Tanious v Dedousis

Background and prior litigation 7Since 2005, the plaintiff's father had been living with plaintiff. Since 2009, the plaintiff's father had been classified as requiring "high care needs". 8On 31 October 2010, the plaintiff's father was brought to St George Hospital by ambulance. The presenting problem was recorded as hypernatremia, unable to mobilise on admission and slurred speech. 9References in the clinical records and reports prepared by treating medical staff record that the plaintiff had fed his father a liquid diet of powdered milk, black tea, and Sustagen since 2007. The clinical records show that medical staff had concerns about discharging the plaintiff's father home, given his family's ability to care for him. 10On 9 November 2010, there was a family conference with Dr Dedousis, two other doctors, the social worker and the plaintiff to discuss the current situation, in which a clinical record was made. The plaintiff advocated that his father be discharged back into his care, while the staff recommended that he be placed in a nursing home given the high level of care he required. 11On 10 November 2010, the hospital team agreed to allow the plaintiff an eight hour trial of care in hospital to ensure that he could look after his father. The plaintiff did not complete the full trial of care. 12On 11 November 2010, Dr Dedousis still believed that a nursing home placement was the most appropriate, and noted his preparedness to approach the Guardianship Tribunal. 13On 17 November 2010, an Application for Appointment of a Financial Manager and/or Appointment of a Guardian was completed by the hospital. The hearing was scheduled for 12 January 2011. 14On 23 December 2010, the plaintiff noted that he informed hospital staff that his father required psychiatric review and anti-psychotics as he was talking nonsense. 15On 7 January 2011, a social worker attempted to communicate with the plaintiff's father about the Guardianship Tribunal, however was unsuccessful as he was unresponsive and remained in the foetal position with his eyes closed. 16On 12 January 2011, the Guardianship Tribunal ordered that the Public Guardian be appointed as the plaintiff's father's guardian for a period of 12 months. 17On 24 January 2011, Ms Judy Hunt was appointed guardian of the plaintiff's father as a delegate of the Public Guardian. 18On 10 February 2011, the Public Guardian decided that care of the plaintiff's father should be trialled at his daughter's home for one month, conditional on hiring suitable equipment. 19On 16 February 2011, the plaintiff's father was discharged from hospital and additional diagnoses were listed as vascular dementia, delirium superimposed or dementia, acute kidney failure and malnourishment. 20On 21 February 2011, the plaintiff lodged an application with the Administrative Decisions Tribunal seeking review of the second defendant's accommodation decision. 21On 1 March 2011, the plaintiff lodged a Request to Review a Guardianship Order to replace the appointed guardian. 22On 14 March 2011, the plaintiff filed a complaint with the HCCC (the "complaint") in respect of Dr Dedousis, on the basis of him refusing to discharge his father back into his care, and for filing a false report with the Guardianship Tribunal. The HCCC took no further action on the complaint, on the basis that there was no evidence to support that Dr Dedousis' management of the plaintiff's father while in hospital and his decision to refer to the Guardianship Tribunal led to his father's behavioural abnormalities. 23On 1 April 2011, the Public Guardian decided that the plaintiff's father should continue living with his daughter (the "plaintiff's sister") and ultimately made that decision permanent after a further three month review. 24On 7 April 2011, the Guardianship Tribunal issued an Order Refusing to Review a Guardianship Order on the basis that the plaintiff was essentially re-arguing issues considered at the original hearing (the "Guardianship order"). 25On 18 July 2011, the Administrative Decisions Tribunal published its decision in relation to the application brought by the plaintiff regarding the accommodation decision (the "ADT decision"). The ADT found that on the evidence available, the plaintiff may not be able to maintain his father's nutrition and therefore it would not be in the plaintiff's father's best interests to be cared for by him at his home. 26The plaintiff appealed that decision to the Administrative Decisions Tribunal Appeal Panel. On 2 February 2012, the Administrative Decisions Tribunal Appeal Panel (the "Appeal - ADT decision") affirmed the decision of the Public Guardian that the plaintiff's father should live with the plaintiff's sister. 27On 15 February 2012, the plaintiff filed a Notice of Appeal to the Court of Appeal challenging the decisions of the ADT Appeal Panel. On 11 April 2012, the second defendant, by notice of motion, sought to have the plaintiff's appeal to the Court struck out. 28On 10 May 2012, the Guardianship Tribunal renewed the Guardianship Order but varied it by appointing the plaintiff's father's priest, Mr Yousef Fanous, as his guardian in lieu of the Public Guardian ("varied Guardianship order"). 29On 28 May 2012, Macfarlan JA in the Court of Appeal in Tanious v Public Guardian [2012] NSWCA 165 dismissed the plaintiff's appeal because the grounds of appeal did not identify an error by the ADT on a question of law ("1st Court of Appeal decision"). 30On 12 June 2012, the plaintiff filed notice of motion seeking a review of the decision of Macfarlan JA made on 28 May 2012. 31On 3 October 2012, Meagher JA, Sackville and Tobias AJJA in the Court of Appeal dismissed the notice of motion in Tanious v The Public Guardian [2012] NSWCA 335 ("2nd Court of Appeal decision"). 32On 14 November 2012, at 91 years, the plaintiff's father passed away. The cause of his death was described as "end stage chronic renal failure, years; progressive vascular dementia (advanced), years; Parkinson's disease, years; cognitive impairment, peripheral vascular disease, benign prostatic hypertrophy, years". 33On 15 March 2013, the plaintiff commenced proceedings in this Court by way of statement of claim. 34On 26 November 2013, the plaintiff filed an ASC.

