Nathan Glenn Wortley v Health Care Complaints Commission

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20507/99 - Nathan Glenn Wortley v Health Care Complaints Commission

1 HIS HONOUR: On Thursday last the Court made an order for the separate decision of a preliminary question of law, namely, whether the facts pleaded in the amended Statement of Claim filed by the plaintiff on 6 November 2000 disclose any good cause of action. The procedural history which forms the background to that question is summarised in an interlocutory judgment delivered on Thursday last and refusing the plaintiff leave to make further amendments of substance to his amended Statement of Claim. It is unnecessary to repeat now the details of that procedural background. 2 Mr. Wortley, the plaintiff, has been conducting by himself his proceedings against the defendant. In connection with the present preliminary question of law, an attempt was made by the Court to have some proper professional assistance made available to Mr. Wortley, the Court utilising in that respect the procedure that is now available pursuant to SCR Part 66. Those efforts did in fact procure for Mr. Wortley the assistance of professional advice from M/s Higgins of Counsel to whom the Court is indebted on that account. Ultimately, Mr. Wortley preferred to represent himself at the hearing of argument upon the preliminary point. 3 The amended Statement of Claim which gives rise to the preliminary question of law was itself drawn by Mr. Wortley, and seems to have been drawn without professional legal advice and assistance. The pleading which has resulted comprises thirty-three numbered paragraphs. Generally speaking the draftsmanship of the pleading is unfocussed and imprecise, characteristics which make it more difficult than might otherwise have been the case to distil fairly quite what cause(s) of action the pleading is intended to put forward. 4 Since it is impossible, in any practical sense, to summarise such a pleading, I attach hereto a copy of the complete pleading as filed. 5 One thing that can be said at once about the amended Statement of Claim is that it is intended to originate in the Court a claim for damages. Indeed, on Wednesday last, when Mr. Wortley gave a general outline of his intended case, he indicated in terms that he sought not merely compensatory damages, but punitive or exemplary damages as well. 6 It is important to establish at the outset that the true purport of the amended Statement of Claim is to recover damages in an action at law. It is important to do that because a substantial part of the pleading is cast in terms that are not appropriate to an action at law for damages, although they would be appropriate to an application for judicial review, assuming that such a remedy would lie in the present case, a matter as to which I express no opinion. 7 An attempt to spell out of the amended Statement of Claim a definition, cast in conventional pleading terms, of Mr. Wortley's intended cause(s) of action at law, can be introduced conveniently by the following statements of principle taken from the speech of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 730,731: "The question is whether, if Parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority's performance or non-performance of that function has a right of action in damages against the authority. It is important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages. A claim for damages must be based on a private law cause of action. The distinction is important because a number of earlier cases (particularly in the field of education) were concerned with the enforcement by declaration and injunction of what would now be called public law duties…………………………. Private law claims for damages can be classified into four different categories, viz: (A) actions for breach of statutory duty simpliciter (i.e. irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of a statutory duty or from the performance of it; (D) misfeasance in public office, i.e. the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful." 8 The application in the present case of that approach indicates, in my opinion, intended causes of action falling within each of Lord Browne-Wilkinson's categories; (A), (B) and (C).

As to the Cause of Action Pleaded in Terms of Category (A) 9 The relevant principles are, once again, stated conveniently, and as follows, in Lord Browne-Wilkinson's speech at 731, 732: "This category comprises those cases where the statement of claim alleges simply (a) the statutory duty, (b) a breach of that duty, causing (c) damage to the plaintiff. The cause of action depends neither on proof of any breach of the plaintiff's common law rights nor on any allegation of carelessness by the defendant. The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficult. The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action: ……………. . However the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy…………………………. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general. ………………… The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions." 10 Relevant for present purposes are the provisions of the Health Care Complaints Act 1993 (NSW), ["the Act"]. It is necessary now to consider various of the particular provisions of the Act, doing so in the light of the principles above summarised. 11 The long title of the Act is: "An Act to provide for the making, conciliation, investigation and prosecution of health care complaints; to constitute a joint committee of members of Parliament, the Health Care Complaints Commission and the Health Conciliation Registry and to specify their functions; to amend certain Acts; and for other purposes." 12 Section 3 of the Act defines as follows the objects of the legislation: "(a) to facilitate the maintenance of standards of health services in New South Wales, (b) to promote the rights of clients in the New South Wales health system by providing clear and easily accessible mechanisms for the resolution of complaints, (c) to facilitate the dissemination of information about clients' rights throughout the health system, (d) to provide an independent mechanism for assessing whether the prosecution of disciplinary action should be taken against health practitioners who are registered under health registration Acts." 13 Part 2 of the Act is headed: "Complaints". The Part contains eight Divisions, and comprises sections commencing with section 7 and concluding with section 58. What is thus established is a very precise, formal structure for the making and handling of complaints against health practitioners, being natural persons who provide a health service whether or not, in a particular case, the individual health practitioner is registered under a health registration Act. A health registration Act is any one of eleven nominated statutes, each of which deals with a discrete category of health practitioner, e.g. a medical practitioner; a dentist; a chiropractor, and the like. So far as is relevant for present purposes, the statutory scheme thus established by Part 2 of the Act has the following particular features:

(1) A complaint may only be made to the defendant Commission by a person who falls within any one of seven categories nominated in section 8 of the Act. It is not disputed that Mr. Wortley, the present plaintiff, comes within section 8.

