Turner v Hunter - [2023] WADC 93

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   TURNER -v- HUNTER [2023] WADC 93
CORAM:   VERNON DCJ
HEARD:   9-10 FEBRUARY & 24 APRIL 2023
DELIVERED          :   18 AUGUST 2023
FILE NO/S:   CIV 2772 of 2019
BETWEEN:   STEVEN JAMES TURNER
Plaintiff
AND
LINDA JANE HUNTER
Defendant

Catchwords:

Preliminary issue - Whether the defendant consented to the plaintiff's medical treatment - Whether any tortious liability arises from consent to medical treatment - Strike out application - Failure to disclose a cause of action

Legislation:

Civil Liability Act 2005 (WA), s 5B(1), s 5B(2), s 5S(1)
Guardianship and Administration Act 1990 (WA), s 110ZD, s 110ZC, s 110ZC(1)
Rules of the Supreme Court 1971 (WA), O 20 r 19(1)(a)

Result:

Preliminary issue determined
Application to strike out allowed
Action dismissed

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Mr D Kotze

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Baldivis Law and Mediation

Case(s) referred to in decision(s):

Built Environs WA Pty Ltd v Perth Airport [No 4] [2020] WASC 382
Clavel v Savage [2013] NSWSC 775
Kimberley Downs Pty Ltd v The State of Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
Magill v Magill (2006) 226 CLR 551
Vantage Holdings Group Pty Ltd v Donnelly (No 4) [2019] WASC 398
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214
Wyong Shire Council v Shirt (1980) 146 CLR 40

VERNON DCJ:

This matter came before me for determination of four preliminary issues concerning whether the defendant consented to the plaintiff receiving medical treatment at Royal Perth Hospital (RPH) after a motorcycle accident and whether any such consent gave rise to a tortious liability to the plaintiff by the defendant. These issues were listed for hearing on the basis that their determination had the potential to resolve the plaintiff's claim in its entirety.
The plaintiff is self-represented. The statement of claim dated 21 July 2021 lacks the clarity one might expect from a qualified legal practitioner and the basis of the plaintiff's claim against the defendant is difficult to discern from its contents. However, it appeared to me to be possible that, by par 10 of the statement of claim, the plaintiff was attempting to raise an issue beyond the scope of the preliminary issues.
Given the uncertainty of the claim sought to be made I ordered the plaintiff provide particulars of par 10. On 10 April 2023 the plaintiff made a second attempt to provide those particulars, outside the additional time that had been allowed for him to do so. In the meantime, on 23 March 2023, the defendant applied to strike out par 10. That application was heard on 24 April 2023.
In summary, I have largely determined against the plaintiff on the preliminary issues. I have also determined to strike out par 10 of the statement of claim. My reasons are set out below.

The preliminary issues

The preliminary issues are expressed as follows:
(a)Whether the defendant consented to the plaintiff receiving any medical treatment by staff from the East Metropolitan Health Service (EMHS) in relation to the plaintiff's admission to RPH on 7 July 2017;
(b)If the defendant did provide consent as set out in par (a), whether or not that consent was provided in circumstances giving rise to any tortious liability by the defendant to the plaintiff;
(c)Whether the defendant consented to the plaintiff receiving any other medical treatment by staff, including by allied health staff, from the EMHS during the period 7 July 2017 to 31 December 2017; and
(d)If the defendant did provide consent as set out in par (c), whether or not that consent was provided in circumstances giving rise to any tortious liability by the defendant to the plaintiff.
The history of the pleading of the plaintiff's claim is as follows:
(a)The writ was issued on 23 July 2019;
(b)A statement of claim was filed on 23 August 2019;
(c)That statement of claim was struck out by order of Registrar Kingsley on 14 September 2021 and the plaintiff was given leave to file and serve a further statement of claim by 30 October 2021;
(d)On 19 October 2021 the plaintiff filed a statement of claim dated 21 July 2021 (the statement of claim).
Relevantly to the preliminary issues the plaintiff's case appears to be, in effect, that:
(a)On 7 July 2017 and at all other times the plaintiff had full legal capacity to make medical treatment decisions: par 3 of the statement of claim;
(b)On 7 July 2017 and subsequently the defendant made treatment decisions for the plaintiff without the legal authority to do so, including by consenting to the plaintiff undergoing surgical procedures: pars 4, 5 and 8 of the statement of claim;
(c)In addition to the surgical procedures, the treatment the defendant consented to comprised of:
1.General anaesthesia;
2.Allied health intervention, social work;
3.Allied health intervention, physiotherapy;
4.Allied health intervention, occupational therapy;
5.Allied health intervention, dietetics;
6.Allied health intervention, psychology;
7.Machine vision;
8.HIV screening:
par 11 of the statement of claim; and
(d)The plaintiff was not given the opportunity to accept or decline the treatment and was not notified of the benefits or risks of the treatment: par 5 of the statement of claim; and
(e)The defendant owed the plaintiff the right to make his own treatment decisions and refused to share information or include the plaintiff in the treatment decisions: pars 6, 7 and 8 of the statement of claim.
The plaintiff's primary claim appears to be 'for all information and things related to the compensable admission for treatment and services': par 8 of the statement of claim. However, the plaintiff also asks for damages to be assessed 'once the information is recovered': pars 8 and 9 of the statement of claim.
By a defence dated 26 November 2021 (the defence) and, relevantly to the preliminary issues, the defendant pleads, in summary, that:
(a)The defendant went to RPH on 7 July 2017 after the plaintiff had been in a motorcycle accident: pars 3.1, 3.2 and 3.3 of the defence;
(b)The defendant was informed by medical staff at RPH that the plaintiff did not have necessary capacity to consent to necessary treatment: par 3.3 of the defence;
(c)On 7 July 2017:
1.RPH staff asked the defendant to consent to necessary treatment for the injuries the plaintiff had suffered in the accident pursuant to s 110ZD of the Guardianship and Administration Act 1990 (WA) (GAA) because the plaintiff had no spouse or adult children;
2.The defendant consented to the plaintiff being admitted to RPH and receiving medical treatment for the injuries he had suffered in the accident: pars 3.5, 5, 6 and 13 of the defence;
3.In particular, the defendant consented to the plaintiff receiving anaesthesia for treatment of the plaintiff's injuries including fractures: pars 3.5, 6 and 14 of the defence;
4.The defendant had authority to consent to the plaintiff's treatment on 7 July 2021 by reason of s 110 ZD of the GAA: pars 3.5, 5, 7 and 9 of the defence; and
5.The defendant did not consent to the plaintiff's treatment at RPH on any day other than 7 July 2017: pars 3.5, 6, 15 and 16 of the defence.
In summary, the defence submits that the defendant acted in the plaintiff's best interests on 7 July 2017 because she had been told the plaintiff did not have capacity to consent to treatment and accordingly the provision of that consent does not give rise to any tortious liability. The defence submits that when the plaintiff regained capacity to make treatment decisions he did so. In particular, the defence points to the defendant signing a consent to surgery on his leg on 8 July 2017.