The requirements of pleadings generally 35UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the Court. 36UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings; or thirdly, is otherwise an abuse of the process of the Court. 37I remind myself that overall the function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287 and 302-3. For a more fulsome explanation as to the principles concerning pleadings see McGuirk v The University of New South Wales [2009] NSWSC 1424 at [21] - [35]. 38The defendants referred to Meckiff v Simpson [1968] VR 62 at 70 and Gunns Ltd v Marr [2005] VSC 251 at [14] - [15] and submitted that the pleadings are ambiguous and so vague so as to embarrass the defendants who do not understand the context of what is alleged against them and are unable to plead an appropriate defence. After a careful reading of the plaintiff's ASC I have to say that I found the pleadings to be confusing.

The amended statement of claim 39The relief sought in the ASC is: "1 - Opening criminal investigation under criminal negligence against defendants all. 2 - Defendants all share in a sum lump compensation of one million Australian dollar for plaintiff, apology and paying cost of this claim". 40The plaintiff pleads a "cause of action" in negligence as follows: "Torts - medical professional negligence - nervous shock/defendants did not select the best interest for plaintiff and his father acting against the guardianship act 1987, the civil liability act, and the health care complaints act, details are included in the enclosed submissions and affidavit." 41Later in the ASC the plaintiff characterises the claim as being one of criminal negligence where he pleads: "1 - Defendants all are liable for criminal negligence as well as health professional negligence in dealing with plaintiff's father illness as a result of accelerated deterioration of plaintiff's father health situation started under their legal and professional responsibilities ended by plaintiff's father death later without any recovery till his death." 42As best I can understand it, the gravamen of the plaintiff's complaint is that he was the one who looked after his father and when he decided to take his father to Bankstown hospital he expected that his father would be returned to his care. According to the plaintiff, while his father was in Bankstown hospital Dr Dedousis prescribed his father the drug Olanzapine, which the plaintiff says was not medically approved to be given to anyone over 65 years of age. At that time, the plaintiff's father was 89 years of age. This, according to the plaintiff, caused an acceleration of the deterioration of his father's kidney function and ultimately contributed to his early death. Because the plaintiff's father was not discharged from hospital back into his care, the plaintiff feels pain because he could no longer care for his father. The pain he feels includes humiliation and shock. I will characterise this pain as "mental harm". The plaintiff seeks compensation for the mental harm he has suffered and this is calculated as damages of $1 million made up as follows: "2 - First defendants pay fifty percent (50%) of lump sum total one million Australian Dollars for plaintiff as an exemplary compensation, second defendants pay twenty five percent (25%) and third defendants pay twenty five percent (25%) as well of the same amount due to humiliation and a lot of stress plaintiff lived in more than two years as a result of their professional negligence and misconduct..." 43He also seeks an apology and payment of his costs incurred in these proceedings.

