Mann v Capital Territory Health Commission

Dr. Arnold Mann, a specialist medical practitioner employed by the Capital Territory Health Commission, sued the Commission in the Supreme Court of the Australian Capital Territory for declaratory and injunctive relief and for damages. He alleged various breaches of his contract of employment, the gravamen of his complaint being that the Commission had failed properly and adequately to employ his services in a senior capacity as a general surgeon, thus depriving him of the opportunity of being adequately occupied as a senior specialist in general surgery. He claimed common law damages for breach of contract.

The action was tried before Connor A.C.J., who gave judgment for the defendant Commission. The appellant appealed to the Federal Court of Australia. That appeal was heard by a Full Court (Fox, Kelly and Sheppard JJ.) and was dismissed. Dr. Mann thereupon instituted an appeal to this Court, to the competency of which the Commission has objected, effectively upon the ground that the judgment appealed from was not given "in any proceedings in which the matter in issue amounts to or is of the value of $20,000 or upwards or which involve directly or indirectly a claim, demand or question to or respecting any property or any civil right amounting to or of the value of $20,000 or upwards" - Federal Court of Australia Act 1976 Cth, s. 33 (4) (b).

In his writ Dr. Mann did not claim any specific sum by way of damages but at trial it was contended that he was entitled to an award of damages in excess of $90,000. Connor A.C.J. held that it was an implied term of Dr. Mann's employment that he would be furnished with surgical work suitable in quantity and quality to his status as a senior and experienced surgeon. His Honour found that Dr. Mann was not in fact performing a suitable quantity of work of that quality but was not satisfied that this was due to the Commission's failure to furnish it. Dr. Mann had, he said, not persuaded him of any such failure; unsatisfactory quantity and quality of work in fact available to Dr. Mann might, he thought, be attributable to factors having nothing to do with the Commission. His Honour accordingly entered judgment for the defendant and did not have any occasion to pass upon the matter of damages.

On appeal Fox and Kelly JJ. concluded in their joint judgment that no such implication of a term should be made and, in the absence of any express term to the like effect, they dismissed the appeal. Their joint judgment is silent as to damages. The third member of the Court, Sheppard J., delivered a separate judgment in which he concluded that it was an express term of the contract that the Commission would furnish Dr. Mann with surgical work of a kind and quantity suitable for a senior and experienced general surgeon. His Honour found that Dr. Mann did not in fact enjoy that kind or quantity of surgical work and that this was due to the Commission's breach of contract; he would accordingly have allowed the appeal. Because his was a minority view, his Honour did not deal in detail with the matter of damages but his brief discussion of the matter is valuable, and this not only because it represents the only consideration of it in this case to date.

His Honour concluded that Dr. Mann could, in his present action, recover only in respect of loss suffered either up to the date of issue of the writ or, at latest, until the date of assessment of damages - see Rules of the Supreme Court of the Australian Capital Territory, O. 38, r. 29.

His Honour was, with respect, clearly right in this conclusion. The plaintiff's case was a continuing breach day by day of a continuing contractual obligation: seeNational Coal Board v. Galley [1] . In the words of McGregor on Damages, 14th ed. (1980), par. 294, it is a case of "a continuing wrong the further causes of action lie still in the future and, therefore, it is impossible to bring an action to recover for prospective loss even if it is foreseeable".

1. [1958] 1 W.L.R. 16, at p. 26; [1958] 1 All E.R. 91, at p. 101.

The Commission's failure day after day to supply to Dr. Mann the contracted-for quantity of work would, if established and shown to be in breach of contract, only entitle him to damages in respect of such loss or damage as he has already incurred. To say this is not, of course, to preclude the need to look to the future when there is a question of damage already incurred only manifesting itself in the future: if, for instance, it could be shown that Dr. Mann had already suffered a loss of skill and, hence, a present loss of earning capacity which would result in losses of earnings in the future, those losses would properly be reflected in the damages to be awarded. What cannot be recovered is compensation for injury not yet suffered but only apprehended. This is because such damage is not the product of any present or past breach of contract; if it be incurred in the future it will be the product of future breaches, should they occur, and not of what has been experienced to date.