Issues falling outside the scope of the preliminary issues

As I understand his submissions, the plaintiff claims that during his admission at RPH between 7 and 15 July 2017 medical staff implanted an appliance (or appliances) used for 'internal stimulii' into his ear. The plaintiff claims that the defendant was involved in the decision to implant the appliance and paid for that appliance. The plaintiff claims that the defendant controls the appliance and, essentially, uses it to torture him. Amongst other things, the plaintiff claims the appliance causes him to hear things he does not want to hear and which greatly distress him. The plaintiff also claims that the appliance enables the defendant to read his thoughts.
Whilst these claims are not referred to in the current version of the statement of claim they underpin the plaintiff's claim for damages against the defendant. The plaintiff made a number of submissions about evidence he says support these claims. I accept that the plaintiff believes these claims to be true.
Whilst these claims may be said to be inherently improbable, and none of the plaintiff's submissions were in any way persuasive, determination of these matters falls outside the scope of the preliminary issues. The plaintiff was not permitted to adduce any evidence in support of these claims and I make no determination in respect of them.
However, the fact that the plaintiff's claim for damages is grounded in his claim that the appliance was implanted during a procedure at RPH after his motorcycle accident is relevant to my determination of the preliminary issues as I shall explain.

The evidence

The witnesses

The plaintiff and the defendant both led evidence at the hearing on 9 and 10 February 2023 in relation to the preliminary issues.
The plaintiff gave evidence orally at the hearing and tendered a number of documents by consent including the medical records of both RPH and Joondalup Health Campus (JHC), which are exhibits 3 and 4 respectively.
In addition to oral evidence at the hearing, the defendant gave evidence‑in-chief by way of an affidavit filed on 30 January 2023 pursuant to the orders of Gething DCJ on 9 December 2022. That affidavit is exhibit 6.
I excluded the material referred to in pars 18 to 29 and annexures LJH2 to LJH5 of exhibit 6 on the basis that this material was irrelevant to my consideration of the preliminary issues. Annexure LJH1 was an illegible copy of a document otherwise in evidence as exhibit 1.
The defendant also called Anne Marie Presho, the Director in the Office of the Chief Executive of EMHS. Ms Presho's role includes overseeing the management of record keeping within the EMHS. In addition to her oral evidence, Ms Presho gave evidence-in-chief by way of an affidavit filed on 1 February 2023, again pursuant to the orders made on 9 December 2022. This affidavit is exhibit 9.
To the extent that exhibit 9 refers to the contents of medical records in pars 10(a), 10(b), 10(g), 10(h) and 10(i) I have had regard to the documents themselves, which are included in exhibits 3 and 4.

Uncontested factual findings

There is no dispute about the matters set out in [22] to [31] below and I make findings of fact accordingly.
The defendant is the plaintiff's biological mother.
The EMHS provides health services including medical and allied health services at RPH, which is not a legal entity.
On 6 July 2017 the plaintiff was injured when the motorcycle he was riding was hit by a car (the accident). His injuries included a contained laceration of his liver and a closed break of his left tibia and fibula.
After the accident the plaintiff was taken by ambulance to JHC.
The plaintiff was then transferred from JHC to RPH arriving just before 1 am on 7 July 2017. The plaintiff was admitted to the State Trauma Unit at RPH at 4.30 am on 7 July 2017.
A friend of the plaintiff, Michael Fletcher, told the defendant that the plaintiff was in hospital and the defendant subsequently attended RPH.
At an unknown time on 7 July 2017 at RPH the defendant signed a form called a 'compensable patient admission form' (the CPA form) in the plaintiff's name. The CPA form, which is exhibit 1, stated:
I am a compensable patient.
I understand that hospital and medical fees will be raised and will be paid by the appropriate third party or directly by me upon receipt of compensation or damages. I realise that if my claim for compensation is unsuccessful, I personally will not be held responsible for these charges. However, charges for appliances and boarder accommodation will remain my responsibility to settle regardless of whether the claim is successful or not.
In the event of any claim for compensation being unsuccessful I wish to be classified as: HO.
On 8 July 2017 the plaintiff signed a form entitled 'Operation check and consent form' consenting to surgery to treat his left tibia and fibula fracture that being the date the surgery was initially planned to take place. This form is exhibit 10.
The plaintiff underwent surgery at RPH on 10 July 2017.
The plaintiff was discharged from RPH on 15 July 2017. He returned on 21 September 2017 when he received a follow up ultrasound of his abdomen. Further outpatient appointments were scheduled for 6 and 20 October 2017. However, the plaintiff did not attend.

Hospital records

The JHC medical records (exhibit 4) record an observation that the plaintiff was under the influence of methylamphetamine when he arrived, and that he underwent X-ray and CT scans, his leg was manipulated under sedation and a splint was applied.
The RPH medical records (exhibit 3) record that:
(a)nursing staff observed at 5.30 am on 7 July 2017 that:
1.the plaintiff was agitated on arrival at the ward and was shaking with tremors, and he was given oxynorm for pain and a sedative, diazepam;
2.the plaintiff stated he 'took meth in the am yesterday prior to the accident'; and
3.the defendant visited the plaintiff on the ward.
(b)nursing staff observed at 2.30 pm on 7 July 2017 that:
1.the plaintiff had become increasingly paranoid and agitated, was crying and very scared and thought staff were trying to kill him so refused to take oral and IV medication;
2.the trauma team was paged and an urgent psychiatric review was sought; and
3.hospital security was present and had physically restrained the plaintiff.
(c)The plaintiff underwent surgery on 10 July 2017 where a tibial nail was inserted to stabilise the left tibial shaft fracture; and
(d)On 12 July 2017, during a meeting between a social worker and the plaintiff:
1.the defendant attended the plaintiff's room and the plaintiff 'became extremely verbally aggressive towards the defendant and agitated ^+++';
2.the defendant removed herself from the bedside; and
3.the plaintiff reported having used 'meth' a couple of days prior to the incident.