Negligence 44On 16 February 2011, the plaintiff's father was discharged into the care of the plaintiff's sister and continued to reside with her. It was over 18 months from when the plaintiff's father was discharged from hospital that he passed away. 45The defendants submitted that it is not possible to identify any duty of care owed to the plaintiff by the first, second and third defendants under the Civil Liability Act 2002 (NSW) and that such duty cannot be understood or implied from the facts pleaded. 46While it is probable that the first defendant owed a common law duty of care to the plaintiff's father, the defendants submitted that it cannot be assumed that on the facts pleaded that the first, second and third defendants owed a duty of care to the plaintiff. The defendants submitted that the Civil Liability Act, Health Care Complaints Act 1993 (NSW) and the Guardianship Act 1987 (NSW) do not create a cause of action in negligence in relation to the plaintiff.

The Civil Liability Act 47The relevant sections in relation to liability for negligence of the Civil Liability Act are as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 48While it is clear that Dr Dedousis owed a duty of care to the plaintiff's father, it is my view the plaintiff has not articulated what duty of care Dr Dedousis owed him.

Breach of duty 49If I am wrong and it is arguable that the Dr Dedousis owed a duty of care to the plaintiff, I will consider whether there was a breach of duty of care. The defendants submitted that the plaintiff has not pleaded sufficient material facts to establish a breach of duty of care owed to him. 50So far as the first defendant is concerned the plaintiff's complaints include:

• Preventing the plaintiff's father returning to his care;
• Holding a "wrong" belief that the plaintiff did not have capacity to care his father;
• Asking the plaintiff to undertake training on how to care for the plaintiff's father;
• Wrongfully imprisoning the plaintiff's father in hospital for three months;
• Providing wrong evidence to the Guardianship Tribunal;
• Treating the plaintiff's father with anti-psychotic medication. 51According to the defendants, if the plaintiff intended to make a claim in tort for pure mental harm arising from the death or injury of his father, the plaintiff has not pleaded or identified how any of the assertions are causally linked to his father's death or injury. However, I accept that the plaintiff says that Dr Dedousis prescribed his father the drug Olanzapine, which he says was not medically approved to be given to anyone over 65 years of age. At that time, the plaintiff's father was 89 years of age. This, according to the plaintiff, caused an acceleration of the deterioration of his father's kidney function and ultimately contributed to his early death at 91 years of age. 52The defendants submitted that s 5O of the Civil Liability Act provides Dr Dedousis a defence based upon practice in accordance with competent professional practice. The plaintiff has not served any expert opinion in relation to breach or causation in accordance with the UCPR. While this is so, the issue I have to determine is whether the pleading discloses a reasonable cause of action so far as negligence is concerned. The issue is whether it is arguable that the pleading establishes that there was a breach of duty to the plaintiff by Dr Dedousis. While the allegation about the prescribing of Olanzapine may give rise to a claim that Dr Dedousis breached his duty of care towards the plaintiff's father, it does not give rise to a breach of duty of care in relation to the plaintiff. 53The second and third defendants submitted that the plaintiff has made no identifiable allegations regarding their contribution to his father's death or injury. There is reference made to "wrong belief" and "wrong evidence" in relation to the second defendant but this does not give rise to a breach of duty of care by the second defendant to the plaintiff. The claim for civil negligence fails.

