumination would have become normal, thereby fuelling his anxiety about the examinations. By 2011, they both characterised Dr Sklavos’s reported symptoms as indicative of severe anxiety about the examinations which appeared to have worsened over time to the point where, in 2015, Professor Glozier’s view that Dr Sklavos might be able to submit to work-based assessments by the College resulted in him having suicidal thoughts and a hospital attendance.
Professor Glozier also gave evidence that Dr Sklavos had been referred to a psychologist who undertook exposure therapy with him in 2015, which was unsuccessful. Professor Glozier explained that:
in Dr Sklavos’ case, undertaking the treatment – because none of our treatments are a hundred per cent effective – he was one of those people who actually became – certainly did not improve, and possibly became worse as a result of that course of treatment, which is the evidence-based treatment..
Professor Glozier now thought it “incredibly unlikely” that Dr Sklavos could be successfully treated for his specific phobia about the College’s examinations given that his phobia had worsened over time, had enlarged to include any form of assessment by the College including work-based assessments which Professor Glozier had thought Dr Sklavos would be capable of undergoing before his recent suicidal ideation, and had proved unresponsive to exposure therapy by an experienced clinical psychologist. He also said this:
…one of the real difficulties in undertaking the treatment is recreating the feared exposure, because it’s incredibly difficult to recreate an exam. So it’s actually a really, really difficult treatment to undertake, and I – I – and I know the psychologist who did it, and she called me at the time when he became really unwell about it. She was just saying how incredibly hard it is to do that treatment, so that’s one of the difficulties in envisaging any form of actual treatment in this.
2.3 Specific phobia - discussion
The concerns expressed by Professor Samuels about the risks of labelling anything within the ordinary spectrum of human experience, including the experience of severe anxiety which many people might suffer when undertaking a potentially career determining examination process, are readily able to be understood.
It would be surprising if many, even most, people undertaking the kind of examination process conducted by the College did not experience high levels of anxiety. People undertaking this process had already spent many years studying and being examined in order to be registered as a medical doctor. Before this, they undoubtedly had to excel in their school years in order to be admitted into the study of medicine. After successfully completing their medical studies and required further training, they then chose to subject themselves to at least five (and now four) more years of specialised training involving an entry exam, ongoing assessment and supervision and final examinations, both written and clinical, which would determine whether they could become a dermatologist. Assuming a medical degree of five years, and the required two years of training in the hospital system before entry to the College as a trainee could be obtained, along with five years (as it was) as a trainee of the College, such a person would have invested a minimum of 12 years in their pursuit of their goal of becoming a dermatologist. Dr Sklavos had invested many more years than this because it took him eight years to be admitted to the College as a trainee. It would be fair to say that Dr Sklavos had invested virtually all of his energies available for his career on his goal of becoming a dermatologist for 13 years, between 1994 and 2006, before he was finally admitted to the College as a trainee in 2007. By the time Dr Sklavos sat for his final examinations it was 2010, representing a total investment by him of 16 years of his life. In these circumstances, for Dr Sklavos to approach his final examinations in a state of anxiety, even severe anxiety, could not reasonably be seen as outside the spectrum of normal human experience.
A number of factors persuade me, however, that Professor Glozier’s ultimate conclusion that Dr Sklavos is suffering from a specific phobia is to be preferred.
First, there seems little doubt on the evidence that Dr Sklavos’s anxiety about the College has worsened over time. While I accept that this litigation is likely to be a material contributor to this worsening, the fact is that Dr Sklavos’s condition has developed to the point where the mere anticipation of having to undergo work-based assessments involving the College recently caused Dr Sklavos to become very unwell, including suffering from suicidal ideation. Such a reaction, on any view, is well outside what might be expected of a person who had been undergoing therapy with the aim of being able to undertake alternative forms of assessment.
Second, the fact that Dr Sklavos’s current position is that it is impossible for him to undergo any form of assessment by the College is to be weighed in the context of him having focused on the goal of becoming a dermatologist since 1994. I consider that he would not rule out the possibility of other methods of assessment unless he found them impossible to contemplate without triggering a severe, possibly life threatening by reason of suicide risk, anxiety reaction. I do not accept that his current position involves any form of strategy to increase his chances of success in this litigation.
Third, his ability to function normally otherwise than in the context of assessment by the College is consistent with the criteria for the diagnosis of a specific phobia. That context, which is highly significant for achieving his career goal, is the one in which he experiences the severe anxiety reactions. Professor Samuels’ concern about the specific nature of the anxiety reaction is part of the diagnosis of specific phobia and thus cannot or should not be used as a disqualifying feature.
Fourth, while I accept that DSM-5 has limitations, I do not consider Professor Glozier’s evidence to be the result of a mechanistic or “tick-a-box” application of DSM-5. At the same time, I accept Professor Glozier’s evidence that DSM-5, whatever its limitations, is the best tool currently available to ensure that psychiatric diagnoses are made consistently and on the basis of widely agreed criteria.
Fifth, Professor Samuels’ reluctance to agree with the diagnosis of a specific phobia, to my mind at least, involved reservations about DSM-5 at a level of principle. Professor Samuels accepted that Dr Sklavos’s description of symptoms satisfied the DSM-5 criteria for specific phobia and that the information now available indicated that his symptoms had worsened over time, but appeared to believe that the diagnosis, specific phobia, would be a label without real meaning or function. Professor Glozier, however, saw the worsening of the symptoms over time as confirmatory of the initial diagnosis. Given the severity of Dr Sklavos’s more recent reaction to the possibility of alternative forms of assessment by the College, the opinions of Professor Glozier carry weight.