(2) A complaint may only be made about certain matters as defined in section 7 of the Act. It is not disputed that the complaint made by Mr. Wortley to the defendant Commission, which complaint lies at the heart of his present proceedings in this Court, satisfies the requirements of section 7.

(3) Section 9 of the Act provides for certain formalities as to the making of a complaint. It is not disputed that Mr. Wortley, when he made his relevant complaint to the defendant Commission, satisfied the requirements of section 9.

(4) The nature of Mr. Wortley's complaint to the defendant Commission was such as to require the Commission, having received the complaint, to liaise in the manner provided by Division 2 of Part 2 with the NSW Medical Board. It is not disputed that the defendant Commission complied with its statutory obligation thus to liaise.

(5) Division 4 of Part 2 of the Act deals with what is described in the heading to the Division as: "Assessment of complaints" . Fundamental to Mr. Wortley's current proceedings against the defendant Commission are allegations of various breaches by the Commission of the statutory duties of assessment that are laid upon it by Division 4.

(6) Section 19 of the Act, so far as is at present relevant, requires the defendant Commission, upon receipt by it of a complaint, to assess the complaint. The purpose of the assessment is precisely defined by section 20 of the Act as being : "……………for the purpose of deciding whether: · the complaint should be investigated; · the complaint should be conciliated; · the complaint should be referred to the Director-General in according with section 25; · the complaint should be referred to another person or body for investigation in accordance with section 26; · the Commission should decline to entertain the complaint."

(7) The assessment of a complaint for the purpose of deciding whether the complaint should be investigated is amplified by the provisions of section 23 of the Act. So far as is now relevant, section 23 provides: "(1) The Commission must investigate a complaint: (a) if,…………….., the appropriate registration authority is of the opinion that the complaint should be investigated, or (b) if, following assessment of the complaint, it appears to the Commission that the complaint: (i) raises a significant issue of public health or safety, or (ii) raises a significant question as to the appropriate care or treatment of a client by a health service provider, or (iii) provides grounds for disciplinary action against a health practitioner, or (iv) involves gross negligence on the part of a health practitioner."

(8) Section 27(1) provides for the discretionary discontinuance by the Commission of any further dealing by it with a complaint which it has assessed as being, so far as is at present relevant, not such a complaint as warrants either conciliation or investigation. Section 27(2) leaves it open to the Commission to discontinue dealing with a complaint on any other appropriate ground, notwithstanding that it is not a ground specified in such -section (1). Section 27(3) requires that the Commission not discontinue dealing with a complaint "if it appears to the Commission that the complaint ……………raises a significant issue of public health or safety" . Section 27(4) effects the formal termination of a complaint with which the Commission decides to discontinue dealing.

(9) Division 5 of Part 2 of the Act deals, according to the heading of the Division with: "Investigation of complaints" . The purpose of investigating a particular complaint is defined by section 29(1) of the Act as being: "………….. the purpose of obtaining information concerning the matter complained of and to determine what action should be taken in respect of the complaint" .

(10) Division 6 of Part 2 of the Act deals, according to the heading of the Division, with: "Outcomes of investigations into health practitioners" . Section 39 provides that the Commission, having investigated a complaint against a health practitioner, must , (my emphasis), do one or more of the following: (a) prosecute the complaint as a complainant before a disciplinary body, (b) intervene in any proceedings that may be taken before a disciplinary body, (c) refer the complaint to the appropriate registration authority (if any) with a recommendation as to any disciplinary action the Commission considers appropriate in respect of the complaint, (d) make comments to the health practitioner on the matter the subject of the complaint, (e) terminate the matter, (f) refer the matter the subject of the complaint to the Director of Public Prosecutions."

The Commission is required to consult with the appropriate Registration authority before deciding what action to take. (11) Of the remaining provisions of the Act, it is appropriate to note generally that Part 3 of the Act empowers the Commission to conduct investigations other than investigations into the conduct of a particular health practitioner; to note that Part 4 of the Act contains elaborate provisions for the constitution and empowering of a Parliamentary Joint Committee having the function, put briefly, of overseeing the operations of the defendant Commission to the end of ensuring that the Act operates according to the legislative intent; and to note that Part 5 of the Act constitutes the defendant Commission as a statutory body representing the Crown; provides in the usual way for the composition and day-to-day operation of the Commission; and defines the functions of the Commission in terms of which it is sufficient for present purposes to say that they mirror effectively the particular statutory scheme as I have earlier herein summarised it.

