Lee v Fairbrother

District Court of NSW|2009-07-10

Background 3. At the time of the events which are the subject of these proceedings, the defendant was a medical practitioner conducting his practice at the Wyoming Medical Centre. There is no dispute that he was consulted by the plaintiff in January 2004, firstly in connection with a dog bite suffered by her son Zac, and subsequently by the plaintiff on her own behalf in connection with a pre-existing obsessive compulsive disorder which had been exacerbated by the dog bite and her concerns about its effect upon her son and his welfare.

Nor is there any dispute that the plaintiff and the defendant had a sexual relationship of some duration in 2004 when they lived together for a period. That relationship ended acrimoniously in early 2005. There is a dispute, however, as to when the sexual relationship began. The plaintiff's case is that it only commenced in August 2004. The defendant's case is that it commenced before the consultations in early 2004, and that he met her at a nightclub in Terrigal towards the end of 2003 and had a number of sexual encounters with her, but that the relationship had petered out towards the end of that year.

The plaintiff's case 6. The plaintiff is a thirty-two-year-old single mother with a nine-year-old son, Zac, from an earlier relationship. She went to school to year 12 in 1987, although she did not finish the Higher School Certificate. She later did the Higher School Certificate at TAFE, in 1995. She then worked from time to time as a waitress and at a call centre, and in other sporadic employment. In 2002-2003, she did two years at university in an undergraduate degree course for teaching, but dropped out after two years because she decided that she did not want to be a teacher. More recently, in 2006, she attempted to go back to university to undertake a Bachelor of Arts degree, but was unable to cope mentally and dropped out.

The plaintiff has suffered from mental problems from an early age, it having been subsequently determined that she was an obsessive compulsive from the age of about five. She also says she was sexually assaulted by her sister's boyfriend when she was a young teenager, and that she has had mental issues about those events ever since. She failed to complete her Higher School Certificate due to her disturbed state of mind at that time of her life, when she was a heavy drug user. At the age of sixteen, she had a breakdown at a time when she was using some ten cannabis cones a day.

Although the plaintiff had obsessional symptoms all her life, she was only diagnosed with that condition (OCD) in 1996 at the age of nineteen, and was treated with medication; in particular, Zoloft.

In 2000, she came under the care of Dr Sandra Smith, a psychiatrist practising in Gosford. The plaintiff underwent cognitive behaviour therapy and was treated with medication including sertraline, to which she responded well. The combination of this treatment, the medication and the birth of her son Zac all contributed to a period of relative stability so far as that condition was concerned, and between July 2000 and December 2003 she did not need to see Dr Smith at all.

In early January 2004, the plaintiff's son Zac was bitten by a dog. She then took him to the Wyoming Medical Centre, where she was seen by the defendant, then Dr Fairbrother. The dog bite to her son triggered an exacerbation of her obsessive compulsive condition, for which she then consulted Dr Fairbrother herself, seeking a referral back to Dr Smith. She then went back to see Dr Smith on three occasions in early 2004, but again, with appropriate treatment, her condition settled down and the consultations ceased.

It is well established by the Medicare records that the following consultations occurred with Dr Fairbrother in early 2004: 3 January 2004, Zac; 9 January 2004, Ms Lee; 29 January 2004, Zac; 9 February 2004, Ms Lee; 9 March 2004, Zac; 14 March 2004, Zac and Ms Lee. It is Ms Lee's case that she thereafter continued to see Dr Fairbrother at the Wyoming Medical Centre, but that he ceased charging Medicare for her visits. This was because she told him she was attracted to him, and he told her he was attracted to her.

She says she asked him whether he should continue as her doctor, and he reassured her it would not be a problem. She contends that he no longer recorded her visits to avoid detection of the developing relationship. Ms Lee says that no sexual activity occurred at the Medical Centre apart from a kiss and a cuddle on one occasion, but that the relationship was developing during that time. It was not until August 2004 that the sexual relationship started, when Mr Fairbrother's previous girlfriend moved out and Ms Lee moved in. She lived for periods at his house at North Avoca, and he also spent time at her house.

The relationship continued throughout 2004, and as I said earlier, broke down in early 2005. In the meantime, Ms Lee contends that they were engaged to be married, and set about making wedding plans for December 2004. The wedding never eventuated. After the relationship broke down, it became acrimonious. There were a number of episodes, but in particular, there was an episode when the plaintiff's car was torched, following which she was admitted to the Mandala Psychiatric Unit attached to the Gosford Hospital, where she was diagnosed with a cocaine-induced psychosis. Whilst she was in that Unit her house at Lisarow was burned down. These fires had a profound effect upon her, and put her in fear of her personal safety and that of her son. She believed Dr Fairbrother was responsible for both of these events. They were investigated by the police, but there was no evidence to connect Mr Fairbrother with either event. Although he was arrested after the house fire he was not charged.