Sixth, the fact that Dr Sklavos appeared calm when giving evidence during the hearing is immaterial. His specific phobia relates to assessment by the College of his capacity to be a dermatologist.
Insofar as it is necessary to say so, I do not accept any of the criticisms made of either Professors Glozier or Samuels. Both were highly trained and skilled. I have no doubt that they were giving evidence based on their expertise as frankly as they could. I have no concern about the fact that Professor Glozier amended part of his opinion in response to a letter from the solicitor instructing him. The part of the opinion he amended, in my view, had little to do with his expertise in any event because it related to the adjustments the College had made at Dr Sklavos’s request which is a matter ultimately of fact, not opinion. Nor do I have any concern about his view that usually the person suffering from the disability is best placed to assess what adjustments need to be made to account for their disability. To the contrary of the submission for the College that this is self-evidently wrong, in many cases, this will be true. But it is also true that this generalisation says nothing about this particular case and the requests for adjustments Dr Sklavos made. I also do not accept that Professor Glozier’s diagnosis was inappropriately influenced by anything Dr de Saxe might have said. I have no doubt that Professor Glozier held his own opinions based on his own expertise.
In short, I found Professors Glozier and Samuels to be highly articulate and helpful experts who each gave clear evidence with a view to assisting resolution of the issues about which they had been asked to express opinions.
Having regard to the matters set out above, I am satisfied that Dr Sklavos currently suffers from a specific phobia and that the subject-matter of his phobia is assessment by the College of his capacity to be a dermatologist. I consider that it is so unlikely that he will recover from this psychiatric disorder that the possibility of him being able to undertake any form of assessment by the College in the foreseeable future is so small that it can and should be disregarded.
When did this disability start? It is clear that Dr Sklavos was not suffering from this specific phobia when he undertook the examinations in 2010. He reported only usual levels of anxiety at that time. Although his anxiety had increased by the time he had to prepare for the 2011 examinations, warranting the description of clinically significant or severe at that time and Dr Sklavos said he thought his phobia crystallised while studying for the 2011 examinations, it is not clear that he was then suffering from the specific phobia. As noted, for such an important life event, even severe anxiety (with symptoms of insomnia, heart palpitations, sweating and some dry retching) would not be outside the normal range of human experience such as to warrant a psychiatric diagnosis. Based on the evidence, it seems to me that after he failed the 2011 written examinations, his condition again deteriorated. It is at this time that he reported feeling “immobilised” by the mere thought of having to sit the examinations in 2012, with his anxiety symptoms so severe that he ultimately withdrew from the examinations despite having set himself the task of sitting for them. In December 2011, he saw Dr de Saxe who gave the specific phobia diagnosis in January 2012 which, said Dr Sklavos, “absolutely resonated” as the explanation for what he had been feeling. Given the requirement in DSM-5 for the symptoms of specific phobia to be present for at least six months, I consider that Dr Sklavos has suffered from this psychiatric disorder since January 2012 or possibly late in 2011 but not at any earlier time.
The College did not directly dispute that such a specific phobia would be a disability for the purposes of the Disability Discrimination Act. I agree.
Otherwise, I also accept the evidence that Dr Sklavos has strong obsessional, paranoid and narcissistic personality traits which made him vulnerable to the development of an anxiety disorder (of which specific phobia is one type). The presence and strength of these traits is evident from the brief history of the relevant facts as set out above. He entered the College believing he had been unfairly treated and, in effect, primed to react adversely to any dealings with the College which he perceived to be directed against him. Thereafter, it is apparent from his evidence that he almost routinely perceived slights, criticisms and hostility from others when a number of those others gave evidence and denied not so much the event itself but Dr Sklavos’s perception of the event. A few examples are enough for this purpose but there were many others in the evidence.
Early in his training, he received a telephone call from Dr Artemi, a dermatologist whom he knew from many years before and had socialised with when Dr Sklavos was working in Newcastle. The call related to a photograph in a local newspaper of Dr Sklavos at a social function which described him as a dermatologist. According to Dr Sklavos, Dr Artemi told him that this “had better not happen again”, “I have a file on you”, and “I had better not hear of anything further”. Dr Sklavos said he felt threatened by Dr Artemi’s aggressive tone. Dr Sklavos was taken to an email he had written after the conversation with Dr Artemi in which he had thanked Dr Artemi for making him aware of the reference to him as a dermatologist. The email contains nothing but an expression of shock at the description of him as a dermatologist and expressions of gratitude by Dr Sklavos to Dr Artemi for drawing the matter to his attention; saying that “I really appreciate your concern”, ending with “[k]ind regards and cheers from Angelo”. Dr Sklavos said the terms of the email were because he was trying to be polite, deferential, humble and not inflammatory. He said that he was “trying to placate the anger of Dr Artemi”. He also said that subsequent events involving Dr Artemi (relating to the clinic list conduct) confirmed his “worst fears” that Dr Artemi had unfairly judged him.