Criminal Negligence 54As previously stated, the plaintiff alleges that all the defendants were criminally negligent in dealing with his father (ASC [1]). According to the Lexis Nexis, "Encyclopaedic Australian Legal Dictionary", 2013 , accessed 10 February 2014, criminal negligence is: "Negligence which goes beyond a mere matter of compensation between subjects and shows such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment: R v Bateman [1925] All ER Rep 45; (1925) 28 Cox CC 33. Mere lack of care such as will constitute civil liability is not enough. To prove manslaughter by criminal negligence, a very high degree of negligence is required to be established: Andrews v DPP [1937] AC 576; (1937) 26 Cr App R 34; R v D [1984] 3 NSWLR 29; (1984) 14 A Crim R 198." 55There is nothing in the plaintiff's pleadings that shows that any of the defendants' actions amounted to criminal negligence. The claim for criminal negligence also fails.

Do the statutes create private rights? 56So far as the Health Care Complaints Act and Guardianship Act are concerned, the second and third defendants says that while they create a cause of action for the benefit of the plaintiff's father in certain circumstances, they do not create a private action for the plaintiff. 57In relation to the law as to whether a breach of the statutory duty gives rise to a private right was discussed in Sovar v Henry Lane Pty Limited (1967) 116 CLR 397, where Kitto J at 405 stated: "...The intention that such a private right shall exist is not ... conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature... which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation." 58The above quote was cited with approval in Stubbs v NRMA Insurance Ltd (1997) 42 NSWLR 550 at 555. 59So far as the Public Guardian is concerned, the plaintiff's complaints are: "Refused plaintiff's request that the plaintiff's father be treated by another specialist other than the first defendant; Changing the plaintiff's father's accommodation" 60The second defendant submitted that the Public Guardian has a statutory defence under s 100 of the Guardianship Act which relevantly states: "100 Limitation of personal liability No matter or thing done by the Minister, the Director-General, the Public Guardian, an officer or any other person shall, if the matter or thing was done in good faith and with reasonable care for the purposes of executing this Act, subject the Minister, the Director-General, the Public Guardian, the officer or that other person personally to any action, liability, claim or demand." 61In relation to the third defendant, the plaintiff's allegations are that the HCCC,

• Refused to take legal action against the first defendant;
• Delaying their decision;
• Not being neutral and fair. 62The Commissioner has a statutory defence under s 96 of the Health Care Complaints Act which relevantly reads: "96 Exoneration from liability (1) A matter or thing done or omitted by a person, being the Commissioner, an officer of the Commission, the Registrar or a conciliator 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. (2) The making of a complaint, or the reporting of any matter or thing that could give rise to a complaint, to the Commission or a professional council by any person does not, if it was done in good faith, subject the person personally to any action, liability, claim or demand." 63As the claim is currently pleaded, I am unable to envisage how the plaintiff has a private cause of action against the defendants for any breach of statutory duty.