The plaintiff alleges that as a result of her relationship with Mr Fairbrother she has suffered significant psychological problems. I will come to the nature of her condition later in these reasons. Her case is that the sexual relationship was a breach of the defendant's duty as a medical practitioner to the plaintiff as a patient, in tort and in contract, the breach of which has caused her ongoing psychiatric condition.

She pleads an alternative case against the defendant in assault, on the basis that she was, by reason of her prior psychiatric condition, incapable of consenting to the sexual relationship.

The defendant's case 16. The defendant is now a deregistered, unemployed medical practitioner. I will come to the findings of the Medical Tribunal shortly. It is to be noted, however, that he was unrepresented in these proceedings, and conducted his own defence. (He was, however, represented before the Medical Tribunal). It is his defence that the sexual relationship with the plaintiff did not occur during any treatment of her, or at least any significant medical treatment.

He says, firstly, that he had in fact had a prior sexual relationship with the plaintiff in 2003 when he met her at a nightclub, following which they had a further four or five meetings which involved or culminated in sexual relations, but that relationship petered out by the end of 2003. He says the plaintiff then came to the Medical Centre in January 2004 with her son, but he did not say anything to her other than of a medical nature connected with her son's injury.

The various consultations to which I have already referred then took place during January, February and March, and he says they then ceased and that any medical treatment by him during that period was unaffected by the prior sexual relationship, or for that matter by the subsequent sexual relationship, and that any harm she may have subsequently suffered was not connected to his medical treatment of her. He says it was not until August 2004 that the sexual relationship resumed, and that between March and August he, in fact, refused to treat her at the Medical Centre.

As to her psychiatric condition, it is the defendant's contention that Ms Lee's problems were caused not by her relationship with him, but by the two fires involving her car and her house. His case is that her problems are all due to her pre-existing psychiatric condition, and were not caused by his relationship with her. He submits that nothing he did affected the plaintiff psychiatrically, at least as a medical practitioner, and that it was just a boyfriend/girlfriend relationship, the breaking up of which did not cause any problems suffered by the plaintiff by reason of his being a doctor.

In his final submissions he said he believed he had been harshly treated, and that his name had been wrongly removed from the Register of Medical Practitioners by the Medical Tribunal. He said that he had been beguiled by the plaintiff who is not the fragile and frail figure she paints herself, and as to which Dr Smith has accepted she is. He described her as a predator, and that he is merely the latest victim in a line of victims.

He said further that he has no remorse for his conduct, and that the plaintiff is a vindictive person who was never emotionally dependent upon him, but simply used and abused him and has ruined his career, all because he would not marry her.

The issues as to liability 22. The main areas of dispute between these parties concerns the following.

Firstly, whether the defendant had an inappropriate relationship with the plaintiff that was in breach of his duty of care to her as her medical practitioner.

Alternatively, whether the plaintiff was incapable of forming the necessary consent to the sexual relationship, such that the defendant's conduct amounted to assault.

Thirdly, if the answer to either of these questions is, yes, there is a live issue as to causation: whether the plaintiff has suffered from any psychiatric deterioration arising out of the defendant's conduct as a medical practitioner, or whether her problems are due solely to a consensual sexual relationship unrelated to the defendant's status or conduct in his capacity as a medical practitioner, that relationship having come to an acrimonious conclusion.

The proceedings before the Medical Tribunal 26. Before coming to consider these issues, it is instructive to examine the proceedings before the Medical Tribunal.

The orders and reasons of the Medical Tribunal were handed down on 18 December 2008. After reviewing the evidence the Tribunal made a number of findings. In the process of reaching those findings the Tribunal was critical of the credibility of both the plaintiff and the defendant. I am, of course, required to form my own views as to credit.

As to the defendant, my assessment is similar to that of the Medical Tribunal. There were two particular aspects of his evidence that convinced me of his unreliability as a witness. The first related to the sum of $10,000 paid to the plaintiff. His denial of the payment and his explanation as to how the payment, which was done by way of an Internet transaction, was the result of an error is totally unconvincing. Likewise, his denial of his engagement to the plaintiff is also untrue. His explanation about the ring he purchased for her not being an engagement ring was unacceptable, particularly the assertion that he is now unable to remember when and in what circumstances the ring was given to the plaintiff. When confronted with his admission to the police that he and the plaintiff had become engaged he said that the police must have made an assumption, incorrectly, that they were engaged. In my view that was a facile attempt to obscure the reality. There was also evidence before the Medical Tribunal from a wedding photographer and a marriage celebrant that they had met with the plaintiff and the defendant to make arrangements for the wedding. All one could say about all this is that if, as the defendant now vehemently maintains, he did not plan to marry the plaintiff, he certainly led her a merry dance. Further evidence of his deceit.