Dr Artemi said that he and Dr Sklavos had become friends in 1997 when they both worked in Newcastle, Dr Artemi then being in his third year of dermatological training (he has been a dermatologist since 1999). Both are of Greek heritage. They would socialise together. Dr Artemi gave Dr Sklavos advice about the College’s training program. When he was shown the newspaper article, it was in the context of having been asked if he knew another Greek dermatologist, Dr Sklavos. Dr Artemi was concerned that if the College became aware of this it might think Dr Sklavos was holding himself out to be a dermatologist. He told Dr Sklavos that this was not the kind of image that should be circulating as it would not create a good impression. He denied saying anything to the effect reported by Dr Sklavos, noting that he would not do that to a person he considered to be friend. Dr Artemi was not cross-examined about his version of this conversation.
While I accept that Dr Sklavos was giving evidence of what he now actually recalled about this interaction with Dr Artemi, I do not accept his perception of events to be accurate. It is highly unlikely that a person in Dr Artemi’s position (he had been a dermatologist since 1999 and had known Dr Sklavos since 1997 and considered him to be a friend) would have threatened Dr Sklavos or said he had a file on him. Dr Artemi’s version of the event is inherently plausible. It is consistent with the email which Dr Sklavos sent Dr Artemi, the tone and content of which are suggestive of the existence of a friendly relationship. Dr Sklavos’s version is thus inherently implausible and inconsistent with such contemporaneous evidence as exists. Yet I do not consider Dr Sklavos was being untruthful when he gave his evidence by affidavit and orally. Whether at the time or subsequently, Dr Sklavos’s perception and recollection of the event has taken on a character and significance which is consistent with a belief of a pattern of him being unfairly singled out, threatened and harassed by members of the College. It is difficult not to conclude that Dr Sklavos’s perceptions are a result of the obsessive, narcissistic and paranoid personality traits which Professors Glozier and Samuels considered characterised his interactions with others (at least in a professional context).
Next, after many of the difficulties he had experienced during his training, the College arranged for Dr Sklavos to be placed in the private practice of Dr Younger, a very experienced dermatologist, at Campbelltown. Dr Sklavos felt that he thrived working at Dr Younger’s practice. It appears that they had nothing but a close professional relationship for the entirety of their time working together. However, after Dr Sklavos failed the 2011 examinations, Dr Younger suggested to Dr Sklavos that he should try to become a dermatologist some other way. Dr Sklavos said that he was “devastated” to hear this. He took it to mean that he would never become a Fellow of the College. He wondered why Dr Younger had said this to him. He speculated that Dr Younger’s comment might have been a message to him from prominent dermatologist (and later College President) Dr Shumack, noting that Dr Shumack’s wife was “Dr Younger’s wife’s employer”. Subsequently, when the arrangement between Dr Younger and Dr Sklavos came to an end in 2012, Dr Younger perceived this as a mutual decision on the basis that Dr Sklavos had been given all the practical training possible. Dr Sklavos, however, perceived it as part of the conspiracy of the College to deprive him of further dermatological training. In oral evidence he identified Dr Younger as part of this conspiracy, on the basis that Dr Younger was acting in accordance with the College’s requirements. Dr Younger, unsurprisingly, denied this.
Viewed on any reasonable basis it is not difficult to understand why Dr Younger might have suggested to Dr Sklavos that he try another route to becoming a dermatologist. I have no doubt that Dr Younger suggested this only to assist Dr Sklavos and was not in any way delivering a covert message from the College that it would ensure Dr Sklavos never became a Fellow. Dr Sklavos’s perceptions, and his apparent unwillingness to take any alternative course of action, appear consistent with the personality traits observed by Professors Glozier and Samuels. Further, the idea that Dr Younger, who had been so helpful to Dr Sklavos and had no reason to not want to see him succeed, was part of a conspiracy with other College members, on any reasonable view, is bizarre to say the least. Yet, again, however, I accept that Dr Sklavos genuinely believed what he was saying. I do not think that he was embellishing his evidence. The fact is that when a useful and sensible suggestion was made to him by Dr Younger, Dr Sklavos immediately perceived the suggestion to be part of the larger conspiracy (for which, it must be said, there is not a shred of actual evidence other than Dr Sklavos’s perceptions) against him. This demonstrates the overall unreliability of Dr Sklavos’s perceptions, coloured as they are by the dysfunctional personality traits the psychiatrists agreed he has and the subsequent unshakeable beliefs he developed about the College being involved in a conspiracy against him.
Further, Dr Sklavos attended the annual conference of the College in May 2012. Dr Fischer, who was a College member with whom Dr Sklavos had had dealings which he considered adverse to him, was giving a paper. Dr Sklavos saw her and had an anxiety reaction (which I do not doubt and do not find odd given his personality and specific phobia). He started to ruminate about his difficulties with the College (again, a reaction I do not find odd for the same reasons). But he then said that, while giving her paper, Dr Fischer made eye contact with him in the audience. He felt intimidated and connected this to his belief that Dr Fischer knew the College had succeeded in accomplishing the object of the perceived conspiracy (that is, Dr Sklavos never becoming a Fellow of the College). In oral evidence, Dr Sklavos confirmed that the audience was large, but could not accept the possibility that Dr Fischer might have been merely glancing around the room. Dr Fischer, again unsurprisingly, had no recollection of making eye contact with anyone during her presentation.