The plaintiff

The plaintiff disputed that he had used methylamphetamine before the accident, although he said he had used methylamphetamine in the past and also after the accident. The plaintiff said that at the time of the accident he was not under the influence of illicit drugs. He said that he was on parole and was subject to regular urinalysis. He said the police had breath tested him, although he accepted that this test was likely to be for the presence of alcohol and not illicit drugs. The plaintiff said, 'I'm not saying that I've never used drugs, I have used drugs since, like, the accident. But I was not in a position there to be using drugs', referring to his having been on parole.
It appeared that the plaintiff recalled being taken from JHC to RPH by ambulance. However, his evidence was that at some point he fell asleep, either because he was sedated or from exhaustion, he was unsure which. In cross-examination the plaintiff said he was sedated at RPH and not at JHC.
The plaintiff described his next memory being at RPH. He described this as 'like consultations. Sort of consultation, but not knowing who the people or what they're doing. Kicking my mum out of the hospital' [sic]. The plaintiff said that he did not see the defendant until at least a day after his arrival at RPH. He said that he 'kicked her out of the hospital' because she was saying 'stuff'. It appeared from his later evidence that he had asked the defendant to leave his room on an occasion recorded in the RPH documents as having occurred on 12 July 2017. It is not necessary to detail what 'stuff' the plaintiff referred, other than to say the defendant was denying allegations made by the plaintiff that are unrelated to the current proceedings.
The plaintiff said his memory was 'intermittent' after that because he was sedated most of the admission. He said, 'I can remember back and being sedated and sedated and sedated and that's why I can't remember these procedures'.
The plaintiff did, however, recall signing the form consenting to surgery on his leg on 8 July 2017.
The plaintiff said at the time of the accident he would not have nominated the defendant as his next of kin. He said he would have nominated his best friend, Mr Fletcher, as his next of kin as he had done in the past. The plaintiff said that Mr Fletcher was the first person he rang from JHC after the accident. The defendant later said that, as well as Mr Fletcher, the woman he had been in a relationship with at the time 'probably would have been the person at the time to make the decision if anyone was going to do so'.
The plaintiff made a number of allegations about the defendant's treatment of him during his childhood and about his relationship with the defendant. It is not necessary to repeat those allegations in detail. The upshot of that evidence was that the plaintiff had a very bad relationship with the defendant at the time of the accident and would not have chosen her to make any treatment decisions for him.
The plaintiff accepted that he was living with the defendant in her home at the time of the accident. He said, in effect, that he had nowhere else to live at the time, although he also said he wanted to reconnect with his family. The plaintiff said he was not sure how long he had been living with the defendant before the accident, initially saying it was 'maybe 12 months or 14 months or something. I'm not quite sure. Not even that'. Immediately after that evidence the plaintiff said he had been living with a woman he was in a relationship with and it was only a month before the accident that he had moved in with the defendant.
The plaintiff said that, even though he was living in the defendant's house, he was on bad terms with her. Again, he made a number of allegations about the defendant's conduct that it is not necessary for me to detail.

The defendant

The defendant said that she received a telephone call on 7 July 2017 from Mr Fletcher who told her that the plaintiff had been in a motorcycle accident and was being transferred by ambulance to RPH, and that she immediately went to RPH.
The defendant said that when she arrived at RPH the plaintiff was apparently in a lot of pain. She said that he appeared to her to be extremely paranoid of people in the bed next to him or in the ward.
The defendant said she was told that the plaintiff had a broken leg, a serious liver injury and he needed emergency surgery.
The defendant said that RPH medical staff asked her to sign a form on the plaintiff's behalf. She said that she was told that she was being asked to sign the form because the plaintiff was high on methylamphetamine and the doctors said he lacked the capacity to sign the form himself.
The defendant said that she could not recall the form she signed but said that the document was 'pre-filled'. She said that she only signed it at the hospital's request. She said that she did not sign any other forms at RPH.

The defendant identified the signature on the CPA form to be hers.
When asked in cross-examination what she understood the CPA form to mean, the defendant said:
It meant that [the plaintiff] had a motorcycle accident and basically if [he] went for an insurance claim, then he would have to pay the hospital, I assume, for their services, and then whatever was left over from the insurance claim from [his] accident [the plaintiff] would get to keep …
The defendant said that it was her understanding that if the plaintiff did not receive an insurance payment there would be no charge.
The defendant said that she had no understanding what the 'appliances' were that were referred to in the CPA form. She said that she did not pay for any of the services that the plaintiff received at RPH.
The defendant said that she signed the form because she was very concerned about the plaintiff's health and was trying to help the plaintiff. The defendant said that her reasoning was that the plaintiff needed medical treatment and was unable to give his consent. She said she was worried that if he did not have surgery, or whatever needed to be done, he would be seriously ill or die.
The defendant said that she believed that, by signing the form, the plaintiff would have his leg fixed and that the laceration he had to his liver would also be fixed. She said she signed the form so that the plaintiff would be given the treatment he needed. She said she believed the form was for the plaintiff to have the surgery.
In cross-examination the defendant said, 'As far as I am aware … I signed a piece of paper that was brought to me by medical staff because my son needed medical treatment and I didn't want him to die'. She said that she did not give consent to anything except for the plaintiff to have surgery after his accident.
The defendant denied that she had ever consented to the plaintiff being implanted with a communication device.
The defendant said that she visited the plaintiff at RPH almost every day to bring him clothes and to try to support him, despite him being quite abusive towards her. She said that he was her son and she believed him to be in a terrible state at the time.
When it was put to her in cross-examination in effect that they did not have a close personal relationship, the defendant said that the plaintiff was her son, although she said they had a tumultuous relationship, which she believed was because of the effects of the plaintiff's drug use. She said that their relationship had been up and down since the plaintiff was a teenager.
The defendant said that after the plaintiff was discharged from RPH he came and lived in her house again. She said, 'he needed somewhere to be and so he could recuperate from his injuries and so he could build relationships with his family members or rebuild relationships with his family members'. In cross-examination she agreed that, after the plaintiff was discharged, she had gone on a planned holiday to Bali, but said that this was a little while after the plaintiff was discharged and he was mobile around the house at that time.
In cross-examination the defendant said that before she signed the CPA form she told a doctor, she could not recall which one, that the plaintiff was a user of methylamphetamine. She said, in effect, that she did so because she thought the hospital should know about that if they were going to operate on him or give him medications. She said she was concerned any medication that the hospital might administer could result in an overdose.
The defendant denied, in effect, that she had told the doctors that the plaintiff had mental health issues saying, 'Look I can't remember exactly what I said but I did make them aware that he was a methylamphetamine user'.