The Medical Tribunal was highly critical of the defendant. It said, for example: "The flavour of the respondent's evidence in relation to this event, and indeed much of his evidence, was that he was simply making up his answers to respond to the cross-examination as it unfolded. The situation he attempted to portray, that a patient of the medical centre could go to pathology and ask for blood tests to be conducted, that a person in that department would take the blood and determine what tests to order, including thyroid testing, nominate the respondent as the requesting doctor and forge his signature on the pathology request form, beggars the imagination. It is not credible that had this sequence of events occurred the respondent would not have pressed for information about this apparent anomaly in the system for obtaining blood tests." Then at paragraph [52]: "The respondent's evidence was riddled with inconsistencies, and it seemed to the Tribunal that he could not recall the evidence that he had given some short time before. For example, he said that he had given the patient his mobile telephone number in 2003 when they had a sexual relationship. Later, when he was being asked questions about the asserted relationship in 2003, he said that he had not given the patient his mobile phone number, but said that they had made arrangements for the next meeting at the end of the previous meeting." Then at [53]: "Such were the inherent improbabilities, the inconsistencies and the apparent untruths in the respondent's evidence, the Tribunal is unable to accept him on any point other than where is directly supported by objective evidence."
My assessment of his credibility is similar, and I approach the totality of his evidence with the utmost caution.

The Tribunal rejected the defendant's assertions of a prior sexual relationship before 2004. In doing so it declined to accept the evidence of two witnesses he called, who said they met the plaintiff before January 2004 in the company of the defendant.

I do not need to concern myself with this evidence, as those witnesses were not called in these proceedings.

The Tribunal found that there was inappropriate conduct on the defendant's part during the consultations between January and March 2004, when he kissed the plaintiff and ask her to go out on a date. It said at paragraph [83]: "In her statement the patient said that this occurred at the end of the consultation in which the respondent referred her to Dr Smith. In her evidence she said that this occurred in late March or early April. The patient made this estimate of when the respondent kissed her by reference to when he asked her on a date. While there was a degree of imprecision about when this event occurred, the Tribunal accepts the patient that it did happen at a consultation in the period between January and March 2004."

As to the period from March to August 2004, the Tribunal accepted the plaintiff's version that she continued to visit the defendant at the Wyoming Medical Centre. I quote from paragraphs [88] to [94]: "The patient said that instead of going out together on dates she would visit the respondent in his surgery at the medical centre, where they would talk about their lives and interests. The patient said that on some of those visits the respondent to attend to routine medical matters for her; for example, the removal of a corn from her toe, and he examined her spine in July 2004, after she told him that she had scoliosis. Although the patient and the respondent did not have a sexual relationship at this time, she said that they would hug and the respondent would sometimes kiss her on the cheek. She said that she visited the respondent at the surgery about two or three times in this period.

The pattern and frequency of the telephone calls between the respondent and the patient, from February and continuing through to April, do not support his account, but lend credibility to the patient's account of the relationship being one of 'courtship'. The Tribunal does not accept the respondent's suggestion that the long, late-night call to the patient on 12 February was about the consultation of 9 February, nor that the call of 25 March, of 18 minutes, was an attempt to persuade her not to try to make appointments to see him.

The Tribunal accepts that from the consultations in January to March a romantic relationship developed between the patient and the respondent. That relationship continued after the last recorded consultation in March 2004.

The plaintiff's credibility is not without difficulty, as has already been discussed in these reasons. However, the Tribunal accepts her, that the relationship with the respondent continued in the way she described after March 2004, and finds that in those visits the respondent offered her medical treatment, as she described. The patient's account of being completely infatuated with the respondent from early 2004 was persuasive and was maintained throughout all of her statements and is supportive of her account of continuing to see the respondent when the circumstances allowed when she was at the surgery.

The Tribunal also finds persuasive her evidence that in this time she would only visit the respondent if she was not with her son, which is consistent with her visiting the respondent for romantic reasons. The Tribunal does not accept the respondent's evidence that he told the patient that the professional relationship was at an end in March and there was no relationship, either professional or romantic, between them in the period until August 2004."