Dr Sklavos’s evidence contains numerous examples of other perceptions of his that seem consistent with the personality traits observed by the psychiatrists including from before he became a trainee of the College and, when he was a trainee, before the clinic list incident. For example, according to Dr Sklavos, from the outset he felt the College selected trainees based on nepotistic practices. He felt isolated because he was from Newcastle. He found his PhD supervisor difficult. He felt trapped into completing his PhD or else he would not be admitted as a trainee of the College. He entered the College as a trainee already feeling aggrieved because admission as a trainee had taken so long. He had, by then, already started to consider that people within the College wanted to delay or prevent him from becoming a trainee. He also already wondered if he would be treated fairly as a trainee. He perceived Dr Relic’s treatment of him at Newcastle Hospital in 2008 to be curt, rude, abrupt, disrespectful and hostile to him (this is before the clinic list incident). He found another dermatologist there also disrespectful and inappropriate towards him. Because of his perception of Dr Relic’s hostility to him, he thought Dr Relic would review his letters with “a heightened level of scrutiny”. He believed Dr Relic had singled him out and thought the direction that Registrars give Dr Relic copies of their letters was directed personally at him (which Dr Relic denied). He was so unnerved by one assessment he was given that he thought assessment results could be arbitrary, or even concocted, and thus started taking photographs of his surgical work (again, this is in 2008 before the clinic list incident). When asked about a letter to a general practitioner, he perceived the question to be “accusatory and confrontational”. He felt he had “survived” 2008 but had been under “constant threat” all the year. He wondered whether Dr Relic’s hostility to him was “linked to a plan for me which was proposed or approved by the College” (the plan, presumably being the alleged conspiracy).
Having regard to these matters, two points need to be made. First, while I accept Professor Glozier’s evidence that medical doctors might have obsessive and narcissistic personality traits “in spades” which, in many cases, will be useful and functional for their careers, I do not consider that Dr Sklavos’ combination of obsessive, narcissistic and paranoid personality traits was useful and functional for him. I accept Professor Samuels’ evidence that, to the contrary, these traits proved to be dysfunctional for Dr Sklavos, and seriously so. I also accept the psychiatric evidence that these traits made him vulnerable to the development of an anxiety disorder in respect of the College. Indeed, it seems to me that, based on his own account of events, these personality traits made it highly likely that he would perceive any and every possible adverse event arising during his training as personally directed to him and to involve unfairness and hostility to him. As explained below, this creates a problem for the claims in contract and tort against the College which the case put for Dr Sklavos failed to confront. Second, while I accept that Dr Sklavos has given his evidence honestly about his perceptions and state of mind, I do not consider this evidence to be a reliable indicator of anything other than what Dr Sklavos perceived and thought. I consider it unlikely that what Dr Sklavos perceived and thought reflects any reasonable view of the reality of any situation involving the College. While Dr Sklavos was prepared to accept his feelings about the College made it difficult for him to be objective, he nevertheless considered his view of things to be accurate. I disagree. To the contrary, his evidence shows the strength of his tendency towards paranoia, a trait observed in him by both psychiatrists. I consider that this has substantially affected his perceptions and recollections of events to the point where, in a contest between Dr Sklavos and any other witness about what was said or what occurred, I prefer the evidence of the other witness.
2.4 Direct discrimination
2.4.1Overview of Dr Sklavos’s claims
In Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [62], the High Court refused to recognise a novel duty on the basis that doing so would have placed the respondents in that case under two “irreconcilable” duties, interfering with the “proper and effective discharge” of the statutory scheme in issue. In a strict sense, the alleged duty of care in this case is not “irreconcilable” with the College’s duties under the HI Act, as it remains able to certify the competency of dermatologists admitted as Fellows of the College. However, as acknowledged in Paige (see [121]-[123], [129]-[131]), recognising a duty to prevent psychiatric injury in connection with a disciplinary procedure is likely to produce a significant “chilling effect”, discouraging the College’s investigation of allegations of misconduct and inhibiting the proper exercise of corrective measures, and potentially rendering the training process less “efficient and effective”. As the College’s functions under the HI Act have a broader protective purpose, ensuring that only appropriately qualified and medically responsible dermatologists are permitted to treat the general public, the “chilling effect” which the alleged duty of care may produce would divert the College’s attention from this overwhelmingly important consideration. This tends to demonstrate an unacceptable degree of inconsistency between the alleged duty of care and the College’s functions, a conclusion which undermines any recognition of the alleged duty of care.
Given the lack of assistance received from the parties about this issue, I propose to proceed assuming that the College was subject to the alleged duty of care, albeit recognising that there are persuasive arguments to the contrary which, unfortunately, the College did not make, its submissions amounting to little more than a bare denial that any duty of care existed.
Section 32 of the Civil Liability Act, as noted, provides that a person does not owe a duty of care to take care not to cause mental harm to another person “unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken”. It seems to me that if the relevant conduct is characterised as the investigation of a potential disciplinary matter then the College ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken in the investigation. Disciplinary matters are inherently stressful for those involved. A person of normal fortitude under disciplinary investigation will inevitably feel highly anxious. This context, in my view, creates a real and foreseeable risk of psychiatric harm to a person of normal fortitude if reasonable care is not taken in the process. Section 32 thus does not preclude recognition of the alleged (and for this purpose, assumed) duty of care.
5.4 Alleged breaches of the duty of care
A further difficulty I have with Dr Sklavos’s case (apart from doubt about the alleged duty of care) is that the evidence does not support any conclusion of a breach of the assumed duty of care. Nor does it support an inference that Dr Sklavos’s recognised psychiatric injury (his specific phobia) was caused by the clinic list conduct.
