Symons v Whittington

[2018] NSWDC 239

District Court

New South Wales

Medium Neutral Citation:

Symons v Whittington [2018] NSWDC 239

Hearing dates:

13 – 17, 20 – 23 August 2018

Date of orders:

23 August 2018

Decision date:

23 August 2018

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Verdict and judgment for the defendant against the plaintiff.

Plaintiff to pay the defendant’s costs

Catchwords:

CIVIL – TORTS – Professional negligence of medical practitioner

 

CIVIL – CONTRACT – Breach of contract of medical practitioner

CIVIL – LIMITATIONS – Limitation of Actions Act 1974 (Qld) s 11(1) – Whether contract made in Qld – Whether tortious acts occurred in Qld – Last treatment of patient by doctor more than 3 years before action commenced

Legislation Cited:

Forensic Disability Act 2011
Limitation of Actions Act 1974 (Qld)

Cases Cited:

Gerace v Auzhair Supplier Pty Ltd [2014] NSWCA 181

Category:

Principal judgment

Parties:

Kerri Annette Symons (Plaintiff)
Mark Anthony Whittington (Defendant)

Representation:

Counsel:
In person (Plaintiff)
Mr M Hutchings (Defendant)

  Solicitors:
In person (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s):

2016/247224

Publication restriction:

Nil

Judgment

1. HIS HONOUR: This is a very complex case, and a very sad case.  The plaintiff, Ms Kerri Annette Symons, commenced these proceedings by a statement of claim filed here at Lismore on 17 August 2016.  The plaintiff has not at any time acted through a lawyer.  Perhaps that is because the plaintiff has a law degree, and practised as a solicitor from 1979 until 2003.  The last time she held a practising certificate was in 2003, and the inference to be drawn is that, as far as New South Wales is concerned, her practising certificate expired on 30 June 2003.

2. The plaintiff read law at the Australian National University, and was admitted to practice in both New South Wales and Victoria.  In 1979, she started working for a solicitor, Mr David Crapp, at West Ryde.  Mr Crapp had a general practice and the plaintiff worked for him for three years.  She then moved to Melbourne and worked with Barker Harty, who had their offices in Collins Street, Melbourne.  The plaintiff worked for that firm for just under three years. In 1986 she read for admission to the Bar of Victoria.  The plaintiff told me that she did a bar admission course, and read with Mr Philip Kennon QC, but appears not to have practised as a barrister, because of her marrying for the third time in 1987.  She then kept her practising certificate but worked for companies owned by her or by her husband.  She divorced in 1991, but still appears to have worked for her own companies until 1995, when she started working for Delduca and Associates in Pitt Street, Sydney.  The plaintiff worked for that firm for seven years until 2002.  In the first half of her work as a lawyer, the plaintiff practised in family law, and in the latter part of her practice, she worked in construction law.

3. It is clear, however, the plaintiff was not involved in much, if any, common law litigation.  The way these proceedings have been conducted shows that the plaintiff has lost most of the skills that she would have developed to be a family law practitioner, but that may be because of the mental health condition which she has, which lays behind the current proceedings.

Plaintiff’s background

4. The plaintiff's background, as far as her mental health is concerned, is extremely complex.  There are various descriptions of it.  As a child, the plaintiff had what she referred to as giant hives, which led to eight admissions to hospital between the ages of eight and 18.  On at least two of those admissions, the plaintiff required intubation because the hives had blocked her windpipe, and perhaps her oesophagus.  The evidence discloses one particular admission to the Royal Children's Hospital in Melbourne, at the age of eight, and another admission at the Geelong Hospital at the age of 14.

5. The plaintiff's family history was also very complex.  I need only mention it briefly.  The plaintiff appears to have been the fruit of a loveless marriage and there is reference to the plaintiff's parents only talking to each other when they needed to discuss the plaintiff herself.  The plaintiff did very well in her secondary education.  The evidence discloses that she gained first class honours in all the subjects she studied for her higher school certificate, and gained the highest mark in the higher school certificate in Victoria in, I infer, 1968.  She won scholarships to Melbourne University and St Hilda's College at Melbourne University.  She read arts between 1969 and 1971, studying both Economics and English.

6. On 19 February 1972, she married Mr Russell Symons, whose surname she still uses.  The plaintiff's daughter, Jesse, is the fruit of the plaintiff's first marriage.  She was born on 27 August 1978.  The circumstances preceding and succeeding the plaintiff's first marriage appear to have been stormy.  There were hospital admissions, probably on at least two occasions, during one of which the plaintiff underwent a termination of pregnancy which has caused her to feel anger and guilt for many years subsequently.  There were also admissions of a psychiatric nature.

7. According to exhibit V, the plaintiff had six suicide attempts between 1969 and 1971, although the plaintiff would not admit that many suicide attempts in her early life.  Exhibit V tells me that as a result of the suicide attempts, the plaintiff was admitted to both the Royal Melbourne Hospital, St Vincent's Hospital, I infer in Melbourne, and the Austin Hospital.  In 1971, there was an involuntary admission, according to exhibit V, to the Austin Hospital, where the plaintiff was diagnosed as being manic depressive.  She was then cared for by a father and son team of psychiatrists, Dr Ainslie Meares and his son, Dr Russell Meares.  According to the plaintiff, they did not treat her with any medication, rather with counselling. 