As to the period after August 2004, the Tribunal determined that the defendant continued to treat the plaintiff and her son as patients. I quote from paragraphs [96] to [105]: "The patient alleges that during this period the respondent acted as her and her son's doctor. On 7 August the patient presented a prescription for Zoloft to a local chemist. It was written on a prescription pad of the respondent. The address printed on the top of the pad was for the Gateway Medical Centre, where the respondent worked before moving to Wyoming. The patient said that she wrote her name and address on the top of the prescription and the respondent filled in the details of the medication, the instructions and the dose, and signed it. The respondent denied that he completed the prescription. The Tribunal does not accept his denials.

The Tribunal is also of the view that the signature on the prescription bears a close resemblance to a prescription, admittedly signed by the respondent, that was in evidence before the Tribunal. The indications for dose and use on the prescription contain the usual medical shorthand. The Tribunal finds that the respondent did indeed write this prescription for the patient. This finding is supported by the respondent's evidence about how long he would have expected the patient's prescription for Zoloft to last and finds that based on that she would have required another prescription about that time.

It is improbable and not consistent with that that the patient would have written her name and address in her own hand on the top of the prescription and then forged the respondent's signature on the bottom and added the other information on the prescription.

It is the Tribunal's observation that the respondent frequently resorted to claiming or implying forgery of his signature to explain away documents inconsistent with his account of events. The Tribunal makes this finding, conscious that the patient, at first, when shown the prescription, did not recognise the handwriting as hers and then said it was her handwriting but was unable to remember the circumstances in which the prescription was written, although she said later that she could remember those circumstances.

The Tribunal also accepts the patient's account that she became very ill with tonsillitis soon after she and the respondent were living together and he gave her Klacid, K-L-A-C-I-D. In November 2004 the patient was very ill. She had lost a great deal of weight and was, according to the respondent, looking very unwell. She developed a serious outbreak of genital warts. The respondent agreed that he examined her and told her that, in his experience, it was of an extent usually associated with people who are receiving chemotherapy. The respondent wrote a referral for the plaintiff to a gynaecologist, Dr Caska, C-A-S-K-A. The respondent said that he wrote the referral on his home computer and gave it to the patient to take with her to the appointment.

The respondent paid for the patient's attendance on Dr Caska on 3 November. The respondent went to his consulting room and, from the patient's notes, faxed a copy of her most recent pap smear result to Dr Caska for his information, because it was relevant to Dr Caska's consideration of the plaintiff's condition. Despite the referral bearing the address of the medical centre, the letter of advice after that consultation was sent by Dr Caska to the respondent's home. The respondent said that he never received it, nor did he ask Dr Caska for a copy. He said that he did ask the patient what Dr Caska had recommended as treatment.

In all of the circumstances the Tribunal finds it improbable that the respondent did not receive a copy of the letter from Dr Caska. On 5 November the patient said that she went with the respondent to the medical centre and he drew blood from her and sent it to pathology for testing. She said that later that day he received the results over the telephone from the lab, and told her the results were normal. He denied that he arranged for the blood tests. The Tribunal is satisfied that the respondent did arrange for the plaintiff's blood to be tested, the results to be sent to him, and that he discussed them with her."

The respondent admitted that from time to time he examined the patient to determine whether this condition had subsided before they commenced a sexual relationship. Although these examinations might have occurred informally, to the extent that they were done outside his surgery, the Tribunal is, nonetheless, satisfied they were done in his capacity as the patient's general practitioner". 35. The Tribunal went on to make the following findings at [106] to [111]: "The Tribunal is satisfied that, from early 2005 until at least December 2004, the respondent was the patient's general practitioner. The Tribunal makes this finding notwithstanding the notes that indicate, on a few occasions, after first consulting the respondent, the patient saw another doctor at the medical centre. The patient regarded him as her general practitioner and he gave her every reason to believe that he was. The Tribunal also takes into account as persuasive that, in the time between August and December, there is no record that the patient or her son attended any general practitioner for treatment.

This is not consistent with the pattern of attendances for both the patient and particularly her son, as shown in the Medicare records. The Tribunal is satisfied that between April and August 2004 the respondent continued a romantic relationship with the patient that started when she began to consult him earlier that year. But she visited him at the medical centre to continue their relationship and from time to time the respondent treated her for medical conditions.

The Tribunal does not accept that the respondent took any steps to persuade the patient not to remain his patient and is satisfied that when the issue was raised or whether it was appropriate for her to remain his patient in light in their relationship, it was the respondent who suggested that he could continue to offer her treatment but not have her sign the medical assignment form, to keep the fact of his treatment of her hidden. The Tribunal finds that shortly after commencing a sexual relationship in August 2004 the patient and the respondent spent extended periods in each other's houses.

