PISANO -v- THRUM [No 4] [2011] WASC 290 (26 October 2011)

3 On 21 October 2002 the plaintiff commenced this action in which he claimed damages for defamation, damages for misleading or deceptive conduct, damages for interference with the plaintiff's contractual relationship with Fremantle Hospital and injunctions. Since then the plaintiff's statement of claim, or parts of it, have been struck out and the plaintiff has abandoned his claims for causes of action for misleading or deceptive conduct and interference with contractual relations. The plaintiff's claim is now solely in defamation.

4 The plaintiff claims that the words of the letter are defamatory of him both in their natural and ordinary meaning and by reason of the matters set out in paragraphs of the statement of claim, including [12], [12A] and [13] which the defendant applies to strike out. Paragraph 12 pleads that the plaintiff entered into a contract of employment with the Fremantle Hospital and [12A] and [13] plead terms of that contract. Those paragraphs are also relevant to the plaintiff's claim for special damages in [19], which the defendant also applies to strike out.

5 Paragraph 12 pleads that the plaintiff entered into a contract of employment with the Fremantle Hospital (the Employment Contract). The defendant submits that the plea is embarrassing because it does not plead whether the contract was in writing, verbal or implied or partly one and partly the other. In an action for breach of contract the plaintiff should plead the contract and its breach as facts. The pleading should state the date of the alleged agreement, the names of the parties to it, and whether it was made orally or in writing, in the former case stating by whom it was made and in the latter case identifying the document, and in all cases setting out the relevant terms relied on: Turquand v Fearon (1879) 48 LJQB 703. However, this is not a case of breach of contract. Furthermore, the defendant has pleaded in his defence filed on 12 July 2005 that he admits that the plaintiff entered into a contract of employment with the State of Western Australia by which he agreed to provide his services to patients as an orthopaedic surgeon at Fremantle Hospital. The terms of the plaintiff's employment contract are relevant to his claim for special damages in [19]. The defendant is entitled to know whether the contract is in writing, oral, implied or one or more of those things and is entitled to apply for, and be provided with, particulars of those things. However, [12] is not embarrassing in its present form and will not be struck out.

6 In [12A] the plaintiff pleads that it was an express term of his Employment Contract that the initial term of the Employment Contract was for a period of six months. It is not apparent from the substituted statement of claim that it is relevant that the plaintiff's contract of employment was for an initial term of six months. In any event, in his defence the defendant admits that the plaintiff entered a six month contract of employment with the State to provide services to patients at Fremantle Hospital. It appears from the plaintiff's claim for special damages in [19] that his employment, whether pursuant to the Employment Contract or not, may have continued beyond six months but it is not clear whether that is so or not. Accordingly, the defendant is entitled to apply for particulars of the term of the plaintiff's Employment Contract or any further contract of employment and the plaintiff should provide such particulars if requested. However, [12A] is not embarrassing in its present form and will not be struck out.

7 Paragraph 13 pleads that it was an express term of the Employment Contract that the plaintiff would participate in the training of Registrars at the Fremantle Hospital. Particulars are then given of the express term:

At all material times it was an usual incident of the employment of a specialist orthopaedic surgeon at the Fremantle Hospital that the specialist orthopaedic surgeon participate in the training of Registrars at the said hospital.

8 The plea is embarrassing. On the face of it, the particulars are not particulars of an express term of the plaintiff's Employment Contract. The alleged particulars do not appear to be particulars of the plaintiff's Employment Contract but rather to be saying something about the usual terms of employment of orthopaedic surgeons at the hospital. Alternatively, the particulars might be saying that it is an implied term of the plaintiff's Employment Contract because it is a usual incident of the employment of a specialist orthopaedic surgeon at the hospital. If so, then the pleading is selfcontradictory in that the plea of an express term relies upon the implication of a term. I will strike out [13].

9 Paragraph 19 pleads that by reason of the matters pleaded at [14] and [18] the plaintiff has suffered and continues to suffer loss and damage and has suffered mental distress. Paragraph 14 pleads that the defendant wrote and posted the letter complained of to Mr Kelly, Mr Skirving and Mr Genat, all of whom held senior positions at the hospital or was an orthopaedic surgeon. Paragraph 18 pleads, in effect, that the letter is defamatory of the plaintiff and has injured his reputation and has caused him to suffer injured feelings and mental distress. Paragraph 19 sets out particulars of loss and damage. The particulars are that the plaintiff has worked approximately 2.4 hours per week less at the hospital than he otherwise would have worked had the letter not been written and in addition the plaintiff received less referrals from insured or private clients due to working 2.4 hours less per week on average and working less on call shifts and that over the two years between 2 July 2002 and 2 July 2004 the plaintiff estimates he has lost $60,000. The defendant says that the plaintiff has not pleaded the nexus between the letter and the plaintiff working less hours at the hospital.