Dealing first with causation, the relevant provisions are ss 5D and 5E of the Civil Liability Act – the negligence (if found) must be a necessary condition of the occurrence of the harm and it must be appropriate for the scope of the tortfeasor’s liability to extend to the harm so caused. Dr Sklavos bears the onus of proving these matters. I am not satisfied that the onus has been discharged in this case. It is not appropriate to say too much in this regard because the case put for Dr Sklavos did not confront any of the difficulties of causation involved either at the level of fact or principle.
It is sufficient to observe that the “necessary condition” test is a statutory version of the traditional “but for” test of causation. In Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 these observations were made:
[18] The determination of factual causation under s 5D(1)(a) is a statutory statement of the “but for” test of causation: the plaintiff would not have suffered the particular harm but for the defendant’s negligence. While the value of that test as a negative criterion of causation has long been recognised, two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff’s harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm.
…
[20] Under the statute, factual causation requires proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant’s conduct may be described as contributing to the occurrence of the harm. (footnotes removed)
In respect of the relationship between the requirement that the negligence be a “necessary condition” of the harm and that the negligence be a “material cause or contributor” to the harm, this was said:
[24] The Ipp Report distinguished the concept of “material contribution to harm” applied in Bonnington Castings [[1956] AC 613] from the use of the same expression merely to convey “that a person whose negligent conduct was a necessary condition of harm may be held liable for that harm even though some other person’s conduct was also a necessary condition of that harm”. Allsop P made the same point in Zanner v Zanner [[2010] NSWCA 343 at [11]]:
[T]he notion of cause at common law can incorporate “materially contributed to” in a way which would satisfy the “but for” test. Some factors which are only contributing factors can give a positive “but for” answer.
His Honour illustrated the point by reference to two negligent drivers involved in a collision that is the result of the conduct of the first, who drives through the red light, and of the second, who is not paying attention. His Honour went on to observe:
However, material contributions that have been taken to be causes in the past (notwithstanding failure to pass the “but for” test) such as in Bonnington Castings Ltd v Wardlaw [1956] AC 613 are taken up by s 5D(2) which, though referring to “an exceptional case”, is to be assessed “in accordance with established principle”.
[25] This observation is consistent with the discussion in the Ipp Report of cases in which an “evidentiary gap” precludes a finding of factual causation on a “but for” analysis and for which it was proposed that special provision should be made. The Ipp Report instanced two categories of such cases. The first category involves the cumulative operation of factors in the occurrence of the total harm in circumstances in which the contribution of each factor to that harm is unascertainable. Bonnington Castings was said to exemplify cases in this category. The second category involves negligent conduct that materially increases the risk of harm in circumstances in which the state of scientific or medical knowledge makes it impossible to prove the cause of the plaintiff’s harm. Fairchild v Glenhaven Funeral Services Ltd [[2003] 1 AC 32.] was said to exemplify cases in this category.
[26] Section 5D(2) makes special provision for cases in which factual causation cannot be established on a “but for” analysis. The provision permits a finding of causation in exceptional cases, notwithstanding that the defendant’s negligence cannot be established as a necessary condition of the occurrence of the harm. Whether negligent conduct resulting in a material increase in risk may be said to admit of proof of causation in accordance with established principles under the common law of Australia has not been considered by this court. Negligent conduct that materially contributes to the plaintiff’s harm but which cannot be shown to have been a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation, subject to the normative considerations to which s 5D(2) requires that attention be directed. (footnotes removed)
The potential issues which these observations create for Dr Sklavos’s claim were not explored by the parties. What is clear is that the clinic list conduct occurred in 2009. Dr Sklavos only developed his specific phobia in the latter half of 2011 (at the earliest), after he had failed the 2011 written examination, having previously failed the 2010 written and clinical examinations. His specific phobia was initially about the examinations only. It has subsequently expanded to include any assessment by the College. This evidence weighs against any conclusion that the clinic list conduct as alleged was a necessary condition of the development of Dr Sklavos’s specific phobia (as required by s 5D(1)(a)) of the Civil Liability Act). It is not reasonably possible to see the disciplinary investigation as a whole as a necessary condition in this regard. While the investigation reinforced Dr Sklavos’s beliefs about a conspiracy against him, he held conspiracy-style beliefs about the College before he was admitted as a trainee, as a result of the long time it took him to get admitted and his perception that he had to complete his PhD to be admitted to the training program. He was also highly anxious about the College even before he started the training. Having then failed the examinations twice, Dr Sklavos’s peculiar vulnerability to an anxiety disorder, of itself constituted a necessary and sufficient cause of his specific phobia. In other words, the weight of the evidence indicates that Dr Sklavos would have suffered from his specific phobia in late 2011 whether or not the clinic list conduct, or the disciplinary investigation as a whole, had or had not occurred. The many other events he perceived to be adverse to him in his dealings with the College, taken with his examination failure, are more than a sufficient explanation for the development of the specific phobia given the evidence from the psychiatrists about Dr Sklavos’s personality traits. At best for Dr Sklavos there is an “evidentiary gap” which might suggest that this is a case where “the cumulative operation of factors in the occurrence of the total harm in circumstances in which the contribution of each factor to that harm is unascertainable”.
These matters would indicate that the requirements of s 5D(1)(a) of the Civil Liability Act are not satisfied in this case. If this is so then, had I found the College in breach of the assumed duty of care owed to Dr Sklavos (which I do not), it would have been necessary to consider the operation of s 5D(2), another issue not dealt with by the parties. Given this, I will say only that I doubt that any conclusion that the College should be held responsible for Dr Sklavos having developed a specific phobia about the College assessing his competence to be a dermatologist would be reasonably open.