The Tribunal is satisfied that the patient spent extended periods of time at the respondent's house at North Avoca in August and remained there until about late October 2004 when the respondent moved into the patient's house where he spent extended periods of time. The Tribunal finds that the treatment offered to the patient in November 2004, rather than being the respondent doing the patient a favour of making a referral, was acting as her general practitioner. The Tribunal is satisfied that during the period from January until December 2004, the respondent was the patient's doctor and in that period he carried on an inappropriate personal relationship with her."

I take into account all of the findings and the reasons of the Medical Tribunal.

Liability 37. I deal firstly with the allegation of breach of duty by the defendant to the plaintiff in his capacity as a doctor, that duty being owed to her as his patient. I am satisfied, as was the Medical Tribunal, that the sexual relationship was a product of the doctor patient relationship. In this regard, I was not persuaded that the plaintiff and the defendant met prior to January 2004 at a night club or otherwise, or that there was any relationship between them before that time, let alone a sexual relationship. But even if they had previously met, in my view that would have not helped the defendant. If anything, it makes his conduct in seeing the plaintiff and treating her in January 2004 so much the worse.

I find that the plaintiff first met the defendant at his surgery in early 2004 and that in the first series of the five or six consultations that were recorded by Medicare, the courtship began, that being the courtship that led ultimately to the sexual relationship. I am satisfied, therefore, that the plaintiff's attachment to the defendant commenced at a time when the doctor patient relationship existed. As Dr Sandra Smith put it, the sexual relationship was a product of the medical relationship without which it would never have commenced or developed.

The defendant well knew that the plaintiff was emotionally and psychiatrically vulnerable. It was that susceptibility that led to the trust placed I in the defendant by the plaintiff that was subsequently abused and ultimately broken. I am also satisfied that the defendant continued to see the plaintiff after the six recorded consultations.

I am satisfied, as was the Medical Tribunal that he continued to court the plaintiff and saw her in his surgery from time to time but did not charge the consultations to Medicare because it was his intention to conceal the developing relationship, knowing it was inappropriate.

I am further satisfied that the defendant continued to treat the plaintiff as a medical practitioner even after their relationship became sexual from August 2004. There is evidence of him referring her to a gynaecologist but there is other evidence of him advising her as to her psychiatric problems. Such activity was entirely inappropriate having regard to the personal relationship which was by then full blown.

For all these reasons, I am satisfied that the defendant breached his duty of care to the plaintiff as a medical practitioner and abused the confidence and trust placed in him by the plaintiff as her doctor by which she then entered into the sexual relationship. It would not otherwise have been entered into.

For reasons to which I will come it is not necessary for me to definitively determine the allegations of assault. However, for my part I was not persuaded that the plaintiff was not, by reason of her mental condition, incapable of true consent to the sexual relationship. Whilst I accept that she was vulnerable and that her susceptibility enabled the relationship to commence and develop and culminate in sexual activity, in my view the plaintiff voluntarily entered into that relationship of her own free will.

The more difficult decision or issue for my determination, which I now turn to consider, is that of causation. What precisely is it that the breach of duty by the defendant in his capacity as a medical practitioner caused by way of injury, loss or damage to the plaintiff? The defendant's case is that the plaintiff's psychiatric condition is not a result of his breach of duty, rather it was caused by her pre-existing psychiatric condition and/or was triggered not by the breakdown in their relationship but by the fires involving her car and her house. There is no evidence to support a finding that these events were perpetrated by or at the direction of the defendant. What is clear however is that as a result of the relationship the plaintiff was vulnerable and susceptible to stressors.

The resolution of these issues requires a consideration of the expert medical opinion to which I will now briefly turn.

The expert medical evidence 46. There was competing medical evidence as to the nature of the plaintiff's psychiatric state and the cause of it. The defendant relied in particular on the evidence of Dr Klaas Akkerman, a consultant psychiatrist: firstly, in his written report dated 21 January 2008 and, subsequently, by way of telephone before this court. The doctor's opinion, stated in a nutshell, is that the plaintiff suffers from a borderline personality disorder which was a pre-existing condition unrelated to her relationship with the defendant. Upon questioning, however, the evidence upon which he based that opinion was demonstrated to be superficial and flawed.

Dr Akkerman saw the plaintiff for less than half an hour in his consultation and indeed saw no documentary material as to her prior medical history. I was unimpressed with his evidence. His opinion was, in my view, not well informed and was based on factual material not established or supported by the objective evidence. When pressed, Dr Akkerman conceded that the borderline personality disorder he diagnosed could well have been previously quiescent but activated by reason of the events surrounding her relationship with Dr Fairbrother. He was dismissive of her pre-existing obsessive compulsive disorder on the grounds that appeared to me flimsy and uninformed.