(12) Part 7 of the Act comprises a number of miscellaneous provisions of which the only one immediately relevant if section 96 which provides as follows: "A matter or thing done or omitted by a person, being the Commissioner, an officer of the Commission, the Registrar, a conciliator or a person employed in the Registry does not, if the matter or thing was done or omitted in good faith for the purpose of executing this Act, subject the person personally to any action, liability, claim or demand." 14 In my opinion, a fair reading of the entirety of the statutory scheme for which the Act makes provision indicates that the Act falls precisely within that category of "regulatory or welfare legislation affecting a particular area of activity" of which Lord Browne-Wilkinson concluded, in the passages earlier herein cited, that "the legislation is not to be treated as being past for the benefit of those individuals ……………(affected in particular by the relevant activity)…………but for the benefit of society in general". 15 I have come, therefore, to the conclusion that the plaintiff's amended Statement of Claim in so far as it propounds a claim at law based upon the breach simpliciter by the defendant Commission of its statutory duties under the Act, does not disclose a good cause of action.

As to the Cause of Action Pleaded in Terms of Category (B) 16 It is, yet again, convenient to quote from Lord Browne-Wilkinson's speech at 732 - 735: "This category comprises those cases in which the plaintiff alleges (a) the statutory duty and (b) the 'negligent' breach of that duty but does not allege that the defendant was under a common law duty of care to the plaintiff. It is the use of the word 'negligent' in this context which gives rise to confusion: it is sometimes used to connote mere carelessness (there being no common law duty of care) and sometimes to import the concept of a common law duty of care. In my judgment it is important in considering the authorities to distinguish between the two concepts: as will appear, in my view the careless performance of a statutory duty does not in itself give rise to any cause of action in the absence of either a statutory right of action (Category (A) above) or a common law duty of care (Category (C) below)." 17 His Lordship then canvasses the relevant authorities and expresses as follows his ultimate conclusion: "In my judgment the correct view is that in order to found a cause of action flowing from the careless exercise of statutory powers or duties, the plaintiff has to show that the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty is not sufficient." 18 In my opinion it follows necessarily that the plaintiff's amended Statement of Claim in so far as it is to be understood as pleading a "mere assertion of the careless exercise of a statutory power or duty", does not disclose a good cause of action.

