Chahoud v Koleda

Chahoud v Koleda - [2008] NSWSC 1060 - NSWSC 2008 case summary — Zoe

[73]

DR. V. KOLEDA" 9 The Court accepts, without deciding, that the letters, either or both, caused the respective outcomes in the Lebanese courts. There is no evidence of the law or procedure adopted by those courts. I assume, although it is presently irrelevant, that the legal system is a civil law system through which the ecclesiastical courts operate and they operate fairly to achieve outcomes in accordance with the law of Lebanon. 10 The Court makes one other comment of a general nature before dealing with each of the questions. The plaintiff's submissions seem, in part, to suggest that the Court ought not answer the questions posed because it is inappropriate (or misconceived) to determine separately the issues of the existence of the duty of care, the time limitation in commencing the procedure, and the issue of witness immunity upon which Question (iii) depends. 11 There are substantial reasons for not separately determining issues except in exceptional cases. However, the plaintiff consented to orders for the separate determination of these questions. Further, while some of the agreed facts would be in issue if the matter were to proceed, the agreed facts represent the facts as the plaintiff alleges them. Given the agreement of the parties and the fundamental and preliminary nature of the issues raised by the questions, the Court should proceed to deal with the questions asked. The foregoing does not mean that each question should be answered. If the answer to a question would depend on different facts (not agreed) or the answer to a different question, then the Court may not answer the question posed. Question (i): Duty of Care to the Plaintiff 12 The plaintiff submits that a duty of care exists when, in the reasonable contemplation of the wrongdoer (in this case Dr Koleda), carelessness on his part may be likely to cause damage to the plaintiff unless there are considerations which negative, reduce or limit the scope of the duty or the class of person to whom it is owed. In so submitting, the plaintiff relies on the judgment of Lord Wilberfoce in Anns v Merton London Borough Council [1978] AC 728 at 751-752. The plaintiff submits there are no considerations, in the present case, that ought to negative, to reduce or to limit the scope of the duty or the class of person to whom it is owed. 13 The plaintiff submits that the agreed facts disclose a knowledge that the plaintiff was a member of the class of persons that Dr Koleda knew would likely be damaged by his carelessness in writing the letter. At the very least, the plaintiff submits, it is an inference that the Court should draw. 14 The plaintiff submits that the defendant only came into contact with the deceased after his admission to Villawood Nursing Home, i.e. after the alleged stroke. On the file at the Nursing Home was the power of attorney nominating the plaintiff. Consequently, the plaintiff submits, if the defendant were to owe a duty to the deceased, he also owed a duty to the plaintiff, as the deceased's nominated attorney and decision-maker and the only immediate relative of the deceased in Australia. 15 The principle upon which the plaintiff relies to establish a duty of care, derived from Anns, if it still be the law in the U.K. (see Caparo Industries v Dickman [1990] 2 A.C. 605), is not the basis of establishing duty of care in Australia. The authorities in Australia, while in some areas difficult to apply, do not start with the proposition that there is a duty to all persons likely to be caused damage by carelessness unless there is good reason to limit or negative the duty. Foreseeability of risk is not the determinant of legal liability. As the High Court said in Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562: "42. The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care." (Per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.) 16 The issue, on Australian authority, is whether the law imposes a duty. It is not resolved by restating the foreseeability test. The High Court in Sullivan v Moody cited with approval the comment of Professor Fleming who said "'no one has ever succeeded in capturing in any precise formula' a comprehensive test for determining whether there exists, between two parties, a relationship sufficiently proximate to give rise to a duty of care of the kind necessary for actionable negligence." (See Sullivan v Moody at [48].) Proximity is the question, not the answer. 17 Further, the High Court dealt with how a court determines the existence of such a duty. Their Honours said: "[50] Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle. In Donoghue v Stevenson , for example, Lord Buckmaster, in dissent, was concerned that, if the manufacturer in that case was liable, apart from contract or statute, to a consumer, then a person who negligently built a house might be liable, at any future time, to any person who suffered injury in consequence; a concern which later cases showed to have been far from fanciful. The problem which has caused so much difficulty in relation to the extent of tortious liability in respect of negligently constructed buildings was not only foreseeable, but foreseen, in the seminal case on the law of negligence.