Overall, I preferred the evidence of the plaintiff's treating psychiatrist Dr Sandra Smith who has been treating Ms Lee since at least 2000 and in my view is in a much better position to observe the plaintiff before and after the relationship with the defendant.

Findings on the medical evidence 49. The starting point for me is the evidence that prior to meeting the defendant, the plaintiff was relatively stable emotionally. True, she had broken up from her previous partner, Dean, who is the father of Zac, but she was clearly coping with that. Her obsessive compulsive disorder was under control and she was no longer consulting Dr Smith. She was coping as a single mother bringing up her son and had undertaken two years study at university. Following the break up of the relationship some 12 months later she was a mentally diminished woman. She had lost weight, she was frightened, she was consuming illicit recreational drugs and she was emotionally unstable.

The defendant's case is that all of these problems are attributable to his refusal to marry her. The medical evidence however suggests otherwise. Whilst I am not satisfied that evidence supports a finding of post-traumatic stress syndrome, it is evident to me that the plaintiff suffered an adjustment disorder which is directly attributable to the breakdown in her relationship with the defendant. The causative connection between the development of her adjustment disorder and the defendant's breach of duty is that she would not have entered the relationship and developed the trust and confidence in him that she did if he had not been treating her medically. Having improperly entered the relationship and then ending it, the defendant is causally responsible for the consequences.

I am, therefore, satisfied that there is a sufficient causal connection between the defendant's breach of duty as a medical practitioner owed to the plaintiff as his patient and her psychological deterioration after the relationship broke down. I am comfortably satisfied that the plaintiff's deteriorated medical condition was caused by her relationship with the defendant. More importantly, I am satisfied that there is a sufficient causal connection between her condition and the defendant's breach of duty owed to the plaintiff as a medical practitioner.

For these reasons I find that the plaintiff has succeeded in demonstrating injury, loss and damage caused by the defendant's breach of duty, entitling her to a verdict for damages to be assessed.

The Civil Liability Act 2002 (NSW) 53. It is necessary that I first determine the applicability or otherwise of the Civil Liability Act 2002 (NSW) which contains various provisions regulating and restricting awards of damages to plaintiffs in cases to which the Act applies. Section 3B(1) provides:

"The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

(a) Civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct - the whole Act except Part 7 … in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death." 54. The issue here is whether the phrase "other sexual misconduct" applies to the conduct of this defendant in the context of this plaintiff's cause of action against him.

Counsel for the plaintiff informed me that this is a provision yet to be considered by the superior courts, and that there is no case law to guide my determination on the question. In my view, the defendant's conduct falls within the phrase "other sexual misconduct". It is clear that the legislature was intending to provide for conduct not amounting to criminal conduct. In my view, professional misconduct by a doctor involving sexual activity with a patient is such a circumstance. I find, therefore, that the defendant's conduct falls within section 3B(1) of that Act, with the consequence that the Act does not apply. Damages, therefore, fall to be assessed under the general law, without restriction.

The plaintiff's claim for damages is made under various heads, which I will consider in due course. Before doing so, however, it is appropriate to consider some aspects of the plaintiff's evidence and conduct.

Whatever view one might take of the defendant in these proceedings, it is fair to say that the Medical Tribunal did not form a particularly favourable view of the plaintiff either. I quote from the Tribunal's reasons at paragraphs [55] - [58]: "It is apt too to note that in not accepting the respondent's evidence the Tribunal does not necessarily thus accept without question the account of the patient. The relationship took a toll on her. In her own words, at the end of the relationship, she was, 'Angry about the relationship and physically and emotionally exhausted.' Both her physical and psychiatric health had diminished, and in March 2005 she was hospitalised with what was believed to be drug-induced psychosis … there was considerable acrimony between the patient and the respondent.

She accused him of setting fire to her house and car, and as a result he was arrested. He told police that she was delusional and suggested that she might have set the fire in her house herself. The respondent transferred $10,000 into her bank account and immediately attempted to have the transaction reversed, claiming it was an error, and when that was unsuccessful sued her for the return of the money while bitterness and acrimony do not dictate that a person's evidence will necessarily be untruthful, it may colour perception.

The Tribunal has borne this in mind when considering the patient's evidence. There were parts of the patient's evidence about which she appeared to be less certain than others, and parts where her account of events varied between her evidence to the Tribunal and her statements. She seemed keen at times to add unresponsive information to her answers, to the discredit of the respondent. The Tribunal has approached her evidence with some caution. However, in a number of instances her evidence is supported by objective evidence." Having observed the plaintiff myself in the witness box, these observations resonate.