Anne Marie Presho

Ms Presho's evidence was to the effect set out in [62] to [72] below.
Staff at public hospitals in Western Australia routinely ask patients to sign a CPA form where a third party may be liable to compensate the patient for their medical expenses: for example, under legislation governing compensation for motor vehicle accidents and worker's compensation, or where the patient is not an Australian resident, or was receiving treatment as a private patient.
The CPA form is a standard form which is automatically generated whenever a decision is made to admit a patient into a public hospital.
In the plaintiff's case, the reference to the account type as 'MV' in the CPA form indicated the plaintiff had been involved in a motor vehicle accident and may be entitled to compensation as a result. The MV code would alert the accounts department to raise appropriate invoices where the Insurance Commission of Western Australia (ICWA) may be liable to compensate the plaintiff for the cost of treatment.
The letters 'HO' in the CPA form stood for 'Hospital'. The reference to 'HO' meant that, if the hospital had incorrectly classified the plaintiff as being entitled to compensation from a third party, the plaintiff would be reclassified as a public patient and no fees or charges would be raised.
Ultimately, the accounts generated in relation to the plaintiff's treatment at RPH were sent to, and paid by, ICWA. The plaintiff would not have been billed if ICWA had not accepted liability for the accounts.
A member of RPH's staff, generally a ward clerk, would seek a patient's consent to the contents of a CPA form. The consent of a patient's next of kin would only be sought if RPH staff thought that the patient did not have capacity to provide consent themselves. The patient would not be asked to sign another CPA form themselves if they regained capacity to consent.
As to how the next of kin would be identified, Ms Presho said the patient would be asked if they had a next of kin contact unless there was one already noted in the hospital's records, in which case the patient would be asked if that was still correct.
Whilst the CPA form said that charges for 'appliances' would remain the patient's responsibility regardless of whether the claim is successful, patients were not in fact charged for 'appliances'.
Ms Presho was unable to explain why the CPA form was worded in that way other than to say it was a standard wording that had been used for many years and covered different categories of compensable patients.
Only one operation is recorded as having been performed on the plaintiff during his admission in July 2017, being for the injury to his leg.
The only operation consent document in existence with respect to the plaintiff's admission to RPH between 7 and 15 July 2017 is the consent form signed by the plaintiff dated 8 July 2017.

Findings of fact

Ms Presho was an independent witness, who was clear and precise in her evidence and candidly admitted those matters she considered to be outside her expertise or her knowledge. I find she was an honest and reliable witness and I accept her evidence in its entirety.
Accordingly, I make findings of fact in accordance with [62] to [69], [71] and [72] above.
My assessment of the plaintiff's evidence is that he now believes the matters he gave evidence about. However, his evidence is contradicted in many respects by the documentary evidence and he contradicted himself in his evidence, referring for example to [41] above. In addition, the plaintiff was, on his own admission, not fully aware of what was going on around him while he was in hospital because he was sedated. This is evidenced by the fact that he did not recall the defendant being at RPH on 7 July 2017, despite her attendance being recorded in the RPH medical records.
The plaintiff's evidence that he did not use methylamphetamine before the accident because he was on parole was particularly unconvincing in light of the contemporaneous RPH and JHC medical records and his admission of drug use on other occasions before and after the accident. I do not accept the plaintiff's evidence that the plaintiff did not tell staff at RPH that he was under the influence of methylamphetamine at the time of the accident. On the basis of the admissions recorded in the RPH medical records I find it is more likely than not that the plaintiff was under the influence of methylamphetamine at the time of the accident and subsequently at RPH.
Overall, I consider the plaintiff's evidence to be unreliable and do not accept it unless it is consistent with other evidence that I do accept save in the instances I specifically refer to below. That said, much of the plaintiff's evidence was not relevant to the preliminary issues in any event.
Although the defendant appeared considerably frustrated with the plaintiff's action, she candidly admitted some propositions put to her by the plaintiff in cross-examination. For the most part her recollections were consistent with the available documentary evidence. She had some difficulty in her recollection of some of the events noted in the RPH medical records. This is understandable given the events occurred almost six years before she gave her evidence. Overall, I am satisfied that the defendant is an honest witness and generally reliable and I accept her evidence save where her recollection differs from the content of the RPH medical records and Ms Presho's evidence, in which case I prefer that evidence.
Accordingly, I find that:
(a)At the time of the accident, the plaintiff was living at the defendant's home, as the plaintiff accepted. It is not possible to say how long he had been staying there as the defendant was not asked about this However, it was at least a month and more likely than not longer than that;
(b)The defendant attended RPH on 7 July 2017 because she had been told the plaintiff had been in a motorcycle accident and she was concerned about his welfare;
(c)When at RPH the defendant:
1.was told by RPH medical staff that the plaintiff had a broken leg, a serious liver injury and needed emergency surgery under anaesthesia;
2.believed as a result of what she was told that the plaintiff needed the surgery urgently;
3.was asked by a member of staff at RPH to sign the CPA form. On the basis of Ms Presho's evidence it seems likely that this was a ward clerk rather than by medical staff as the defendant believed at that time. However, I do not consider this to be relevant to my determination of the preliminary issues;
4.was told by the person who asked her to sign the CPA form that she was being asked to do so because the plaintiff was high on methylamphetamine and the doctors said that he lacked capacity to sign the form himself.
(d)The defendant signed the CPA form when she was asked to do so by the RPH staff member because the defendant believed, as a result of what she had been told and on her own observations, that the plaintiff was not able to give consent to treatment himself;
(e)The defendant understood the CPA form was intended to allow RPH to claim payment if the plaintiff had a successful insurance claim as a result of his motor vehicle accident;
(f)The defendant believed it was necessary to sign the CPA form in order that the plaintiff receive the treatment that he needed, that is to have surgery to fix his leg and also to fix the laceration to his liver; and
(g)The defendant orally indicated to the RPH staff member that she agreed to the plaintiff being admitted and having surgery at the time she signed the form.
I find on the basis of the defendant's evidence, Ms Presho's evidence and the RPH records that the only document or form the defendant signed during the plaintiff's admission to RPH in 2017 was the CPA form which she signed on 7 July 2017.
I also find on the basis of Ms Presho's evidence and the RPH records that:
(a)the only form by which consent was specifically given to RPH medical staff to perform surgery on the plaintiff was the form signed by the plaintiff on 8 July 2017, a copy of which is exhibit 10;
(b)the only surgical treatment the plaintiff received at RPH was on 10 July 2017, during which his broken leg was repaired;
(c)the plaintiff's treatment at RPH after his discharge on 15 July 2017 was limited to an ultrasound of his abdomen on 21 September 2017. In particular, the plaintiff did not receive any surgical treatment at RPH after his discharge on 15 July 2017; and
(d)the plaintiff did not receive any treatment at RPH after 21 September 2017.
I infer from this evidence that the laceration to the plaintiff's liver did not require surgery despite the defendant's understanding to the contrary.
It was clear from the plaintiff's evidence, which I accept in this respect, that the plaintiff had no concern about the surgery performed on his leg and was satisfied that he received good orthopaedic care.
Whilst the defendant told RPH staff that the plaintiff was a user of methylamphetamine there is no evidence that the RPH staff relied on this in forming a view that the plaintiff was not competent to sign the CPA form himself, or to give consent to treatment. In my view it is more likely than not that in making this assessment the medical staff relied on the matters that are recorded in the RPH medical records of their own observations and their understanding, from information given by the plaintiff, that he was using methylamphetamine before the accident.