Similarly, s 5D(1)(b) of the Civil Liability Act, the scope of liability issue, also remained largely unexplored. There are real questions in this matter, if negligence had been found, as to why it might be appropriate for the scope of the College’s liability to extend to Dr Sklavos having developed his specific phobia. Dr Sklavos knew he was highly anxious about the College before he took up the offer of a training position. He knew he would be subjected to ongoing assessment and that, if there was any suggestion of misconduct by him, the College inevitably would commence a disciplinary investigation. He had a peculiar vulnerability to the development of an anxiety disorder of which he and the College were unaware. His personality traits, over which the College had no control, made him likely to perceive any interaction with the College about his performance as hostile and threatening. The College is performing a valuable public service. There is a public interest in the College being able to assess competency of trainees without fear of being held liable for psychiatric injury which might result from the ordinary application of assessment and investigation processes. All of these matters, and probably more, would have to be taken into account under s 5D(1)(b).
In respect of the alleged breach of the assumed duty of care, even if the clinic list conduct was a necessary condition of Dr Sklavos developing a specific phobia, there are other fundamental problems for the claim in negligence. The overriding problem is that the propositions put for Dr Sklavos fail to recognise that the relevant standard of care is to be assessed having regard to the context of the College investigating Dr Sklavos for serious misconduct for the purpose of determining whether he should be penalised (including by potential dismissal as a trainee). As such, the context is one involving a high likelihood of extreme stress and anxiety, none of which the College could avoid no matter what it did.
According to the submissions for Dr Sklavos, a reasonable person in the position of the College would have taken precautions against the risk of harm to Dr Sklavos in investigating allegations made regarding his professional conduct by:
(i) not relying on untested hearsay allegations;
(ii) taking sufficient steps to verify the material before it;
(iii)according Dr Sklavos a sufficient opportunity to respond to the allegations; and
(iv)not operating on false assumptions (for example, that Dr Sklavos had acknowledged that he had not seen patient CM);
It is not apparent what standard of care the submissions for Dr Sklavos are attempting to apply to the College in carrying out its disciplinary functions. It seems that the submissions treat the College as if it were a court bound by the rules of evidence and by particular requirements of natural justice which do not necessarily apply to a body such as the College.
It follows that the characterisation of the information given to Dr Relic as “untested hearsay” is beside the point. It was information on which the College was reasonably able to rely. It was supported by the other information already discussed (the attendance list and the content of the letter written by Dr Sklavos). Dr Relic compared the letter to CM’s actual condition and took steps to verify the material by finding the attendance list. Dr Sklavos was provided with an opportunity to respond to the concerns in both the interview and thereafter, opportunities which he took. The College was not operating on a false assumption that Dr Sklavos had acknowledged he had not seen CM. The College was right to operate on the basis that all available material supported the conclusion that Dr Sklavos had not seen CM, and this remains the position today. Dr Sklavos’s response remained the same at all times during and after the interview, that he did not know if he had seen CM, would not have written the letter if he had not seen her, and could not otherwise explain the letter other than perhaps a temporary file had been created or a mistaken attribution of patient notes had occurred. His denials and reference to possible explanations were not persuasive to the College, and rightly so. Dr Sklavos thus had a real opportunity to make his response known.
It was also put that the College should have taken greater care in investigating Dr Sklavos’s conduct (including the steps referred to above) prior to reporting the relevant allegations to the NSW Medical Board or anyone else. Again, I disagree. Once it had given Dr Sklavos an opportunity to respond and received his response, it was appropriate for the College to reach its own view about the matter and refer it on to the NSW Medical Board. This is so whether or not some Fellows of the College had reached a conclusion regarding Dr Sklavos (albeit one subject to new material altering the position, such as Dr Brown) or whether they understood that the NSW Medical Board would carry put an investigation and the College’s decision on sanctions would await the completion of that investigation.
The same conclusions apply to the allegation that greater care should have been taken before the College concluded that Dr Sklavos engaged in serious misconduct and decided to sanction him. As set out above, I consider that the College reasonably reached this view on the available material and was justified in deciding to sanction Dr Sklavos. The fact that the Board of Directors later reversed the sanction does not establish any breach of the duty of care in the Board of Education deciding to have imposed the sanction. Nor does it establish that the sanction as imposed was disproportionate. In any event, how any of these matters constitute the failure to take reasonable care to avoid psychiatric harm to Dr Sklavos remains unexplained.
The same conclusions also apply to each of the other things it is said the College should have done but did not do including taking into account the consequences to Dr Sklavos of a referral to the NSW Medical Board, taking greater care to prevent knowledge of the referral spreading, and correcting or clarifying “unjustified or false perceptions” about Dr Sklavos after the findings made and disciplinary action were overturned by the Board. My comments about all these matters are set out above but it is also relevant to say that I do not see how the College failed to fulfil the duty of care by reason of them.
In summary, nothing in the College’s conduct in respect of the clinic list incident indicates any failure on the part of the College to take reasonable care to avoid the risk of psychiatric injury to Dr Sklavos. It follows that the negligence claim must also fail. No other conduct is relied upon. In particular, it is not suggested that anything the College did or did not do in respect of the examinations in 2010, 2011 or 2012 is relevant to the negligence claim. If it be relevant, I do not consider that a person of normal fortitude would have developed a specific phobia to the College’s examinations by reason of failing the examinations in 2010 and 2011 (which I consider to be the cause of Dr Sklavos’s phobia) in any event.