There is also evidence that she was a person who had indulged in illicit drugs. It was her contention, however, that she stopped using marijuana when her son was born. She complains that she again started using these recreational drugs during her relationship with the defendant after they started to live together in August 2004. One of the complaints before the Medical Tribunal was that the defendant supplied her with these drugs, which included marijuana, endone, MS Contin and cocaine between August and December 2004. She likewise alleges that he supplied her with quantities of valium. These allegations were the subject of detailed evidence before the Medical Tribunal, none of which was presented to me. The Tribunal came to the following conclusions on this issue, at paragraphs [130] - [131]: "Given the seriousness of the allegations, the lack of any supporting objective evidence and the degree of confusion that attended the patient's evidence in regard to the valium, the Tribunal can make no finding that the respondent supplied the patient with those prescription drugs for her recreational use. As to the use of cocaine and marijuana, if the respondent and patient did use those drugs recreationally, it is not a matter that, in the view of the Tribunal, falls within the complaint as reflecting on the respondent's practice of medicine as alleged in the complaint.

The Tribunal declines to make the finding that he used or supplied cocaine to the patient. How the patient came into possession of the MS Contin is curious. It is a serious allegation to assert that a medical practitioner provide a narcotic analgesic to a person for other than therapeutic use. The Tribunal is unable to find to the requisite degree that the respondent gave the MS Contin to the patient for her to use as a recreational drug. The Tribunal finds that this particular is not established." 59. Given that the evidence before me was far less expansive, and I am left with the mere assertions of the plaintiff unsupported by any objective or corroborating evidence, I am not comfortably satisfied of the allegations in relation to the supply of drugs.

I take the same view as the Medical Tribunal; namely, that the issue of drug taking is unconnected with the practice of medicine, and if it occurred it was a private circumstance unconnected with the defendant's breach of his duty as a medical practitioner. Its only relevance to the present proceedings, in my view, is that it can be inferred that her drug taking was exacerbated as a result of the breakdown of the relationship, and this was more probably than not a contributing factor to her admission to the Mandala Psychiatric Unit.

Against this background, I turn to consider the various heads of damage claimed.

Out-of-pocket expenses 62. The plaintiff claims past out-of-pocket expenses of $28,044, being 228 consultations with Dr Smith at $123 per visit. I am satisfied that this was a reasonably necessary medical treatment, and the claim is allowed. There is no interest, in that these amounts were paid by Medicare, and as such there will be a refund required to be made in the event that the plaintiff does recover this amount from the defendant as a result of the judgment of this court.

Future medical treatment 63. The next head of damages claimed relates to future medical treatment. The plaintiff claims $45,507 calculated on the basis of psychiatric counselling by Dr Smith over the next five years. (The multiplier is 231.5 at a rate of $197 a visit.) The evidence as to future treatment was uncontroverted. Even Dr Akkerman agreed the plaintiff will need future psychiatric counselling.

The medical evidence taken as a whole, however, indicated the strong probability that with proper care and treatment the plaintiff will revert to her former self within five years. I am satisfied, therefore, that the claim for future medical treatment is made out.

Economic loss 65. The plaintiff claims damages for economic loss. The schedule of damages submitted on her behalf includes a figure of $80,000. In my view, however, an award of that magnitude would not reflect the reality, having regard in particular to her past record as an earner. Her periods of employment were intermittent and inconsistent. While she did spend some time at university and has stated a desire to complete an arts degree and re-enter the workforce, she did not convince me that she has a strong work ethic or an ambition to be gainfully employed in any serious way.

The highest her claim might be put is that her capacity to work has been diminished by reason of a deferral of her capacity to enter the workforce by reason of her adjustment disorder. In my view, that diminution is of a low degree. The appropriate way to compensate her for this diminution is by the award of a buffer, which I assess at $25,000, inclusive of occupational superannuation.

Non-economic loss 67. It was submitted that an award of general damages of $120,000 would be appropriate.

I accept that the plaintiff has had a psychiatric condition, from which she has suffered since early 2005 to the present time. This has affected her general enjoyment of life and other amenities, and in particular has affected her ability to have meaningful social relationships, and she has an aversion to general practitioners which affects her ability to obtain appropriate medical advice for herself and her son.

It is difficult, however, in the present case, to separate out the psychiatric components of her situation that can be attributed to the defendant's breach of his duty to her as a doctor and those that stem from other contributing factors such as her pre-existing obsessive compulsive disorder, her drug-taking and what might neutrally be described as her fury over the failure of the relationship; likewise, any effects that may be affecting her as result of the two fires.