8. Manic depression is now known as bipolar disorder, Dr Dick Williams’ report of 31 October 2016, part of Exhibit DD, tells me that. The evidence describes Bipolar Disorder, Bipolar Affective Disorder and Bipolar II Disorder.  There is nothing before me to indicate whether those are discretely different conditions or whether they are merely alternative diagnostic monikers.  I shall use the term "Bipolar Affective Disorder" which is the term used by the defendant and can be conveniently abbreviated to "BAD." The defendant diagnosed BAD and the plaintiff's subsequent specialist treating psychiatrist, Dr Richard Williams, also diagnosed BAD. 

9. The plaintiff told me that at the age of 20, which would have been in 1970 or 1971, she became an alcoholic.  The plaintiff told Dr Gallogly, "I drank as much as I possibly could, to alleviate anxiety and depression." The plaintiff suffered from alcoholism on her own admission until 1989 when she was admitted to the Northside Clinic in Sydney for four weeks for treatment for that condition.  According to the history given by the plaintiff to Dr Gallogly she did not have any alcoholic drink for the next 20 years and she attended Alcoholic Anonymous every week during that 20 year period.  The evidence also describes the plaintiff as having attended AA meetings sometimes twice weekly.

10. Preceding the plaintiff's admission to the Northside Clinic for treatment for her alcoholism, she was an involuntary patient at the Royal Park Psychiatric Hospital in Melbourne for three weeks.  She made an attempt to take her own life by cutting her arm with a scalpel.  The plaintiff told me in her evidence‑in‑chief that in 1986 when sober she cut her wrists with a scalpel in an attempt to commit suicide while she was alone in a house.  She told me that she intended to take her own life and that led to her involuntary admission to the Royal Park Psychiatric Hospital for two weeks, albeit exhibit B refers to the admission being for three weeks.

11. The plaintiff told me that her success in her secondary education was not because of native intelligence but because she was obsessive in her studies, a perfectionist. That is consistent with her having suffered from BAD during her schoolgirl days.

12. In about 1987 the plaintiff had moved to the Northern Rivers area of New South Wales and became very interested in and committed to developing an organic soft drink which can be shortly described as Organic Wort.  Between 1991 and 1995 the plaintiff came under the care of Dr Ian Cole, a psychiatrist, at Murwillumbah.  Dr Cole treated the plaintiff for manic depression according to exhibit V.  The plaintiff stopped seeing Dr Cole when he told the plaintiff she should take lithium.  She refused to take that drug and left Dr Cole's care. Subsequently, Dr Cole himself was admitted to the Richmond Clinic, a psychiatric hospital here in the Northern Rivers.  He sought the plaintiff's help to have himself discharged from that institution but the plaintiff did not feel that she could do so.  Dr Cole then took his own life and that has been the subject of ongoing feelings of guilt suffered by the plaintiff. 

13. Exhibit V tells me that the plaintiff had two admissions to the St Edmonds Hospital, I infer a private hospital, each of four weeks, one in 1995 and the other in 2000.  However, Dr Gallogly only has a history of one such admission.  That history is this:

"Ms Symons told me she was admitted to St Edmonds Private Mental Health Clinic in 1986.  She said, 'I admitted myself because I was agitated and depressed.'  She reported this was for four weeks and said that, 'After four weeks I was worse so I discharged myself and went back to work."

14. In 2004 the plaintiff resumed drinking alcohol.  The evidence does not tell me why she did so. On 30 October 2005, a very close friend of the plaintiff, Mr Roger Leslie, committed suicide.  Mr Leslie had been the plaintiff's friend for 36 years.  He was a friend of several of the plaintiff's other friends.  In her evidence to me, the plaintiff described Mr Leslie as being schizophrenic.  She had been speaking to him every day for six months immediately prior to his death.  She was the last person to speak to him at 8pm either on the day of or the day before he took his own life.  It was Mr Leslie's death that prompted the plaintiff to seek to be referred to a specialist psychiatrist.  To seek that referral, the plaintiff visited Dr Brian Hawney on 21 December 2005 who referred the plaintiff to the defendant.

Plaintiff consults the defendant

15. The defendant first saw the plaintiff on 13 January 2006.  It is the defendant's treatment of the plaintiff that underlies the current proceedings.  In considering the history, one also has to bear in mind that the plaintiff was diagnosed by Dr Geoffrey Boyce with stiff person syndrome on 16 May 2003.  That is generally treated by the taking of the drug Valium, not as a tranquiliser as such but probably more because of its value as a muscle relaxant.  Dr Hawney was practising at the Currumbin Medical Centre. The plaintiff wanted to be referred to a Queensland psychiatrist and told me that she had concerns about the quality or reliability or confidentiality of psychiatrists in New South Wales.  That led to her referral to the defendant who at all relevant times carried on practice as a specialist psychiatrist at The Evandale Practice at 142 Bundall Road, Bundall in the State of Queensland.  The plaintiff told me that Bundall is on the Gold Coast.  At the time that the plaintiff was referred to Dr Whittington, the defendant, she was then taking the drug known chemically as paroxetine which has at least two proprietary names: Aropax and Paxil.  The evidence does not tell me who first prescribed that medication for the plaintiff.