Consistent with my position about contractual damages, I will say something more about the damages issue separately.
6. DAMAGES AND COMPENSATION
As I have rejected Dr Sklavos’s claims (other than in one respect which I consider immaterial) the claims for compensation and damages cannot be sustained.
Despite this, it is appropriate to make some observations about why, irrespective of my conclusions, I consider that no loss has been proved. I will do so briefly given that the issue is hypothetical having regard to my conclusions.
First, the claims for damages (and compensation) are based on the assumption that, without the alleged unlawful conduct (as variously identified), Dr Sklavos would have been made a Fellow of the College in 2012 or subsequently. That assumption is not sound. At best, Dr Sklavos had a chance of satisfying the College’s requirements so as to enable election as a Fellow. At least three other trainees, apart from Dr Sklavos, have not managed to satisfy those requirements and have not been elected Fellows. Any assessment which treats as certain that Dr Sklavos would otherwise have been elected as a Fellow of the College is misconceived. At best, his case (accepting all of his claims for this purpose) involves the loss of a chance. Given his performance in the 2010 clinical examinations, which was before he had developed his specific phobia, his chance of satisfying the College of his competence to practice (by whatever method might have been theoretically possible) could not be rated highly.
Second, the claims are based on an assumption that – having been elected as a Fellow – Dr Sklavos’s practice as a dermatologist would have developed along the same lines as dermatologists that Dr Sklavos selected as comparable to him, in that they have entrepreneurial instincts and are dedicated and hard working. Given the difficulties Dr Sklavos has had at every step in his attempts to become a trainee of the College and whilst a trainee, his self-assessment of comparable dermatologists is difficult to accept. Again, at its highest, Dr Sklavos had some, but not a great, chance of developing a practice as successful as those other dermatologists he had selected.
Third, the accounting evidence of Mr Slattery assumes that Dr Sklavos’s hypothetical earnings should be compared to what he managed to earn over one period (July to September 2014) working full time as a locum general practitioner. It will be apparent that this comparison is between Dr Sklavos as a hard-working, dedicated and entrepreneurial dermatologist with Dr Sklavos as a general practitioner who, while working full-time, was doing so as a locum in a practice which was not his own. While Dr Sklavos gave evidence that his passion is dermatology not general practice, I do not accept that his asserted qualities of being hard-working, dedicated and entrepreneurial (assuming they exist) can be applied to one side of the ledger and yet ignored on the other. It is understandable that Dr Sklavos might work as a locum general practitioner while involved in this litigation in which, amongst other things, he seeks an order that the College elect him as a Fellow. It does not follow that if he is unable to practice as a dermatologist, Dr Sklavos will be content for the rest of his working life to take on short stints as a locum general practitioner in other practices.
The fact that Dr Sklavos is not a vocationally registered general practitioner (which allows higher Medicare rebates to be claimed for certain items) does not mean that he would not be able to establish a general practice about which he could be as hard-working, dedicated and entrepreneurial as he says he would have been in respect of the dermatological practice he said he would have established. Yet there is no evidence about what a hard-working, dedicated and entrepreneurial general practitioner (vocationally registered or not) might earn throughout a career. As such, the actual future earnings side of the ledger is not the subject of any reliable evidence, making it impossible to assess loss. This is not a case where an assessment can be made doing the best that can be done. One side of the ledger is simply unreliable and unrealistic, leaving the quantification of loss unknown. For all I know there may be no loss at all. A hard-working, dedicated and entrepreneurial general practitioner may have less, the same or even a greater earning potential than a dermatologist. These are matters for proof. What I can say is that I do not accept that evidence of what Dr Sklavos in fact earned in his best three month period as a locum general practitioner while he was involved in this litigation represents a reasonable view of his earning potential as a general practitioner. The duty to do the best I can in assessing damages does not extend to speculating about whether any loss has been suffered at all when it was within the power of Dr Sklavos to call such evidence. Some loss at least must be proved by evidence before the court may then try to do the best it can to assess the loss. Contrary to the submissions for Dr Sklavos, it was not up to the College to call such evidence.
It follows that the requirement in s 13(1) of the Civil Liability Act (a “court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury”) is not met in this case.
Fourth, and as will be apparent, I do not give weight to Dr Sklavos’s evidence that he “would find it difficult to work as a general practitioner on a long-term basis, as it is a career for which he has no passion”. While not tested in cross-examination, such obviously self-serving evidence is not required to be taken at face value. It is evidence given while the proceedings are on foot and while Dr Sklavos hopes to be made a Fellow of the College. It is evidence of a state of mind that has nothing to do with any allegations against the College. It follows that I do not accept the submission that the calculations of Mr Slattery over-estimate Dr Sklavos’s earnings potential as a general practitioner. This is so irrespective of whether Dr Sklavos wishes to become a vocationally registered general practitioner or not. General practitioners are not required to be vocationally registered. Nor are they required to bulk bill, therefore the Medicare rebate is not the limit of earning capacity. It would be open to Dr Sklavos to develop his own general practice (an option available to him since he practically ceased training at the College) if he chooses to do so, bringing to bear the dedication and entrepreneurial skills he says he would have applied to a dermatological practice if he chooses to do so. There would be no rational reason to assess damages on any other basis.