Determination of the preliminary issues

Issue 1 - Did the defendant consent to the plaintiff receiving any medical treatment by staff from the EMHS in relation to the plaintiff's admission to RPH on 7 July 2017?

For the reasons set out below the answer to Issue 1 is 'yes'.
In my view, the defendant did not provide consent to the plaintiff receiving any particular medical treatment at RPH by signing the CPA form. By its terms the CPA form apparently concerned the plaintiff's liability for the costs of treatment in certain circumstances. In other words, the CPA form was only concerned with the financial terms of the plaintiff's admission to RPH rather than constituting consent to any particular treatment.
However, on the defendant's own pleaded admission, and in her evidence, the defendant gave consent to the plaintiff receiving some treatment on 7 July 2017. I find that the consent given was limited to the surgery the defendant had been told by RPH medical staff that the plaintiff required, which she understood to be for the repair of his broken leg and his liver.
In particular, there is no evidence that the defendant consented to the plaintiff being implanted with any devices or appliances even to the extent that they may have been necessary for the surgical repair to the plaintiff's leg, and I find the defendant did not do so.
The hospital did provide some treatment to the plaintiff on 7 July 2017. It is not clear to me from the RPH medical records what the precise extent of the treatment given was. However, on the basis of those records I find it included the provision of sedatives and analgesia, and medication for nausea, as well as the insertion of a catheter and a CT scan of the abdomen.
There is no evidence to support a finding that the defendant was asked to consent to any of this specific treatment and I find that she did not give consent. In any event, it is clear from what I have said at [11] above that such treatment does not form any part of the plaintiff's claim for damages.
I find that the treatment provided to the plaintiff on 7 July 2017 did not include surgery and that RPH staff directly sought and obtained the plaintiff's specific consent on 8 July 2017 to the surgery to his leg by the 'Operation check and consent form' which is exhibit 10.
It may be inferred from this, and I find, that from 8 July 2017 medical staff at RPH did not rely on any oral consent to treatment given by the defendant on 7 July 2017 whatever the extent of that treatment might have been.
In particular, I find that the surgery performed on 10 July 2017 was performed in reliance on the plaintiff's express written consent to that surgery, and not in reliance on any oral consent given by the defendant on 7 July 2017.
However, RPH continued to rely on the CPA form as governing the financial relationship with the plaintiff by billing and receiving payment from ICWA. The plaintiff was not required to make any payment for the treatment he received at RPH.

Issue 2 - If the defendant did provide consent as set out in Issue 1, was that consent provided in circumstances giving rise to any tortious liability by the defendant to the plaintiff?

For the reasons set out below, the answer to Issue 2 is 'no'.
There is no evidence the plaintiff was asked to nominate a next of kin and I find that he was not.
I accept that the plaintiff now believes that he would not have chosen the plaintiff to be his next of kin or to make treatment decisions on his behalf, had he been asked. The evidence of the difficulties in their relationship before his admission to RPH on 7 July 2017 and the evidence in the notes about the plaintiff's behaviour towards the defendant during his admission suggest that he would not have done so. However, he also continued to live with the defendant after he was released from RPH albeit he said he did not have other options. I am inclined to the view that his current vehement objections to her acting as his next of kin are affected by hindsight; that is by what he now believes occurred during his admission to RPH.
However, I do not consider it is necessary for me to make a determination about this.
Section 110ZD of the GAA provides that:
(1) If a patient is unable to make reasonable judgments in respect of any treatment proposed to be provided to the patient, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.
(2) The person responsible for the patient is the first in order of the persons listed in subsection (3) who -
(a) is of full legal capacity; and
(b) is reasonably available; and
(c) is willing to make a treatment decision in respect of the treatment.
(3) For subsection (2), the persons are the following -
(a) the patient's spouse or de facto partner if that person -
(i) has reached 18 years of age; and
(ii) is living with the patient;
(b)the patient's nearest relative who maintains a close personal relationship with the patient;
(c) the person who -
(i) has reached 18 years of age; and
(ii) is the primary provider of care and support (including emotional support) to the patient, but is not remunerated for providing that care and support;
(d) any other person who -
(i) has reached 18 years of age; and
(ii) maintains a close personal relationship with the patient.
(4) For subsection (3)(b), the patient's nearest relative is the first in order of priority of the following relatives of the patient who has reached 18 years of age -
(a) the spouse or de facto partner;
(b) a child;
(c) a parent;
(d) a sibling.
(5) For subsection (3)(b) and (d)(ii), a person maintains a close personal relationship with the patient only if the person -
(a) has frequent contact of a personal (as opposed to a business or professional) nature with the patient; and
(b) takes a genuine interest in the patient's welfare.
(6) For subsection (3)(c)(ii), a person is not remunerated for providing care and support to the patient although the person receives a carer payment or other benefit from the Commonwealth or a State or Territory for providing home care for the patient.
(7) The person responsible for the patient cannot consent to the sterilisation of the patient.
(8) When making a treatment decision for the patient, the person responsible for the patient must act according to the person's opinion of the best interests of the patient.
(9) A treatment decision made by the person responsible for the patient has effect as if -
(a)the treatment decision had been made by the patient; and
(b)the patient were of full legal capacity.