16. Exhibit A is a typescript of the manuscript records made by the defendant of his treatment of the plaintiff.  It has taken me 12 hours to read those records and to annotate them.  The annotations I have made amount to 17 A4 pages.  The last consultation recorded in the notes of the defendant was on 30 July 2013.  However, the plaintiff and the defendant certainly interacted thereafter.  Exhibit BB indicates that the last prescription for the plaintiff written by the defendant was written on 1 August 2013.  Exhibit D is a request directed by Dr Whittington to South Coast Radiology for the making of an MRI scan of the cervical spine.  The clinical notes recorded are these:

"Pain

Decreased flexion and extension

Severe headaches

Problems sitting and walking

Head heavy

Neck sore and weak"

17. Exhibit FFF is an email sent by the defendant to the plaintiff on 10 August 2013.  Apparently, the plaintiff had given some pearls to the defendant and, by this stage, the plaintiff wanted the pearls back.  The email says this:

"I was very appreciative of the gift of the pearls.  The next time John [Watson] is passing, I will return them.  Kerri, I understand you are over it and want out, could you please just let me know what you would like me to do to disengage ie directorships et cetera.  Obviously, you will do what you will do, if there is anything you would like me to do, please ask.  Whilst you clearly are very angry, I don't see how this helps you at all, upset, sleeplessness and the inevitable consequence of pain.  I suggest you check that you are taking your medication appropriately, even take extra Seroquel to settle.  Please take Aspirin as you are always at risk.  See if you can get in to Dr Williams early as I am clearly unable to be of help when you are so upset."

The email ends with the doctor's Christian name.

18. The only other objective fact of a relationship persisting between the plaintiff and the defendant thereafter is that on 23 August 2013, 30 September 2013, 23 December 2013, 8 October 2013 and 6 February 2014, the plaintiff filled scripts for desvenlafaxine, the chemical name for the drug known as Pristiq, but the scripts for that medication had been written by Dr Whittington on either 21 or 28 March 2013.  Furthermore, it has to be noted that the plaintiff first saw Dr Richard Williams on 19 August 2013, according to his report of 15 May 2018, or 29 August 2013, according to the doctor's report of 24 October 2016.  The doctor's primary report is that dated 15 May 2018. The plaintiff was referred to Dr Williams by Dr Zekri Palushi, who had renewed the plaintiff's referral to the defendant on 21 March 2012.  Exhibit BB tells me that Dr Palushi wrote a number of scripts for the plaintiff on 15 August 2013 and 23 August 2013, and that Dr Williams wrote his first script for the plaintiff on 29 August 2013, which indicates that 29 August rather than 19 August was the date on which the plaintiff first saw Dr Williams.

The pleadings

19. The plaintiff's cause of action against the defendant needs to be considered.  The plaintiff relies on a further amended statement of claim filed on 1 September 2017, pursuant to an order that I made on 24 August 2017.  Paragraph 38 commences thus:

"On 13 January 2006, the plaintiff attended The Evandale Practice to consult the Defendant with her daughter Jesse Symons and granddaughter, Jordan, in the waiting room.  The plaintiff entered into a contract with the defendant pursuant to the contract the plaintiff made known to the defendant on 15 January 2006, 18 January 2006 and 31 January 2006, the particular purpose for which the consultations were required, and it was a term of the contract that the plaintiff paid the defendant $140.00 per consultation, and the defendant agreed to the duty of conduct of a specialist psychiatrist, and the following terms and conditions."

Then follow particulars numbered 1 to 7, which I infer record terms of the contract implied by law.

20. Paragraph 40 of the statement of claim is this:

"The defendant owed a duty of care to the plaintiff as a professional psychiatrist from 15 January 2006 until 2014, and any risk to the plaintiff of his advice and treatment was foreseeable and was not insignificant in 2006."

Again, that allegation raises the defendant's duty of care to the plaintiff, and clearly refers to a claim in the tort of negligence.

21. Paragraph 92 is this:

"The defendant was under a duty of care to the plaintiff to exercise all due professional skill, care and attention as a specialist psychiatrist in the treatment and management of the plaintiff from 15 January 2006 until the August 2013 [sic].  The Defendant breached the implied terms of his contract of conduct under paragraph 38 and the code of conduct of the AMA with the Plaintiff to exercise all due professional skill, care and attention as a specialist psychiatrist in the treatment and management of the Plaintiff."

Thereafter, there are particulars numbered 1 to 9.  Particular 1 is this:

"The defendant failed to maintain confidentiality and broadcasted and divulged clinical information to Alison Morell and Frank Bright and other patients."

That appears to refer to first implied term of the contract pleaded under paragraph 38 of the statement of claim.  Particular 5 is this:

"The defendant exploited the plaintiff emotionally, financially and failed to monitor or treat her untreated post‑traumatic abuse since childhood."