As to the Cause of Action Pleaded in Category (C) 19 The general concepts are expressed by Lord Browne-Wilkinson as follows at 735: "In this category, the claim alleges either that a statutory duty gives rise to a common law duty of care owed to the plaintiff by the defendant to do or refrain from doing a particular act or (more often) that in the course of carrying out a statutory duty the defendant has brought about such a relationship between himself and the plaintiff as to give rise to a duty of care at common law. A further variant is a claim by the plaintiff that, whether or not the authority is itself under a duty of care to the plaintiff, its servant in the course of performing the statutory function was under a common law duty of care for breach of which the authority is vicariously liable." 20 Lord Browne-Wilkinson, in his Lordship's subsequent discussion of these general concepts, gives extended consideration to the justiciability at all of these types of claim. This notion of justiciability entails difficult questions of legal theory. In the circumstances of the present case, I think that it is more convenient to assume in the plaintiff's favour that his claims, in so far as they are ordinary common law claims involving allegations of ordinary common law negligence, are in principle at least justiciable. If that be the case, then the sustainability of the claims depends upon the application of principles which are explained as follows by Lord Browne-Wilkinson at 739: "If the plaintiff's complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in the practical manner in which that act has been performed …………………….. the question whether or not there is a common law duty of care falls to be decided by applying the usual principles, i.e. those laid down in Caparo Industries Plc v Dickman [1990] 2 AC 605, 617-618. Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendant sufficiently proximate? Is it just and reasonable to impose a duty of care? ………………………. . However the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done. …………………….. In my judgment a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance of the local authority of its statutory duties." 21 It is convenient to deal at this point of the present discussion with the plaintiff's claims in so far as they rest upon allegations made, not against the defendant Commission as such, but against named servants of the Commission. There are two such individuals in respect of whom the plaintiff entertains a burning sense of grievance, and as to each of whom he wishes to allege significant derelictions of duty. One of those two named individuals furnished to the delegate of the Commission, who had been given the task of assessing the plaintiff's complaint, a report, the correctness of the medical analysis in which the plaintiff strongly disputes. The second named individual was the person so delegated by the Commission to assess the plaintiff's complaint. I note parenthetically that section 84 of the Act enables the Commission to delegate its functions, other than the power of delegation itself, to any of its officers. 22 If the plaintiff is to succeed in a claim, the foundation of which is common law negligence on the part of named individual servants of the Commission, then one of the things that the plaintiff must establish is the coming into existence of such a relationship between him, personally and individually, on the one hand, and the particular servant of the Commission, individually and personally, on the other hand as is "sufficiently proximate". Without the proof of that particular kind of relationship, it is not possible to postulate that kind and degree of proximity which the common law requires as the foundation of a common law duty of care. 23 In so far as the plaintiff has sought thus to plead his case, his pleading is to be found in paragraph 13 of the amended Statement of Claim. If paragraph 13 is read in conjunction with paragraph 14 of the amended Statement of Claim, then the plaintiff appears to be pleading that the mere fact that the relevant officers of the Commission assessed his complaint as not requiring investigation, entails that they somehow breached a duty of care owed to him. The concept behind paragraphs 13 and 14 appears to be that it follows, therefore, that the Commission is vicariously liable for breaches by those named officers of some such duty of care. 24 It seems to me that paragraphs 13 and 14 misconceive what the law requires in such circumstances. It could not be disputed, I think, that the officers of the Commission owed to the Commission itself at least some common law duty of care in connection with the performance of such duties as might be lawfully assigned to them by the Commission. It cannot, however, follow that a breach of some such duty of care owed by the Commission's officers to the Commission itself translates without more into a simultaneous breach of a common law duty of care necessarily owed by those servants of the Commission to a client of the Commission. 25 In my opinion, the plaintiff's amended Statement of Claim in so far as it seeks to fix the Commission with vicarious liability for breaches of a duty of care owed to him by them, has not pleaded and particularised matters of fact apt to generate that proximity of relationship between him and them, without which such an action cannot succeed. 26 I think, further, that even were the plaintiff able to establish, whether as between himself and the Commission as such, or between himself and servants of the Commission, the requisites of foreseeablity of damage and proximity of relationship, it would not be, to quote from Lord Browne-Wilkinson, "just and reasonable to impose a duty of care". 27 A good example of the reasoning which seems to me to be relevant in that connection will be found in the decision of the Court of Appeal of the United Kingdom in Elguzouli-Daf v Commissioner of Police of the Metropolis and another [1995] QB 335. The particular passage upon which I rely occurs in the judgment of Steyn LJ at 349. In order to set that passage in context it is convenient to quote the relevant parts of the headnote: "The plaintiffs in both cases were arrested, charged and remanded in custody for serious offences but, after periods of detention of 22 and 85 days respectively, the Crown Prosecution Service ('CPS') discontinued proceedings against them. In actions against the CPS, ………………………… the plaintiff in the first case claimed that the CPS was negligent in failing to act with reasonable diligence in obtaining, processing and communicating the results of forensic scientific evidence which showed him to be innocent, and the plaintiff in the second case claimed that it should not have taken the CPS 85 days to conclude that the prosecution was bound to fail." 28 The relevant statements of claim were struck out by a single Judge as disclosing no reasonable cause of action. Appeals were dismissed by the Court of Appeal. In holding that, absent any voluntary assumption of responsibility to a particular defendant in criminal proceedings, there was no duty of care owed by the CPS in the conduct of its prosecution of a defendant, (Steyn LJ, Rose LJ and Morritt LJ concurring), said this: "That brings me to the policy factors which, in my view, argue against the recognition of a duty of care owed by the CPS to those it prosecutes. While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The CPS would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the CPS. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of CPS lawyers would be diverted from concentrating on their prime function of prosecuting offenders. That would be likely to happen not only during the prosecution process but also when the CPS is sued in negligence by aggrieved defendants. The CPS would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the CPS and the quality of our criminal justice system." 29 In my opinion the reasoning upon which that analysis depends is applicable, by parity of reasoning, to the position in the public health system of the defendant Commission. 30 I have come, therefore, to the conclusion that the plaintiff's amended Statement of Claim in so far as it is intended to advance a claim within Lord Browne-Wilkinson's category (C), does not disclose a good cause of action. 31 For the whole of the foregoing reasons, I have come to the conclusion that the preliminary question of law should be answered in the negative. It follows, in my opinion, that the proceedings as constituted by the plaintiff's amended Statement of Claim cannot succeed and should be dismissed. Learned Senior Counsel for the defendant Commission intimated at the hearing that if the Court were to reach that conclusion, the Commission would not seek an order for costs. Orders 32 The preliminary question of law is answered, no. 33 The proceedings commenced by the plaintiff's amended Statement of Claim filed on 6 November 2000 are dismissed. 34 There is no order as to costs. **********

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