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[61] There is also a question as to the extent, and potential indeterminacy, of liability. In the case of a medical practitioner, the range of people who might foreseeably (in the sense earlier mentioned) suffer some kind of harm, as a consequence of careless diagnosis or treatment of a patient, is extensive." 19 Accepting, without deciding, that the special position of the plaintiff in relation to the deceased, gave rise to a relationship between the plaintiff and the defendant, does that relationship impose an actionable duty in relation to the provision to a court of an honest but negligently mistaken view as to the condition of the deceased? 20 The duty alleged by the plaintiff does not depend upon the location of the court. It is a duty that would render actionable a negligent opinion on the capacity of the deceased provided to this Court. 21 The determination of the existence of a duty of care and its scope has been discussed further by the High Court in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 ("Dederer"). There has been much comment on Dederer and its effect. Some have suggested that it is confined to road authorities, but the approach taken by the majority is not so confined and the general tests, at least if the authority has taken some steps, are the same: Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at [89] per Gaudron, McHugh and Gummow JJ, and Kirby J at [226] and following. 22 However, the principles refined in Dederer relate essentially to whether the duty of care must take account, as a matter of fact or as a matter of law, of the foreseeability of risks to persons who do not take proper care for their own safety (compare Edson v Roads & Traffic Authority [2006] NSWCA 68; (2006) 65 NSWLR 453). While the issue is most relevant to personal injury cases, it seems not to be so confined and, for example, may encompass issues relating to financial and other advice to persons who may act without proper regard for their own interests. 23 Nevertheless, this is not a case that turns on such a refinement. This case is a useful one for the approach suggested by Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at [104]. There his Honour said: "In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend." 24 If the defendant, Dr Koleda, were to be held responsible for the "damage" in this case, it would not be a duty confined to these two letters. It would require the Court to impose upon medical practitioners a duty not to disclose their honestly-held but negligently-formed opinion to courts, if the opinion were antithetical to the legal interests of their patient and to their patient's personal representative and/or family. 25 The remedy for a view of that kind, however negligently formed, is in the proceedings in which that view is expressed; not in the law of negligence. 26 There are a number of paths by which one may reach that conclusion. First, by analogy, the duty sought to be imposed most resembles the circumstances in Sullivan v Moody, supra. 27 Second, if there be a duty of care, it would be to act consistently with the interests of the patient. If a medical practitioner honestly (but negligently) believes that a patient did not have capacity to execute a will, the medical practitioner's duty to the patient would override any alleged duty to his beneficiary under the will. 28 Third, any duty owed to the plaintiff would be confined to a duty owed to him in his capacity as the attorney under the deceased's power of attorney or as his family representative. While such a duty may extend beyond the deceased's demise, it would not extend to a duty to the plaintiff in his capacity as a beneficiary of the deceased's will. 29 Fourth, the duty to give honest evidence to a court (or legal representative on behalf of the court) must override any duty to the plaintiff. If the honest view expressed were formed negligently, so be it. That view will no doubt be an issue in the proceedings. On this analysis, even the test in Anns, supra, relied upon the plaintiff, would not permit this claim to proceed, because the consideration of the duty to give honest evidence when required so to do would negative any general duty. 30 For the foregoing reasons, there is no actionable duty of care owed by Dr Koleda, the scope of which would provide the plaintiff with a cause of action in negligence for writing letters to a court expressing a view, negligently formed, as to the capacity of the deceased. Question (ii): Limitation of Action 31 The plaintiff commenced these proceedings on 6 September 2005. The applicable limitation period is 6 years pursuant to the terms of s 14 of the Limitation Act. 32 The first letter, which is the basis for the allegation of negligence in paragraph 14 of the Statement of Claim, is dated 18 March 1995. The date specified in the letter is plainly wrong. It seems clear, and is certainly more probable than not, that the first letter from Dr Koleda was written on 18 March 1996. 33 The plaintiff alleges loss and damage as a result of the first letter. That loss and damage includes the relevant legal costs for the proceedings in Lebanon, ancillary legal fees paid to legal practitioners in Australia, other peripheral expenses e.g. travel between Australia and Lebanon, stress, and the loss of the deceased's property in Lebanon. 34 At the very latest the damage or prejudicial effect of the first letter was first realised when the Lebanese court determined that the other uncle should have the property because he, not the plaintiff, was the proper beneficiary. The estate proceedings were the subject of judgment by the Lebanese court on 5 February 1998, more than seven and a half years before the commencement of these proceedings. 35 The date from which time runs for the purpose of the Limitation Act is, on the applicable principles, easily stated, but sometimes difficult to apply. The cause of action in negligence is not complete on the performance of the negligent act, but is complete when the plaintiff first suffers actual loss and damage: Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302 at [13]. For damage to be suffered, it must be more than contingent or inchoate: Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514; and must be substantial (other than nominal or ephemeral) or measurable: Scarcella, supra. 36 The fact, if it be the fact, that damage has not stabilised, or its full extent ascertained, is irrelevant to the limitation period, provided that some substantial damage has occurred: Wardman v Hatfield [2003] NSWCA 283. 37 In the current proceedings, damage of a substantial kind occurred, on the allegation of the plaintiff, when the Lebanese court judgment was issued i.e. on 5 February 1998. If, as the plaintiff alleges and must allege to succeed, the Lebanese court's judgment was "caused" by the first letter, the proceeding in this Court, insofar as it relies on damage arising from the first letter, is out of time. This aspect does not affect the second letter. Question (iii): Witness Immunity 38 The question as asked raises the issue of witness immunity, which is relied upon by the defendant. The plaintiff submits that neither of the two letters fall under the umbrella of absolute immunity under either Australian or Lebanese law. Frankly, the submission of the plaintiff misses the point. The plaintiff says: "[44] The Plaintiff submits that neither of the Defendant['s] two letters could fall under the umbrella of absolute immunity or to any claim for privilege either under Australian or Lebanese law.