That appears to restate an allegation that the defendant's conduct towards the plaintiff was unprofessional or improper.  Particular 6 relates to a failure to warn.  Particular 7 specifically refers to a breach of contract.  Particular 9, the first of two, says this:

"The defendant ignored the steps in a patient termination process and ignored an adverse clinical outcome of the plaintiff who was in crisis on 8 August 2013 and the plaintiff claims damages...".

22. Paragraph 93 of the statement of claim is this:

"In the course of such treatment from January 15, 2006 until April 2014 the defendant failed to exercise all due professional skill, care and attention and was negligent and failed to act in a manner that is widely accepted by peer professional opinion as competent professional practice, and was negligent by failing to monitor the plaintiff's extreme vulnerability to physical and psychiatric injury from [central nervous system] and antipsychotic medications and failed to warn her or the material risk of her adverse reaction could end her working and sex life and in breach of his duty his treatment was unnecessary, improper and of a gratuitous aggravation of the plaintiff's pre‑existing physical and psychiatric injuries."

Again the allegation is in essence an allegation of negligence, breach of duty of care, and that duty of care arose both under a contract and at common law in the tort of negligence.

23. Then follows a number of subparagraphs each of which appears to be a particular of negligence.  The pleading is hardly satisfactory but they can be summarised thus: a failure of the defendant to advise the plaintiff of the risk of taking medication which he prescribed for her, and failure to advise the plaintiff or warn her of what might be unwanted side effects such as sexual dysfunction. There is also an allegation of prescribing psychotropic medication without obtaining the informed consent of the plaintiff.  There is an allegation of prescribing wrong medications and wrong dosages.  There is an allegation of failing to regularly monitor and observe the plaintiff following her taking the medication which he provided to her or prescribed for her.  There is an allegation of failing to properly investigate the plaintiff's physical injuries, and an allegation that the defendant failed to correctly diagnose the plaintiff.  There is also an allegation of failure to keep proper records of medications prescribed to her and to document changes in her health which ought to have been apparent to him.

24. The paragraph numbered 93.4 is this:

"The defendant used his professional position to establish an exploitative relationship and the defendant's negligence was a necessary of the Civil Liability Act condition under s 5D(1)(a) and the plaintiff's condition could have been brought under control rapidly in May 2006 if the defendant had not breached his contract and statutory obligations and fiduciary duty and informed the plaintiff and her daughter the severe tremors were caused by Epilim."

That paragraph essentially contains two allegations, the first being that the Epilim prescribed by the defendant for the plaintiff had, as a side effect, a severe tremor of which side effect the plaintiff was not informed by the defendant.  Preceding that is an allegation that the defendant acted unprofessionally and improperly in establishing an exploitative relationship with her.  There is, in particular, reference to a breach of fiduciary duty but that fiduciary duty arises out of the relationship of doctor and patient.  It arises out of a contract and it also arises because of the doctor's duty to the plaintiff in the tort of negligence.  That is the only reference I can find in the statement of claim to "fiduciary duty" and that has led the plaintiff to submit that her case is governed by equity and that there was no statute of limitations that governs her case.

25. Paragraph 94 is long but is headed, "Failure to inform and advise and warn 2006, 2007 and 2008" and clearly relates to an action in negligence or breach of contract. According to paragraph 94.1.6 the prescription to her of Epilim led to a "secondary injury." Towards the foot at page 13 of the statement of claim is another heading, "Third injury, failure to inform, advise and warn Aropax, section 5P Civil Liability Act 2002." Again that appears to be a reference to the tort of negligence. The particulars under that are again all referable to negligence. On page 15 is another heading, "Failure to inform and advise and warn 2009‑2013, third injury" and thereunder allegations concerning the prescription by the defendant to the plaintiff of the drugs known as Pristiq and Cymbalta. At the top of page 17, there is another heading "Fourth injury, Seroquel 2009 to 2014." Seroquel is a proprietary name for the drug Quetiapine. Again the particulars given thereunder amount to allegations in the tort of negligence or of breach of contract.

26. On page 18 there is another heading which includes the matter, "Fifth injury" but relate to the failure to diagnose and treat post‑traumatic stress disorder, (PTSD).  Again the allegations are all breach of contract or negligence. On paragraph 21 there is another heading, "Sixth injury" which commences thus:

"The defendant carelessly failed to diagnose and treat the severe debilitating pain reported by the plaintiff on 10 September and excruciating headaches...”

27. On page 22 of the statement of claim, there is another heading concerning a, "Seventh injury" and the allegation is of a failure to prevent further injury of a psychiatric nature.  It commences thus:

"The defendant exacerbated the post‑traumatic stress of the false imprisonment of a brutally beaten child and secluded, detained and over sedated her over a four‑year period that the defendant's conduct was so inexcusably bad as that term is to be understood by the Court that he should have foreseen she would acquire a major depressive disorder and chronic post‑traumatic stress as a result of moving into his home at Kookaburra Court in April 2009 and suffering her private psychiatric history broadcast to Alison Morrell and six other patients employed at the house."

That there appears to be an allegation that the defendant's conduct towards the plaintiff was improper or unprofessional in that he permitted her to live in a residence that he owned at Kookaburra Court at, according to the plaintiff, Bundall or, according to the defendant, at the Isle of Sorrento.  Again, the allegation is, in essence, one of breach of a duty of care owed by the plaintiff to the defendant either at common law or under a contract.