Section 110ZC of the GAA defines a patient as a person who needs treatment. The term 'treatment' is defined in s 3 of the GAA, relevantly, as meaning medical or surgical treatment, including a life sustaining measure. A treatment decision is also defined in s 3 and, relevantly, means a decision to consent or refuse consent to the commencement or continuation of any treatment of the person.
Section 110ZL(1) of the Act provides, in effect, that a health professional may provide treatment in the absence of consent if the patient needs urgent treatment and is unable to make reasonable judgments in respect of treatment, and it is not practicable to obtain consent from the person responsible for the patient.
On the basis of the evidence I have accepted I infer, on the balance of probabilities, that the medical staff at RPH had formed the view that the plaintiff was not able to make reasonable judgments about his treatment at the time he was admitted on 7 July 2017. There was clearly a reasonable basis for the RPH staff to form that view given my finding that it is more likely than not that the plaintiff was under the influence of methylamphetamine at that time.
There is no dispute that the defendant was, in fact, the plaintiff's nearest relative within the meaning of s 110ZD(3) and I find that she was. I also find that at the time of the accident the defendant did have frequent contact of a personal nature with the plaintiff as a result of his living with the defendant and having done so for at least more than a month before the accident.
I am also satisfied that as at 7 July 2017 the defendant took a genuine interest in the plaintiff, despite the difficulties in their relationship.
Accordingly, I am satisfied that the RPH staff were entitled by the provisions of the GAA to seek the defendant's consent to the treatment proposed to be given to the plaintiff. It is implicit from this that the defendant was authorised by the GAA to provide consent.
Although the plaintiff does not accept this, I find that the defendant's sole motivation in providing the oral consent that she did, and in signing the CPA form, was to help the plaintiff. I find that she acted out of a genuine concern to do what was best for the plaintiff's health and welfare, in light of the information she had been given that the plaintiff needed urgent treatment for the serious injuries he had suffered in the accident, including a broken leg. I accept the defendant's evidence in this respect, which finds tangible support in the undisputed evidence that she allowed the plaintiff to live in her home after his discharge from RPH despite the abuse of her that is recorded in the RPH medical records.
The defendant had reasonable grounds for believing that the treatment she consented to was necessary to protect the plaintiff's health and welfare, in light of what she had been told by RPH staff. Indeed, there is no dispute that the plaintiff did require the treatment he received at RPH other than the treatment he alleges he received referred to at [11] above.
The absence of consent has potential consequences for a health professional providing treatment, including allied health professionals, including exposing them to liability for battery or assault. The GAA deals with the consequences for the person providing treatment when a 'responsible person' makes a 'treatment decision'. Section 110ZK(2) of the GAA relevantly provides, in effect, that, if a health professional provides treatment reasonably believing that the patient is unable to make reasonable judgments in respect of that treatment and relying in good faith on what is purportedly consent by the person responsible for the patient under s 110ZD, the health professional is taken to have acted as if that consent had been given by the patient and the patient were of full legal capacity. A health professional is taken to have relied in good faith on what is purportedly consent if, after considering whether or not to rely on it, the health professional acted honestly in relying on it: s 110ZK(3) of the Act. There is nothing to suggest that the staff at RPH did not do so.
However, the GAA is silent on the consequences for the person providing consent. This may well be because the drafters of the legislation did not envisage the possibility of a claim against a person falling within s 110ZD(5), in particular a person taking a genuine interest in the welfare of the person for whom treatment decisions are being made.
A claim in negligence is to be determined in accordance with the provisions of the Civil Liability Act 2002 (WA) (CLA) insofar as the element of duty of care is concerned.
Section 5B(1) of the CLA provides that a person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless:
(a)the person knew or ought to have known of the risk;
(b)the risk was not insignificant; and
(c)in the circumstances a reasonable person in the person's position would have taken those precautions.
Section 5B(2) of the CLA provides that, in determining whether a reasonable person would have taken precautions against a risk of harm, the relevant considerations include the probability that harm would occur if care is not taken, the likely seriousness of the harm and the burden of taking precautions.
The element of breach of duty is to be considered by the application of common law principles rather than the CLA. These were stated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 - 48 as follows:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not farfetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
The first step therefore is to assess the risk of harm that the defendant may be said to have a duty of care to take reasonable steps to avoid. There is no identification of this in the statement of claim, other than that the plaintiff says that he should have been included in the treatment decisions and to be allowed to make his own treatment decisions: par 6 of the statement of claim. That is not a 'risk of harm' in my view.
The only apparent risk is a risk that the proposed treatment for which consent is sought results, for some reason, in the plaintiff suffering some other injury in excess of the injury for which treatment is being received. In my view, whilst it may be said that people generally understand that treatment, in particular surgery, comes with some such risks, the defendant is unlikely in these circumstances to have perceived such risks were 'not insignificant'.
In any event the precaution the plaintiff is apparently alleging the defendant should have taken was to not provide her consent to the plaintiff's treatment. In my view, a reasonable person in the defendant's position would not have taken that precaution.
If the precaution the plaintiff is alleging the defendant should have taken is not to provide consent without first being satisfied there was a need for the treatment, there can have been no breach of duty on the facts as I have found them. The defendant, upon asked to do so, provided consent to treatment that she had been told was necessary and, as far a surgery to the broken leg was concerned, was obviously necessary. In giving that consent the defendant acted in good faith in what she believed was the plaintiff's best interests. On the facts she had reasonable grounds for that belief.
In fact, it is clear that the plaintiff has no concerns about what might be described as routine treatment, including the surgical repair of his leg. There is no dispute that surgery was necessary to repair the plaintiff's leg. Nor does the plaintiff raise any other issue with the treatment he received on 7 July 2017.
The plaintiff's concerns are with the 'appliance' referred to at [11]. I am satisfied that the defendant did not, at any stage, consent or agree to plaintiff receiving any such treatment. Nor was it foreseeable that, in providing the consent given on 7 July 2017, any such treatment would take place, given the plaintiff's injuries. Accordingly, there is no basis for imposing on the defendant any legal liability in negligence for damages suffered by reason of that alleged treatment, even assuming it to have taken place.
Accordingly, I find that there is no liability in negligence by the defendant to the plaintiff.
In addition, there is no other basis of which I am aware in tort which could attach liability by defendant to the plaintiff for providing consent, in good faith, to treatment that the defendant reasonably believed to be the plaintiff's best interests.
On the facts as I have found them I cannot identify any basis at law upon which the defendant could be found liable to the plaintiff.
My views set out above are the same whether or not the defendant was, in fact, the appropriate person from whom to seek consent pursuant to s110ZD.