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(x) neither of Doctor Koleda two letter would come anywhere near satisfying the standard by the High Court in Roger v Whitaker (1992) 175 CLR 479." 39 The plaintiff then refers to the duty of a medical practitioner to a patient to exercise reasonable care and skill in the provision of professional advice and refers to the duty including the provision of information. The plaintiff submits that the Court "should not lose sight" of a number of factors, which are described as "critical", each of which refer to the importance of the letters in the Lebanese proceedings; the factual errors in the contents of the letters; the language difficulties as between the deceased and the defendant; and the like. The purpose of this submission is to argue that the defendant "fell short of an expected standard as a medical officer" and that "nothing that he would have said as a witness or written in report would have fallen under the umbrella of absolute privilege." The plaintiff then submits that Dr Koleda should have taken certain steps and that "a prudent medical officer would not have written either … letter". 40 Ultimately the plaintiff puts the concluding submission in the following terms: "The Plaintiff submits that the Court would not have any hesitation in finding that in the circumstance that had transpired and the erroneous content of both of Dr Koleda's letters that the Defendant['s] claim to absolute privilege simply does not apply." 41 As earlier stated, the submission misses the point. Whether Dr Koleda had available to him the option that evidence not be given, or whether Dr Koleda's evidence was correct or incorrect, the issue raised by the question is whether, the letters having been written, the letter and their contents fell within the immunity granted to witnesses. 42 The principle is clear. A witness has absolute immunity for what is said or done in Court: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [39]. 43 The rationale underpinning witness immunity is the same as that which grants immunity to jurors, judges and advocates. In D'Orta-Ekenaike, the High Court said: "[31] In Giannarelli , Mason CJ said that 'the barrister's immunity, if it is to be sustained, must rest on considerations of public policy'. His Honour explained that the term 'immunity' was used in a sense which assumed that rights and duties might otherwise exist at common law, but the immunity is sustained on considerations of public policy and 'the injury to the public interest that would arise in the absence of immunity'. Of the various factors advanced to justify the immunity, 'the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings' (emphasis added) was held to be determinative. The significance of the reference to the administration of justice is of fundamental importance to the proper understanding of the immunity and its foundation.