28. The defendant filed a defence to the amended statement of claim on 31 October 2017.  The 22nd plea in the defence is this:

"In further answer to the whole of the further amended statement of claim, the defendant says that the plaintiff's claim is statute barred by operation of the Limitation of Actions Act 1974 [Queensland]."

Limitation provision

29. Section 11(1) of the Limitation of Actions Act 1974 of the State of Queensland is this:

"Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose.”

Where did the cause of action arise?

30. The first matter to be considered is whether the various causes of action pleaded by the plaintiff arose in Queensland.  The defendant, as I have pointed out, practised at all material time at The Evandale Practice in Bundall Road, Bundall on the Gold Coast.  That is where his professional consulting rooms were.  One of the allegations made by the plaintiff is that she moved into one of his residential properties at Kookaburra Court, Bundall and that there was interaction there between the plaintiff and the defendant.  That obviously occurred in Queensland.  The plaintiff told me that after she left Kookaburra Court, she moved into another property owned by the defendant at 5 Reef Court, Mermaid Beach, which is also in Queensland. The plaintiff lived there for six months according to her evidence and then moved back to live in the Northern Rivers area of New South Wales.  As I understand it, the plaintiff has lived in Pottsville on the Tweed Coast between September 2011 and January 2017.  More recently, she has been living in Alstonville which is on the Bruxner Highway between Ballina and Lismore.  The move back to New South Wales appears to have been in the middle of 2010. Antecedent to moving to live in one of the defendant's premises in Queensland, the plaintiff had been living on a rural property in Crooks Valley Road, Crystal Creek. The plaintiff lost her driver's licence for nine months in April 2008 which perhaps may be one of the reasons why she moved to live on the Gold Coast in 2009. 

31. As I understand it, the plaintiff says that she rarely, if ever, consulted with Dr Whittington in person, after her move back to the Northern Rivers area of New South Wales, and that the consultations were conducted by telephone.  However, the doctor was still in Queensland, the contract between the plaintiff and the defendant had been made in Queensland.  He was giving her advice over the telephone from Queensland, which she was free to accept or reject.  He was still providing his professional services from Queensland, and those professional services continued to be covered by the law of Queensland.  There is no evidence that the defendant ever treated the plaintiff in New South Wales.

32. The plaintiff may have filled scripts in New South Wales.  The plaintiff may physically have been in New South Wales when she talked to the doctor and gave him a history, but when the doctor sent scripts out, either manually or electronically, he was sending them from Queensland into New South Wales to be filled by or on behalf of the plaintiff.  This treatment appears to be wholly within Queensland.

33. At one stage, Dr Whittington telephoned the NSW Ambulance Service which caused an ambulance to take the plaintiff to the Tweed Heads Hospital.  The plaintiff's address shown on the label that has been affixed to the Mental Health Assessment Note, exhibit AA, is 4 Nolans Road, Stokers Siding, which is in the Tweed Valley, as I understand it.  Exhibit AA was made by a psychologist at 9.30am on 11 October 2011.  It records that the plaintiff was brought in by ambulance, threatening suicide.  There was some level of intoxication, which was thought to be less than 0.08, but the plaintiff was not manic.  The history recorded is this:

"Five days increased consumption of alcohol after increased stress with her job as a solicitor.  Increased pressure of running a business with husband.  History of alcohol abuse and abstinence since 1989.  Started again three weeks ago.  Was phoning psychiatrist Dr Whittington all day.  Dr Whittington called ambulance.  At review Kerri denied suicidal ideation but described a very serious attempt 30 years ago ‑ significant scar to left forearm.  Six inpatient stays.  Up to 35 years old, nil in patient stays for the last 25 years.  Inpatient stays plus bipolar manic phase fuelled drinking behaviour.  Illness managed by Dr Mark Whittington."

Clearly the plaintiff was being treated for symptoms precipitated by alcohol ingestion at that time, and she was taken to hospital because she was threatening suicide, which is why Dr Whittington appears to have telephoned for an ambulance to take her to hospital.  However what the doctor did, he did in Queensland.

34. Insofar as the plaintiff relies upon a contract, that contract between doctor and patient was entered into in Queensland.  Insofar as the plaintiff relies on the tort of negligence, the relevant actions were performed by the defendant in Queensland.  In my view, this case is governed by the law of Queensland.

35. The plaintiff commenced these proceedings, as I said at the outset of these reasons on 17 August 2016.  For reasons I shall return to later, the plaintiff has not sought at any time to extend the limitation period.  Therefore, the proceedings are statute barred for anything that occurred on or before 17 August 2013.  The plaintiff is unable to identify any treatment of her by the defendant after 17 August 2013.  All that she has proved is that after 17 August 2013, she filled scripts for medication prescribed to her by Dr Whittington on 21 March 2013, and 28 March 2013, when she was under his care.  However, when she filled those scripts, she was no longer under his care, but under the care of either her general practitioner or Dr Richard Williams, a specialist psychiatrist. The mere filling of the script after the plaintiff had discharged herself from the defendant's care cannot be any negligence attributable to the defendant, because the defendant wrote those scripts when the plaintiff was under his care.  Especially is this so in this case in which the plaintiff, on her own admission, frequently failed to comply with the drug regime prescribed to her by the defendant, and other medical practitioners. The relevant action which founds the cause of action is the provision of the script back in March 2013, not the plaintiff's filling it subsequently after the expiration of the limitation period.  The causes of action therefore are, as pleaded by the plaintiff, wholly statute barred.