Issue 3 - Did the defendant consent to the plaintiff receiving any other medical treatment by staff, including by allied health staff, from the EMHS during the period at Royal Perth Hospital between 7 July 2017 and 31 December 2017?

It appears that the period 'between' 7 July 2017 and 31 December 2017 is intended to exclude 7 July 2017 itself, in light of the terms of Issue 1. However, to the extent that the question refers to treatment by allied health staff on 7 July 2017, that is dealt with under Issue 1.
There is no evidence that the defendant consented to any medical treatment being administered to the plaintiff by any staff, including allied health staff, after 7 July 2017 and I find that she did not.
As I have found, from 8 July 2017 RPH staff sought consent from the plaintiff himself for treatment provided to him.
Accordingly, the answer to Issue 3 is 'no'.

Issue 4 - If the defendant did provide consent as set out in Issue 3 was that consent provided in circumstances giving rise to any tortious liability by the defendant to the plaintiff?

It is not necessary for me to determine this issue in light of the finding I have made in relation to Issue 3.
However, even if it were the case that RPH staff continued to rely on the defendant's consent given on 7 July 2017 after that date, contrary to my finding, for the reasons given in relation to Issue 2, I find that the defendant has no liability to the defendant in giving that consent.

Strike out application

History of the pleading

Paragraph 10 of the statement of claim reads as follows:
The defendant has also caused [the plaintiff] mental harm by giving false information to public mental health services after the plaintiff has approached her requesting information on the medical records and the decisions she has made, also when the plaintiff approached the courts the defendant made contact with mental health with false information which has given a false diagnosis of a mental illness due to her premeditated attempts to avoid supplying the information. [sic]
As I have said it was difficult to understand what the plaintiff meant by par 10. Read in the context of the statement of claim as a whole, that paragraph did not appear to disclose a cause of action separately from that which has been dealt under the preliminary issues. However, given the possibility that the plaintiff was attempting to do so, on 1 February 2023 I made the following order:
With respect to paragraph 10 of the statement of claim dated 21 July 2021 the plaintiff is to file and serve by 4pm on Tuesday, 7 February 2023, particulars in relation to each occasion it is alleged that the defendant gave false information to public mental health services specifying in relation to each such occasion what the defendant is alleged to have said that is alleged to have been false, and when, to whom and how the defendant is alleged to have said it, and if what was said is alleged to have been said in writing identifying the particular document containing the writing.
The plaintiff did file a document purporting to be the required particulars on 7 February 2023. The contents of that document were very difficult to understand and appeared to raise a number of irrelevant issues. Certainly, however, that document did not comply with the terms of the order.
At the conclusion of the preliminary hearing on 10 February 2023 the defendant's counsel orally indicated that the defendant would apply to strike out par 10 as failing to disclose a cause of action.
As a result, on 10 February I made the following orders:
1.The document entitled 'Particulars' filed by the Plaintiff on 7 February 2023 be struck out.
2.By Friday 10 March 2023 the Plaintiff is to file and serve amended particulars of paragraph 10 of the Statement of Claim dated 21 July 2021 filed 19 October 2021 in relation to each occasion it is alleged that the defendant gave false information to public mental health services specifying in relation to each such occasion what the defendant is alleged to have said that is alleged to have been false, and when, to whom and how the defendant is alleged to have said it, and if what was said is alleged to have been said in writing identifying the particular document containing the writing.
3.By Friday 24 March 2023 the Respondent is to file and serve any application to strike out paragraph 10 of the Statement of Claim dated 21 July 2021 filed 19 October 2021 and any supporting affidavit and submissions.
4.The matter be listed for the hearing of any application filed under Order 3 on Monday 17 April 2023 at 10:00am.
The plaintiff did not comply with the order that he file and serve particulars by 10 March 2023.
By a chamber summons filed on 23 March 2023, the defendant applied to strike out par 10 of the plaintiff's statement of claim pursuant to O 20 r 19(1) of the Rules of the Supreme Court1971 (WA) (RSC). Although not stated in the application, the defendant relied on O 20 r 19(1)(a) that the paragraph failed to disclose a reasonable cause of action.
On 10 April 2023 the plaintiff filed a document headed with the bolded words: 'In response to the chamber summons - defendant's application to strike out paragraph 10 of the plaintiff's statement of claim dated 21 July 2021 filed 19 October 2021 not to be struck out as the following may give some particularity to the claim'. That document states:
1.Throughout the admission at Royal Perth Hospital between the dates of 06-07-2017 to 15-07-2017 the plaintiff was accused of having drug induced psychosis as a result of the defendant's interference with health professionals and was expressed on more than one occasion with multiple health professionals providing multiple services.
2.The defendant on multiple occasions had raised false concerns that the plaintiff was paranoid, violent and suffering from drug induced psychosis which led to the plaintiff rather suffering from mental distress as a result of the information the defendant was supplying to health professionals.
3.On page 60 of the Royal Perth Hospital medical records (one of the exhibits) which is a detail of an MRI which also caused mental distress to the plaintiff as a result of the information the defendant was supplying to health professionals.
4.On page 40 of the Royal Perth Hospital medical records, it is recorded that the patient is suffering from drug induced psychosis which is untrue, rather the plaintiff was suffering from mental distress due to being aware of suspicious activities of health professionals, which was after the defendant had contacted health professionals and she had given informed consent.
5.On page 72 of the Royal Perth Hospital medical records, it states that the defendant was present during a consultation by an occupational therapist and she was giving false information about the defendant which caused the plaintiff to be mentally distressed and had her removed from the room to avoid any further mental distress and interference that was unwarranted to say the least.
6.On page 121 of the Royal Perth Hospital medical records, as a result of the defendant and health professionals not sharing medical information and plans with the patient (the plaintiff) and what medication where [sic] being administered for was causing mental distress for the patient as noted in the records.
7.On page 73 of the Royal Perth Hospital medical records as per the dietetics consultation it states the patient was well nourished and visually patient appears muscly [sic] which would not usually be the appearance of a person affected by drugs as the defendant constantly accuses the plaintiff which also causes mental distress.
At the hearing on 24 April 2023 the plaintiff confirmed that he intended this document be the particulars of par 10 of the statement of claim.