One thing does seem clear, however: that the obsessive compulsive disorder was substantially under control at the time she met the defendant, and any aggravation of that disorder can only have been of a temporary and minor aggravating nature.

I am unable to take into account the effects of the two fires in a direct way, as I have said, because although she believes these events were perpetrated by or at the instigation of the defendant, that is simply not supported by any evidence before me.

I am, however, able to take some account of those events, in the sense that they occurred when she was in a fragile emotional state, and these no doubt exacerbated that condition.

As to the drug-taking, I only take account of it in the very limited way that I have already described, but I do take account of her period of time in the Mandala Psychiatric Unit, as I am satisfied that the drug-induced psychosis for which she was treated at that institution was contributed to by the termination of the relationship with the defendant. I am satisfied, however, that this was also of a temporary and short duration, and that there are no persisting consequences from the drug-induced psychosis.

Having regard to all these matters, I assess general damages to the past at $30,000, inclusive of interest.

As to the future, that seems much brighter. The prognosis is for substantial recovery. Dr Smith considers that this will be enhanced by putting this litigation behind her. The prognosis for that substantial recovery is that it will occur within five years.

I am also required to take into account her susceptibility to psychiatric episodes from other future unrelated stressors by reason of her pre-existing fragile psychiatric temperament: Qantas Airways v Lisica [2007] NSWCA 371; see also Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [7]. I assess the prospects of these considerations as moderately likely.

I am also required to discount the award for general vicissitudes. However, given the short duration of the period for which general damages, or the significant aspect of the general damages, is to be awarded, that discount should not be significant. Taking all these factors into account, I assess future general damages at $20,000.

Exemplary and aggravated damages 78. The plaintiff claims exemplary and aggravated damages, as she is entitled to do, on the basis that the award of such damages is not, in this case, precluded by the Civil Liability Act, 2002.

So far as exemplary damages are concerned, the basis for an award of such damages is, as described by the High Court in Lamb v Cotogno [1987] HCA 47. Such damages are awarded to register the seriousness of the defendant's misconduct, to punish and deter and to assuage any urge for revenge.

In my view, these considerations have already been met and satisfied by the striking off of the defendant by the Medical Board. I am not, therefore, satisfied that there is a need for additional damages to be awarded by this court for such considerations.

The claim for aggravated damages, however, falls into a different category. It was submitted on behalf of the plaintiff that I should award her significant aggravated damages in the order of $20,000.

Such damages may be awarded where the defendant has acted "in contumelious disregard of the plaintiff's rights", or in an insulting or high-handed way, or with malice. It is required that the plaintiff's suffering must have been increased. In other words, the court must be careful not to award such damages for matters already encompassed by the award of compensatory damages. The court is to take account of any increased indignity or outrage to the plaintiff's feelings. This means that the award of general damages might be increased, having regard to such factors.

I am satisfied that the plaintiff did suffer over and above the award of compensatory damages, having regard to additional factors, albeit to a limited extent. The factors I do take into account are the defendant's continuing lack of remorse, aggressively stated in the final submissions to this court, and his continuing lack of insight into the appropriate nature of his conduct in forming a sexual relationship with the plaintiff while she was his patient. For this I award a further $10,000 by way of aggravated damages.

Total damages 84. The total damages I have awarded are, in summary, in round figures: Past out-of-pocket expenses $28,000 Future medical expenses $45,500 Economic loss $25,000 General damages $50,000 Aggravated damages $10,000 Total damages $153,500

I enter a verdict for the plaintiff in that sum and I direct the entry of judgment in her favour in the sum of $153,500.

Costs should follow the event in the absence of any other application for a different order. I therefore order the defendant to pay the plaintiff's costs, to be assessed on the ordinary basis.

(There followed a discussion and submissions relating to an application by the plaintiff for indemnity costs from 1 April 2008.)

I am satisfied that the plaintiff made an offer of compromise in the sum of $120,000.00, left open until 1 April 2008. The plaintiff has succeeded to an extent more favourable than the offer of compromise. For the sake of completeness, I am satisfied that the offer of compromise constituted a genuine offer of compromise, involved a compromise, and there is no evidence that the defendant's failure to accept that offer could be described as reasonable in the circumstances. For these reasons I vary my order as to costs, so as to require the costs payable by the defendant to the plaintiff to be assessed on an indemnity basis, as from 1 April 2008.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: Lee v Fairbrother [2009] NSWDC 192

Qantas Airways v Lisica [2007] NSWCA 371 CASES CITED: Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [7] Lamb v Cotogno [1987] HCA 47

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