Plaintiff failed to seek an extension

36. This defence, as I said, was pleaded in the defence to the amended statement of claim, and as I understand it, has always been pleaded.  The plaintiff could have sought to extend the limitation provision, but has not done so.  There is a mechanism referred to by the defendant, and also a mechanism referred to by the plaintiff. 

37. The plaintiff referred to s 29 of the Limitations of Actions Act 1974.  That provides for an extension in cases of "disability."  Section 29(1) is in these terms:

"If on the date on which a right of action accrued whether before or after the commencement of this Act for which a period of limitation is prescribed by this Act the person to whom or for whose benefit it accrued was under a disability, the action may be brought at any time before the expiration of 6 years from the date on which the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired."

The plaintiff said that she was under a disability, and therefore this provision applied to her.  However, s 5(2) of the same Act says this:

"For the purposes of this Act, a person shall be under a disability while the person is an infant or of unsound mind."

The plaintiff also referred to s 5 subs (3), which is in these terms:

“(3) For the purposes of subsection (2), but without prejudice to the generality thereof, a person shall be presumed conclusively to be of unsound mind—

(a) while the person is an involuntary patient under the Mental Health Act 2016; or

(b) while the person is a forensic disability client under the Forensic Disability Act 2011; or

(c) while the person is detained in an authorised mental health service under an order of the court or in safe custody under an order given by the Governor in the name of Her Majesty, under section 647 of the Criminal Code."

The plaintiff has not established that she was ever not of sound mind.  Furthermore, she made no application to seek to establish that she was ever of unsound mind.  The plaintiff referred to her staying at one of the defendant's residential premises in Queensland as being some form of "imprisonment" but clearly the plaintiff has not established any of the matters referred to in s 5(3) of the statute.  There was no evidence that she was ever an involuntary patient under the Queensland Act.  There is no evidence that she was ever a forensic disability client under the Forensic Disability Act 2011 of the State of Queensland, nor has the plaintiff sought to tender any order of any court placing her in custody, nor has she tendered an order made by the Governor of the State of Queensland under the Criminal Code of that State.

38. If the plaintiff wished to rely on s 29 it was incumbent upon her to move the Court to seek an order extending the limitation period. She has not done so.  She has led no evidence in the nine days the matter has been before this Court to establish that she was ever of unsound mind.

39. The defendant referred me to s 31 of the Limitation of Actions Act 1974, of which provides this:

"(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person."

The provisions of s 31(1) clearly tie in and marry with the provisions of s 11(i). Section 31 continues thus:

"(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

(3) This section applies to an action whether or not the period of limitation for the action has expired—

(a) before the commencement of this Act; or

(b) before an application is made under this section in respect of the right of action."

However, the plaintiff made no application to this Court under s 31 to extend the limitation period for any such purpose. In my view the case is wholly statute barred and therefore there must be a verdict and judgment for the defendant.

Other matters

40. I regret that it has been necessary to deal with this defence to the substantive proceedings but I must point out that the substantive proceedings were long and complex.  There is a mountain of evidence before me, a lot of which would require me to go through many arguments and many questions which have arisen.  The plaintiff's essential complaint is that the drugs prescribed by the defendant to her interfered with her health rather than improved it, caused injury to her, made her condition worse for at least a closed period of time and resulted in not only pain and suffering but economic and financial loss as well as the losses generally compensated for by general damages, that is loss of the enjoyment and amenity of life.

41. It is necessary to make a few observations.  The defendant did treat the plaintiff with a large number of drugs and sometimes prescribed what could be shortly described as a "cocktail of drugs" which may have caused some problems for the plaintiff.  However, the plaintiff had a large number of problems in her life.  She was seriously physically assaulted at the age of 14 on a visit to Sydney and told me of having facial injuries which required the insertion of 100 stitches into her face and required her to take three months off school and initially to be locked away in a dark room for three weeks.  That is the reference to the childhood stress which I understand the plaintiff to say was the root cause of her PTSD.

42. The plaintiff has suffered from BAD all of her life and the evidence before me tells me that treatment of that condition can be interfered with substantially by ingestion of alcohol as well as non‑prescribed drugs, but there is not a scintilla of evidence the plaintiff took any illicit drug.  It was denied by the plaintiff and I accept that to be the case.  However, the plaintiff admitted to being prone to fail to comply with the drug regime that was prescribed to her by the defendant and, indeed, admitted to failing to comply generally with advice given to her by many medical practitioners about her taking prescribed medication.  The plaintiff also admitted that she might choose what to take and when to take drugs, making herself the author of her own misfortune.  The plaintiff also admitted to taking medication and alcohol and of course that creates its own difficulties.