That this should be the position is a consequence of the somewhat unusual situation of the parties to this action: unusual because despite the alleged wrongful and damaging conduct of the Commission, Dr. Mann still remains in its service some five years after that conduct began to affect him and still, day by day, is subject to that conduct. That conduct may at any time in the future cease, thereby averting further damage. If it does not, it would, all else being equal, continuously give rise to new causes of action which if pursued would entitle Dr. Mann to compensatory damages for whatever losses he could prove that he had thereby incurred. Of course, all else is not in fact equal: as things at present stand there is a finding adverse to him that the term on which he sought to rely is not to be implied in the contract and he would no doubt be bound by that finding in any further action against the Commission. But that is irrelevant to the question of the extent of damages recoverable in the present action, upon which the present objection to competence of the appeal turns. It will only be in respect of the causes of action now sued upon that damages can be recovered and they relate only to the breaches complained of in the present action.

Once this is appreciated, it is apparent that there can here be no question of any likely entitlement to damages in excess of $20,000. Although we do not have before us the transcript of the evidence given before the primary judge, we do know from counsel the heads of damage sought to be recovered and can glean from the judgments in the courts below a good deal about the nature and circumstances of the case. Sheppard J. commented in his judgment upon "the meagreness of the evidence" which had been led at the trial on the question of damages. He said

There is evidence, although scant, of some hurt to the appellant's feelings. More importantly, although the evidence plainly establishes that the appellant has not had a sufficient flow of work to maintain a high standard of professional competence, there is no evidence of what the particular consequences to him of that situation have been. In those circumstances it would not seem to me that the case is one for the award of a figure anywhere near the very substantial sum for which senior counsel for the appellant contended. With this we would agree. Four heads of damage were said to be recoverable. The first was for loss of skill due to insufficient opportunity to perform the requisite type of operative work. Counsel for Dr. Mann said of this, "it may be that in the course of the remaining fifteen years or so of his employment his skills will be reduced to the extent that he is unable to fulfil the function of a senior experienced general surgeon and could be amenable to dismissal". There is no evidence that any critical reduction of skill has yet occurred and hence no damages can in this action be recovered under this head.

The second head of damages was similar; a time might come, it was said, when loss of skill might compel Dr. Mann to resign. Again the answer that there is no evidence that anything like such a situation has yet emerged.

The third head was described as involving "a lack of opportunity and development in his career"; Dr. Mann was being "cut off from the opportunities of becoming a better and justly renowned surgeon". It was made clear however, that this head of damages did no involve any claimed loss of earnings, present or future. Not only in such a head of damages difficult to evaluate, it also depends upon what happens in the future: whether in fact Dr. Mann continues to be deprived of the necessary surgical experience. If he does not, it would seem to involve little or no present claim to damages. Since all that can be claimed in the present action is damage already incurred, this head of damage can on no view be substantial.

The fourth and last head of damages claimed was described as damages for "depression, distress, vexation, frustration and disappointment" and reference was made to Jarvis v. Swans Tours Ltd. [2] and to Cox v. Philips Industries Ltd. [3] . It is unnecessary to examine this head of damage in any detail: it is enough to say that if it be recoverable in an action such as this its quantum would not go far towards the critical sum of $20,000.

1. [1973] Q.B. 233. 2. [1976] 1 W.L.R. 638; [1976] 3 All E.R. 161.

It follows that nothing has been made out which would satisfy any of the various formulations by which this Court has, over the years, described circumstances which meet the requirements of s. 33 (4) (b) of the Federal Court of Australia Act or its equivalents in other legislation. We would accordingly uphold this objection to competency of the appeal.

We heard counsel on the question of the grant, in the alternative, of special leave to appeal and have concluded that this is not a case for special leave. Dr. Mann's application for special leave is refused accordingly.