10 Where a plaintiff has suffered financial loss as a result of a publication he is entitled to claim for the loss as special damages. The plaintiff must prove that the defamatory publication is the cause of the financial loss. The defendant submits, in effect, that the plaintiff has not pleaded or established any causative link between the letter and the plaintiff working fewer hours per week.

11 In Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 Chesterman J in the Supreme Court of Queensland said:

In any cause of action in respect of which causation is an essential element it is necessary to plead the material facts which are said to give rise to the causal connection. In particular it is necessary to plead the facts which lead to a reasonable inference that the acts complained of ... and the alleged later event ... stand to each other in the relation of cause and effect [15].

12 The degree of certainty and particularity with which the special damage must be pleaded will vary from case to case and will depend on the circumstances. In Ratcliffe v Evans [1892] 2 QB 524 Bowen LJ said:

In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves will produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be manifest pedantry (532 533).

13 Working fewer hours is not an obvious or logical consequence of the publication of the letter complained of. Paragraph 19 does not plead the facts which lead to a reasonable inference that the publications complained of and the plaintiff working fewer hours stand to each other in the relation of cause and effect. The current plea is nothing more than a bald assertion than the publications caused the plaintiff to work fewer hours. The question for the court is whether [19] is a sufficient plea of special damage in all the circumstances. The court should require as much certainty and particularity as is reasonable having regard to the circumstances and to the nature of the acts by which the damage is alleged to have been done.

14 The loss and damage claimed by the plaintiff has two elements. The first element is that the plaintiff worked fewer hours after the letter was received than before. On the face of it, the plaintiff's claim is that as a result of the letter sent to Mr Kelly the plaintiff was offered fewer hours work at the hospital than he was offered before the letter was received. The function of particulars is relevantly to apprise the opposite party of the nature of the case to be met and of sufficient information to ensure a fair trial and to guard against surprise but not to provide the opposite party with the mode by which the case is to be proved: R v Associated Northern Colliers [1910] HCA 61; (1910) 11 CLR 738, 740 741. I find that the particulars of loss of earnings between 2 July 2002 and 11 December 2002 is sufficiently particularised to inform the defendant of the case to be met at the hearing subject to a qualification I will return to after considering the second element of the plaintiff's claim for loss or damage.

15 The second element of the plaintiff's claim for loss and damage is for loss resulting from less referrals from insured or private patients due to working fewer hours per week on average and working less on call shifts. The particulars given do not sufficiently inform the defendant of the case to be met at trial. The particulars do not say that patients who the plaintiff treated at the hospital became his private patients who paid him for treating them privately. The particulars say that the plaintiff received referrals from insured or private patients. Presumably, the plaintiff says that patients who he treated at the hospital referred friends or acquaintances to the plaintiff who treated those referred persons as a patient in the course of his practice as an orthopaedic surgeon outside of the hospital. The particulars do not define insured or private patients. Private patient is commonly understood to refer to a private patient who is charged for the hospital services they receive and is distinguished from a public patient who is treated at no charge in a public hospital by a doctor appointed by the hospital. Private patients usually have private health insurance which covers some of the charges for the hospital services. Insured patients might refer to patients with private health insurance in which case they may be the same as private patients. In any event, no facts are stated to explain how the plaintiff received referrals from patients, whether the plaintiff then treated those patients at the hospital or elsewhere and the number of patients or amount of fees received from such patients before or after the sending of the letter. Furthermore, it is not apparent whether the plaintiff ceased, or continued, working at the hospital in December 2002. Paragraph 12A pleads that the plaintiff's initial term of employment was for a period of six months but nothing is said about whether or not the plaintiff continued to work at the hospital after that six month term and if so on what terms. It is not apparent whether the plaintiff's case is that he would have continued to receive 'referrals' until 2 July 2004 if the letter had not been written or if his case is that he did not receive referrals between 2 July 2002 and 11 December 2002 that he would have received had the letter not been written and those referrals would have generated fees for the plaintiff between December 2002 and July 2004. Paragraph (e) of the particulars says that the plaintiff estimates he has lost $60,000 between 2 July 2002 and 2 July 2004. No particulars are given that would enable the defendant to know how those special damages are calculated and, if he wishes, to make an appropriate payment into court. The plaintiff's particulars in relation to 'lost referrals' fail to state the nature of the loss and the circumstances in which the loss was suffered.

16 If (d) and (e) of the particulars of loss and damage could be severed from the remaining particulars I would have struck out only those paragraphs of the particulars. However, it is not clear whether the plaintiff's case that he suffered loss as a result of working 2.4 hours less per week after the defendant wrote the letter is confined to the period from 2 July 2002 to 11 December 2002 or continued until 2 July 2004. In those circumstances all of the particulars should be struck out. If the particulars are struck out then the whole of [19] should be struck out because without the particulars [19] fails to state any material facts giving rise to a claim for special damages.