43. To go into the many issues raised in this case would require days and days of reading.  However, this point should be made.  The only expert evidence relied upon by the plaintiff is that of Dr Gallogly in his report of 23 March 2017.  The doctor commences his opinion with this observation:

"As I have not had an opportunity to speak to Dr Whittington, nor review the clinical notes he took in relation to Ms Symons, I would not consider my opinion of this matter a formal second opinion of Dr Whittington's work."

Thereafter, the doctor makes, on a large number of occasions, the point that he did not know what Dr Whittington had done, that he had not been provided with his notes and therefore that his opinions are wholly qualified. 

44. A large number of statements made by the doctor do not support the plaintiff's allegations in the statement of claim.  For example, paragraph 15.5 of Dr Gallogly's report is this:

"It is not common practice in Australia that a Consultant Psychiatrist would formally obtain written consent from a patient before initiating psychotropic medication."

The next paragraph is this:

"There is implied consent when a Consultant Psychiatrist prescribes psychotropic medication and the member of the public, or patient, takes said prescription to a pharmacy, fills it, and adheres to the prescribed treatment."

In paragraph 15.10, Dr Gallogly said this:

"With respect to the entire array of potential side effects of any particular medication, it is not generally considered obligatory that a prescribing doctor goes through the entire list of side effects, other than those that could cause immediate harm to the patient."

45. One of the questions asked of the doctor by the plaintiff was this:

"Should Ms Symons have been provided with sufficient information upon which to make a decision when given the sample of Zyprexa and prescription of Epilim."

The doctor wrote in response to that, this:

"It is good medical practice to allow a patient to ask any questions they have about a particular medication before undertaking that course of treatment.  The concept of patient‑centred care certainly includes encouraging patients to ask questions and provide input into their decision, as well as checking that they understand the implications of the medications.  This is standard practice.  I am not suggesting that Dr Whittington did not undertake this course of action, as I have not spoken to him or reviewed his notes."

46. Doctor Gallogly was asked questions about the complications and side effects of drugs prescribed to her when she went to Europe and Dubai.  I know she went to Dubai on one occasion, she has been to Europe on a number of occasions but this may refer to the discrete occasion that she went to both places in February 2006.  The doctor wrote this:

"Without being aware of the symptoms that Ms Symons reported at that time and being fully aware of other medications that Ms Symons was on, I cannot say definitely that the prescription of Zyprexa and Epilim adversely affected Ms Symons' enjoyment overseas in Europe and Dubai."

47. When asked whether Epilim was a cause of severe tremors and hair loss. The Doctor said that such was possible but it was Dr Gallogly's experience that most doctors prescribing Epilim for their patients would not, at the outset, refer to hair loss as a potential side effect.  That was because it is not a commonly encountered side effect.  The side effects usually advised about are weight gain and the impact on pregnancy.  He also went on to say that he would not expect Epilim to cause, "severe tremors."  Dr Whittington's notes indicate that when the plaintiff made the complaint about hair loss and tremors on 17 January 2017, the doctor took the plaintiff off Epilim and prescribed Carbamazepine whose proprietary name is Tegretol in lieu thereof. In paragraph 15.23 of his report, Dr Gallogly says this:

"Most psychiatrists will not go through the entire array of potential adverse effects of a particular medication as that will not be practicable.  However, it is good medical practice to effectively deal with adverse effects if and when they come up."

48. In paragraph 15.26 Dr Gallogly adverts to the risk of Serotonin Syndrome as a risk involved with the prescription of psychotropic medication.  However, I do not know what the symptoms of a Serotonin Syndrome are, nor is there any evidence that at any time the plaintiff had that condition. 

49. In paragraph 15.34 the doctor said this:

"...it is sometimes necessary that a patient with Bipolar Disorder be prescribed an antidepressant such as Pristiq.  Without seeing Dr Whittington's notes and rationale for prescribing these medications, I cannot comment on whether it was appropriate or not appropriate to do so."

Dr Gallogly was then asked to answer the question whether increased anxiety, depression, agitation and suicidal thoughts were adverse effects of Pristiq.  He does not say that they were.  What he does say is that those were symptoms indicative of a relapse of a recurrent depressive disorder.  He also points out that they could be an indication that the patient was not adhering to his or her treatment and that is a problem for the plaintiff because she was often non‑compliant with her medication regime. The doctor also said that those symptoms could also be an indication that the patient was using other substances such as alcohol.  The plaintiff was using alcohol from time to time.  The doctor also states that such symptoms could be an indication that treatment options were not working but that may be because the course of the treatment was not being taken correctly.

50. The doctor also comments on the prescription of Cymbalta.  The chemical name for that proprietary drug is Duloxetine.  The doctor points out that it was commonly prescribed by pain specialists as part of chronic pain management.  I should point out that the plaintiff was complaining constantly of severe physical pain but told Dr Whittington, according to his notes of 21 September 2012 that she was able to differentiate between her physical problems and her emotional problems.  The doctor was trying to treat the plaintiff for a severe pain which it seems he believed was caused by the stiff person syndrome. Hence, he prescribed other painkilling medication such as Panadeine and Panadeine Forte and, on occasions, OxyContin, an opioid based medication.  The plaintiff said that she never took any OxyContin but the doctor's notes are quite clear why he was prescribing it and when.  They also indicate, for example, when it was first prescribed on 6 March 2009, the plaintiff told him that her pain level was ten out of ten. 