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[42] In R v Skinner , Lord Mansfield said that 'neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office'. Of that immunity it has been said in Mann v O'Neill that it responds to two related considerations, 'to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences' and 'the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment' other than by appellate processes. That view of the matter reflects the consideration that what is at stake is the public interest in 'the effective performance' of its function by the judicial branch of government." ( D'Orta-Ekenaike , per Gleeson CJ, Gummow, Hayne and Heydon JJ.) 44 Because the immunity is the same as that which grants immunity to jurors, judges and advocates in that capacity, all that a witness does in Court must be immune and all that is done by the witness out of court, which is so intimately connected with the evidence or the manner it is given, must also be immune: Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; Ollis v New South Wales Crime Commission [2007] NSWCA 311. "But it does not matter whether the action is framed as an action for defamation or as an action analagous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice. The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court": Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 per Starke J at 141. 45 The issue that arises, although it seems not from any submission of the plaintiff, is whether the immunity of a witness applies to evidence "prepared, provided or adduced" for proceedings overseas. While the High Court has injuncted trial judges from extending the immunity beyond that which has been clearly adumbrated, this is a question that does not require the extension, by analogy or otherwise, of the immunity, but rather requires a determination of the limits, if any, of the immunity. 46 "The advancement of public justice" or "considerations of public policy" and the finality of judicial proceedings are not matters that are confined to proceedings in New South Wales, nor in Australia. As a matter of strict theory, if the witness immunity applies to proceedings in another state or jurisdiction, then there is no obvious reason why it does not apply to proceedings in the United Kingdom, the United States or, in this case, Lebanon. 47 The principles and policy of the Court in dealing with the enforcement of foreign judgments confirms that approach. Different issues may arise if there were an allegation of fraud or a procedure so antithetical to the process of judicial proceedings in this State that a court formed the opinion that the proceedings were not of a kind that would be recognised as appropriate for the application of the immunity. But in Australia the immunity has been applied to proceedings beyond proceedings for the exercise of judicial power, and, with respect, properly so: see, inter alia, Pollock v Waterhouse [1999] NSWSC 1053, per Levine J applying the privilege to proceedings before the Thoroughbred Racing Board. No submission is made in these proceedings that it is inappropriate for the immunity to apply to the courts in Lebanon, by virtue of any deficiency in the process in Lebanon or because of the status of those courts. 48 On any analysis, the two letters here in question are letters which would fall within the immunity of a witness and the preparation of them would fall within the immunity of the witness: see, inter alia, Meadow v General Medical Council [2007] QB 462 at [12]. Conclusions 49 For the foregoing reasons, the questions have been answered in the manner sought by the defendant. The defendant, in his motion, seeks further orders relating to the dismissal of the whole of the proceedings on the basis of the answers to the questions. Little or no attention has been paid by the parties as to the appropriateness or otherwise of that course. I am mindful, for example, that the statement of claim does not rely solely on negligence, but alleges (about which I now make no comment) deliberate conduct on the part of the defendant: see [24] of the statement of claim. 50 As a consequence, I will leave to another date any orders consequential upon the answering of these questions. 51 The Court makes the following orders:

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