Abuse of process/res judicata 64The principles of res judicata or issue estoppel apply where there is an attempt to re-litigate issues that have previously been determined in proceedings. Alternatively, an attempt to litigate issues which could and should have been litigated in previous proceedings will give rise to the Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 65Dixon J's analysis of these two principles in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 remains a guiding precedent. His Honour says at 531-532: "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order." 66The defendants acknowledge that the previous proceedings did not contain claims for damages. The current pleadings seek criminal sanctions, an apology and financial compensation in the sum of $1 million. 67It is clear that the re-litigation of the same cause of action in fresh proceedings is likely to involve the same issues, giving rise to res judicata and issue estoppel. 68The defendants submitted that the plaintiff's pleadings are an abuse of process, in that the pleadings seek to re-agitate some issues that already have been determined by the Public Guardian, the ADT, the ADT Appeals Panel and the Court of Appeal. 69On 12 January 2011, the Guardianship Tribunal appointed the Public Guardian as the plaintiff's father's guardian. On 10 February 2011, the Public Guardian made the decision that the plaintiff's father live with his daughter. On 1 April 2011, the Public Guardian determined that his father continue to live with his daughter. 70On 18 July 2011, the ADT affirmed the decision of the Public Guardian that the plaintiff's father continue to live with the plaintiff's sister: ABJ v Public Guardian [2011] NSWADT 172. The ADT stated that it did not have the basis to dispute the view of medical staff that the plaintiff was not able to meet the care of needs of his father at home, that the plaintiff did not follow professional medical advice with regards to the care of his father and that it cannot be satisfied that it would be in his father's best interest to reside with him. The plaintiff tendered a statutory declaration signed by his father which indicated that he wished to live with the plaintiff. The ADT did not accept that evidence because the words of the statutory declaration were not read to the plaintiff's father. 71On 2 February 2012, the ADT Appeal Panel also affirmed the decision of the Public Guardian that the plaintiff's father should live with the plaintiff's sister: ABJ v Public Guardian (GD) [2012] NSWADTAP 3. The plaintiff claimed that the ADT failed to comply with s 4 of the Guardianship Tribunal Act and in particular, stated that the ADT failed to take into account his father's views when making its decision. According to the ADT Appeal Panel, the ADT's decision did not disclose any error of law. 72The plaintiff also sought leave for the appeal to extend to the merits of the ADT's decision where he set out 13 matters on which he relied upon. The ADT Appeal Panel stated at [9] that: "Each of those matters is either a disagreement with a factual finding made by the Tribunal or an effort to adduce further evidence which was not tendered at the hearing at first instance." 73The ADT Appeal Panel held that the plaintiff had not satisfied it that the ADT's findings justified revisiting the decision. 74On 28 May 2012, the Court of Appeal dismissed the appeal brought by the plaintiff pursuant to s 119 of the Administrative Decisions Tribunal Act 1997 (NSW): Tanious v Public Guardian [2012] NSWCA 165. In dismissing the appeal, Macfarlan JA stated at [5] that: "Many of the grounds, as well as much of what was submitted by Mr Tanious in response to the Notice of Motion, relate not to the decision the subject of the appeal to the ADT (and in turn the subject of the ADT's decision of 2 February 2012), but to the appropriateness of the guardianship order in respect of Mr Tanious' father, the conduct of the Public Guardian in giving effect to that order and, finally, the psychiatric assessment of Mr Tanious' father." 75On 3 October 2012, the Court of Appeal (Meagher JA, Sackville and Tobias AJJA) dismissed the plaintiff's application for the review of Macfarlan JA's decision of 28 May 2012: Tanious v The Public Guardian [2012] NSWCA 335. In support of his application for the review of Macfarlan JA's decision, the plaintiff: (1)Alleged that the Public Guardian's delegate was negligent in when making the decision to place Mr Tanious' father in the care of his daughter rather than in the care of Mr Tanious. (2)Alleged that the Public Guardian failed to give primacy to the best interest of Mr Tanious' father in accordance with s 4 of the Guardianship Act. (3)Raised particular complaint with respect to the failure of the Public Guardian's delegate to have Mr Tanious' father to be examined by the an Arabic-speaking psychiatrist of Mr Tanious' choice. 76The Court noted that the correctness of the guardianship order made on 12 January 2011 by the Guardianship Tribunal was academic given that Mr Fanous (the father's priest) had been appointed as the guardian and that the plaintiff had no complaint in respect of the Mr Fanous' appointment. 77It is fair to say that while the plaintiff's father was alive, the plaintiff challenged the orders of the Guardianship Tribunal in relation to who should be his father's guardian, his father's medical treatment, where the plaintiff's father should reside and the wrong evidence given at the Tribunal hearings. 78It is my view that the current proceedings are yet another attempt by the plaintiff to re-litigate the same issues which have already been determined in previous proceedings. 79The result is that these proceedings should be dismissed for a number of reasons, namely, it is not properly pleaded, it does not disclose a reasonable cause of action and they are an abuse of process of the Court. 80In the exercise of my discretion, I would not grant the plaintiff a further opportunity to replead his amended statement of claim as the deficiencies that have been identified cannot be cured by amendment. 81Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs of the proceedings including the costs of the defendants' notice of motion filed 2 August 2013.

The Court orders that: (1) The proceedings are dismissed. (2) The plaintiff is to pay the defendants' costs of the proceedings including the costs of the defendants' notice of motion filed 2 August 2013.

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. Decision last updated: 12 February 2014