51. Two things that were said by Dr Gallogly are these:

"It is considered a transgression of professional boundaries for a consultant psychiatrist to establish a relationship with a patient such as that outlined by Ms Symons.  Specifically, a consultant psychiatrist would be expected not to engage a patient as their legal advisor.  This is not good medical practice.  A consultant psychiatrist would be expected not to engage a patient as a financial adviser.  This is not good medical practice.  A consultant psychiatrist would be expected not to engage a patient to represent them [sic] in family law matter or tax audits.  This is not good medical practice."

I should point out that the plaintiff, during the entire period that she was under the treatment of Dr Whittington, was not permitted to practise law because she had no practising certificate.  She also has no formal qualifications as a financial adviser.  I accept that the plaintiff assisted the doctor with his legal and financial matters and it appears that there was inappropriate behaviour by the doctor professionally towards Ms Symons who was his patient.  However, all of that behaviour was prior to 17 August 2013, as the relationship between the plaintiff and the defendant had been ended by the plaintiff prior to that time as is made abundantly clear by exhibit FFF, the email from the defendant to the plaintiff of 10 August 2013 which at first discusses the matter of pearls.

52. The next matter I should advert to is this; the plaintiff's claim for special damages has not been made out.  The plaintiff failed to establish any economic loss whatever by any traditional means or usual means and the attempts that she made to do so raised only peripheral issues which were not directly relevant to her claim.  Hence, the plaintiff's claim for damages must have been limited to general damages for pain and suffering and loss of amenity of life.

53. The final thing I should say concerns the reliability of the plaintiff's evidence.  I hasten to point out that there are a number of reasons why a person can be an unreliable witness.  It does not necessarily reflect on that person's honesty.  The evidence before me from the plaintiff is largely unreliable.  I say that because it is patently clear that a large amount of the evidence was reconstruction by the plaintiff of what must have been her then state of mind at some earlier time in her life.  It is clear that the plaintiff said things based on what she had read in doctors' notes or in medical reports or the like but such recollections are obvious reconstructions. 

54. Furthermore, there is a large amount of hyperbole in the evidence. A simple illustration of that is this:  the plaintiff said that she spoke to the defendant daily on the telephone for initially six years, but that was then reduced to five years.  She then reduced the daily calls, to week-daily calls, but week-daily calls over a period of five years would mean at least 1,000 calls.  That number of calls was then reduced to 200 calls over a five year period.  Initially the plaintiff said that the defendant could call her ten times a day, between each patient, but it became clear that that was not the generality, but rather that that might occur from time to time, and there might only be one call a day, or a few calls a day, depending on what the doctor probably perceived to be the state of her health.

55. The plaintiff was at times very angry in her evidence, and demonstrations of her underlying, ongoing BAD were evident in her evidence, and that clearly affected her presentation from time to time, which made her evidence difficult to gauge as to its reliability and accuracy.  I make those observations lest the matter go further.

Authority

56. Finally, I should state that the plaintiff referred to Gerace v Auzhair Supplier Pty Ltd [2014] NSWCA 181, as authority for the proposition that insofar as the claim was equitable, being based on a breach of fiduciary duty, the statute of limitations did not apply. With the utmost respect to the plaintiff, that is a misreading of the decision. The leading judgment was given by Meagher JA with whom Beasley P and Emmett JA concurred. At [70] Meagher said this:

"The authorities referred to above, and in particular R v McNeil, show that in purely equitable proceedings, where there is a corresponding remedy at law, in respect of the same matter, and that remedy is the subject of a statutory bar, equity will apply to the bar by analogy unless there exists a ground which justifies its not doing so because reliance by the defendant on the statute would in the circumstances be unconscionable.  They do not support the proposition that equity retains any broader discretion whether to apply the bar.  The description of such a ground, or the conduct giving rise to or constituting it, as unconscionable or unconscientious leaves to be identified the principles according to which equity justifies that conclusion:  Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 at [45] (Gleeson CJ) and Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA18; 214 CLR 51 at [41]‑[42] (Gummow and Hayne JJ)."

It is also clear that, in that case, it was not argued that concealed fraud or some other equitable ground, made it unconscionable for the appellants to rely on the statutory bar being invoked.  That can be found at [78] of his Honour's reasons for judgment.  The authority does not suggest that a statute of limitations does not apply in this case merely because the plaintiff pleaded at one stage that the defendant owed her a fiduciary duty, a fiduciary duty which, of course, arises as a result of both the contract pleaded by the plaintiff and the principles underlying the tort of negligence, again the tort relied upon by the plaintiff in the statement of claim.

Orders

57. For those reasons, I give verdict and judgment for the defendant against the plaintiff.

Do you seek costs?

HUTCHINGS: I do, yes.

HIS HONOUR: You can't resist a costs order, Ms Symons.  Costs follow the event.  Is there anything you want to say about costs?

PLAINTIFF: No, your Honour.

HIS HONOUR: I order that the plaintiff pay the defendant's costs.

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Decision last updated: 30 August 2018