Legal principles

In Vantage Holdings Group Pty Ltd v Donnelly (No 4) [2019] WASC 398 at [60], it was said, in particular, that:
(a)The court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action.
(b)The question to be decided is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action;
(c)'Reasonable' means reasonable according to law;
(d)If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable; and
(e)The mere fact that a case appears weak is not of itself sufficient to strike out the action.
The rule applies to cases which are really not arguable and great care must be taken to ensure that a plaintiff is not improperly deprived of their opportunity to have a trial of their case: Kimberley Downs Pty Ltd v The State of Western Australia (Unreported, WASC, Library No 6414, 25 August 1986).
Order 20 r 19(2) provides that no evidence shall be admissible on an application under subrule (1)(a). However, documents referred to in the pleading may be considered: Built Environs WA Pty Ltd v Perth Airport [No 4] [2020] WASC 382 at [10].
Order 20 r 19(3)(a) of the RSC requires that an application to strike out be made within 21 days of service of the pleading to which the application relates. Guidance on when time may be extended is found in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214 at [154] where his Honour Justice Le Miere said:
When exercising the discretion to extend time, the court will take into account the principles of positive case flow management. The discretion to extend time will be exercised where the interests of justice or efficient case management require it, because, for example, of an irreparable prejudice to the applicant or a prejudice to the trial process or the efficient utilisation of the resources of the parties and of the court. Such prejudice might be established by showing that the disputed pleading would unnecessarily protract either the time to be taken in preparation for trial or the conduct of the trial itself by reason of the inclusion of an allegation which had no reasonable prospect of success.

Consideration

There is nothing in the content of par 10 which enables me to identify a cause of action.
The allegations made against the defendant in the particulars are in vague, generalised terms which add little if anything to the content of par 10.
The document referred to at par 3, which is part of exhibit 3 in the trial of the preliminary issues, reads 'Patient awaiting MRI spine, CT abdomen, HIDA ? Scan. Did not want sedation before MRI' [sic]. It makes no reference to anything said by the defendant. In submissions the plaintiff said that having the MRI caused the plaintiff mental distress because the defendant gave 'informed financial consent to the procedures'. As such it appears that the allegation the plaintiff is attempting to make falls within the matters already dealt with in the preliminary issues.
The document referred to in par 4 refers to the plaintiff's own concerns about drug taking and adds nothing of relevance. In par 4 the plaintiff refers to the defendant having given 'informed consent'. Again, it appears that the allegation the plaintiff is attempting to make falls within the matters already dealt with in the preliminary issues.
The document referred to at par 6 (page 121) has no apparent relevance to the matters referred to in that paragraph. At page 122 of the RPH medical records there is reference to the need for staff to explain to the plaintiff what medications were being administered and why. However, the defendant could have no obligation to do that.
Paragraph 7 appears to refer to the content of page 73 of the RPH medical records as evidencing that the plaintiff did not have the appearance of someone affected by drugs. That could not form the basis of any action against the defendant.
Paragraphs 1 and 2 of the particulars refer to the plaintiff suffering mental distress a result of the defendant having, on unspecified occasions to unspecified health professionals, raised false concerns that the plaintiff was 'paranoid, violent and suffering drug induced psychosis'. Paragraph 5 claims that 'false information' the defendant was giving an occupational therapist caused the defendant to be mentally distressed, after which he had her removed from the room to avoid further mental distress. The only identification of what was said, in page 72 of the RPH medical records, concern an expression of disbelief at an allegation the plaintiff had made against a relative.
In light of the contents of these paragraphs I have considered whether there is anything in par 10, the particulars, or the plaintiff's oral submissions which might give rise to a cause of action against the defendant for intentionally causing physical harm by deceit: see Magill v Magill (2006) 226 CLR 551 [117] to [119] (Gummow, Kirby and Crennan JJ).
As summarised by Rothman J in Clavel v Savage [2013] NSWSC 775[1] at [36] the elements of such a cause of action are that:
(a)the defendant, without justification or lawful excuse, has wilfully done an act calculated to cause harm to the plaintiff; and
(b)that conduct:
1.causes the plaintiff harm, including a recognised psychiatric injury but not mere distress or upset; and
2.was reasonably likely to cause the harm in a normal person.
[1] While Clavel v Savage was overturned on appeal the statement of the law on this point was not criticised.
The contents of par 10, the particulars and his oral submissions indicate that the plaintiff's concern is that the defendant may have said to some unidentified health professional on some unidentified occasion that the plaintiff had a mental illness which the plaintiff says was not, and is not, true. That is the plaintiff does not allege that he is suffering some recognised psychiatric illness as a result of what the defendant is alleged to have said. It is his position that he does not suffer a mental illness.
The distress the plaintiff refers to is 'mental distress' in the nature of being upset and of an apparently transient nature.
In addition, a statement of the type apparently referred to by the plaintiff would not be reasonably likely to cause any injury in a normal person other than transient distress or upset.
It is not clear to what extent this potential cause of action is affected by the terms of s 5S of the CLA, which concerns when a duty of care not to cause mental harm arises. Section 5S(1) provides that a person does not owe a duty of care not to cause mental harm unless the defendant ought to have foreseen a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. It follows from what I have said at [154] that there could be no duty of care in this case.
Accordingly, I am satisfied that there is nothing referred to in par 10, the particulars or par 10, or in the plaintiff's oral submissions made at the hearing on 24 April 2023 that discloses a cause of action against the defendant.
Given the order I made on 10 February 2023, it may not be necessary for the defendant to apply for an extension of time to file the application. However, to the extent it is necessary, I consider it is appropriate that the time for bringing that application be extended to 23 March 2023 given the ambiguity of what the plaintiff intended by par 10, and in particular whether it sought to plead a claim beyond the scope of matters falling within the scope of the preliminary issues, and given my views about the merits of the application.

Conclusion

The preliminary issues are determined as follows:
(a)Issue 1: Yes;
(b)Issue 2: No;
(c)Issue 3: No; and
(d)Issue 4: No.
Paragraph 10 of the statement of claim dated 21 July 2021 is struck out as failing to disclose a cause of action.
In considering the appropriate consequential orders I have considered whether the plaintiff should be given an opportunity to replead in relation to par 10. However, I do not consider that, with more time, there is any reasonable prospect of him being able to articulate a cause of action in addition to the cause of action I have dismissed in the hearing of the preliminary issue.
Accordingly, the plaintiff's action against the defendant is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LP
Associate to Her Honour Judge Vernon
18 AUGUST 2023