Fifth, Mr Slattery’s calculations do not appear to make any allowance for the vicissitudes of life. While such an allowance can be made by the Court, there is no purpose in so doing when any loss remains in the realm of mere speculation.
Sixth, the notion of contractual damages for Dr Sklavos’s anxiety related distress is not relevantly distinguishable from the rejection of that claim in Shahid at [233]. The College never promised Dr Sklavos an anxiety-free environment. It was obvious that the training program involved the potential for highly stressful experiences including, but not limited, to ongoing assessments, potential disciplinary issues and the need to pass the final examinations. Insofar as there was a contract it was not one the object of which was to ensure Dr Sklavos was not made anxious or stressed throughout the course of his training (Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344 at 365). To the contrary, it must have been clear to all trainees of the College that they were embarking on a program which would involve potentially high levels of stress and anxiety by reason of the requirement for ongoing assessment of performance and the risk that disciplinary issues might need to be investigated and acted upon during their training.
The submissions on behalf of Dr Sklavos to the contrary based on the alleged terms being intended to “provide Dr Sklavos with an environment in which he will not experience anxiety or psychiatric injury” lose sight of the true nature of the relationship between Dr Sklavos and the College. The environment of a trainee for a specialist medical qualification, where trainees know they will face a program of ongoing assessment and examination over years, focused solely on the quality of their performance, is one that inevitably involves substantial stress and anxiety. The College could not be found to have contracted with Dr Sklavos to provide him with an environment in which he will not experience anxiety or the risk of psychiatric injury as a result – the potential for both is inherent in the nature of the training program irrespective of any breach of any obligation to which the College might be subject. The circumstances are thus not analogous to those considered in Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 at [315]-[317].
Seventh, Dr Sklavos accepted that his contractual and tortious claims were subject to the restrictions in the Civil Liability Act as, if successful, any award of damages would be “an award of personal injury damages” as provided for in s 11A of that Act. As such, s 12 would apply to limit damages for past and future economic loss to an amount equal to three times the amount of average weekly earnings at the date of the award. Further, s 14 would apply which involves a prescribed discount rate greater than that applied by Mr Slattery. Dr Sklavos’s submissions did not explain why, insofar as he claimed for economic loss as part of his claim for compensation under the AHRC Act, the same approach would not be taken given the terms of ss 5A and 11A of the Civil Liability Act. For present purposes it is not necessary to resolve the question whether an order for compensation under s 46PO(4)(d) of the AHRC Act may also be, in whole or part, be an award of damages within the meaning of ss 5A and 11A of the Civil Liability Act. I received insufficient submissions from the parties to venture any view about this question. However, given that an order for compensation under s 46PO(4)(d) of the AHRC Act is discretionary, insofar as Dr Sklavos’s claims for compensation were based on loss of past and future earning capacity by reason of personal injury, it is difficult to see why, as a matter of principle, a court would order damages greater than could otherwise be obtained against the same defendant. Similar considerations would apply to non-economic loss which is limited by s 16 of the Civil Liability Act, which Dr Sklavos accepted applied to his claims in contract and tort.
Otherwise, there is no basis on which to sustain any of the other aspects of Dr Sklavos’s compensation claims. He is not entitled to any refund of the training levies he paid in each year up to 2011. Apparently, he paid $3,660 to sit the examinations in 2012 which he never sat. It is not clear to me (and was not a part of the case in any real way) if he was entitled to a refund of this fee, given that he withdrew from the examinations. I was not taken to any document explaining the College’s refund policy, if there is one. If there is a policy on refunds, then no doubt the College should act in accordance with it. The costs of the proceedings before the AHRC are not refundable to Dr Sklavos by the College. Dr Sklavos has not succeeded in his discrimination claims in this proceeding so those costs must be to his own account.
The pain, distress and humiliation Dr Sklavos suffered were not a result of any breach of obligations owed to him by the College. The College was justified in the actions it took in respect of the clinic list incident irrespective of the fact that Dr Sklavos undoubtedly suffered pain, distress and humiliation as a result of the investigation of his conduct and the sanction imposed on him. The further pain, distress and humiliation Dr Sklavos suffered by reason of failing the 2010 examinations was caused only by the fact of failure, not by any conduct of the College. To the contrary, the error the College made gave Dr Sklavos an opportunity to become a Fellow in 2010 by passing the 2010 clinical examination despite not having passed the written examination. The College’s requirement that Dr Sklavos re-sit the written examination in 2011 (and thereafter), which no doubt caused him further distress, was consistent with the College’s published requirements. It was not discriminatory or in breach of any legal obligation which the College owed to Dr Sklavos. The College’s refusal to elect Dr Sklavos as a Fellow in 2012 based on his qualifications and experience was appropriate based on the information available to it and in all of the circumstances. The College’s refusal to waive its requirement that Dr Sklavos pass the examinations was not discriminatory or otherwise unlawful. Nor was its response to his request for adjustments to be made to the examinations given his specific phobia. I have no doubt that all of these matters caused Dr Sklavos significant distress, but the distress is not compensable by the College merely because it is his perceptions of the interactions with the College which have resulted in the distress. Given the lack of a legal foundation for any claims for damages, the additional claims for aggravated damages are immaterial.
7. CONCLUSIONS
I consider that Dr Sklavos’s claims against the College cannot be accepted. The amended originating application should be dismissed with costs.
I certify that the preceding four hundred and forty-one (441) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 1 March 2016
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