Prior to 31 October 2010 the appellant had care of his father, who was then living with him at his home. On that date, his father was taken by ambulance to St George Hospital, suffering from hypernatremia (indicating an abnormally high level of sodium in the blood), difficulty in moving and slurred speech. Members of the St George Hospital Aged Care Team, under the supervision of Dr Dedousis, had concerns as to the appellant's ability to care for his father at home. The father remained in St George Hospital until 16 February 2011 when he was discharged into the care of his daughter (the appellant's sister). By that stage a guardianship order had been made and in the following months there were numerous hearings, including before the Guardianship Tribunal and the Administrative Decisions Tribunal, concerning the arrangements for care of the appellant's father. Attempts to challenge the arrangements were ultimately unsuccessful, a review of the decisions was dismissed by this Court: Tanious v The Public Guardian. [3]
[2]
The pleading
The amended statement of claim was not a lengthy document. So far as it related to the Local Health District and Dr Dedousis, it involved one paragraph extending for half a page. The particulars covered a further page. The pleading is inadequate, in part because of the appellant's difficulties with written English, which is not his first language. However, a generous reading of the pleading reveals three elements of a cause of action.
First, it is reasonably clear that the primary harm relied upon is mistreatment of the appellant's father in the hospital, consequentially causing humiliation and shock to the appellant. The basis of the mistreatment is not clearly articulated, but includes a proposition that there was "wrong imprisonment of plaintiff's father in hospital [for] more than three months without any consent". Secondly, it is alleged that:
"Plaintiff's father became unable to walk on his feet under the first defendants['] care, in a situation of low mood with possibility of depression, talking out of his mind, tearing [crying?] to go back home, insulting, in need for anti-psychotic medicine, refusing to feed himself with marked deterioration in his health and nutritional situation which became very clear when comparing his blood investigation results before, during and after the care of them till his death. They gave plaintiff's father medicine known as OLANZAPINE which has not been medically approved to be given to anyone older than 65 years of age, plaintiff's father when they gave him the mentioned medicine was 89 years old."
Thirdly, the claim was for damages ($1 million), as "exemplary compensation … due to humiliation and a lot of stress plaintiff lived in [for] more than two years as a result of their professional negligence and misconduct."
The particulars do not helpfully expand upon these statements. Nevertheless, and however badly expressed, it is reasonably clear that the appellant was asserting mental harm to himself, as a result of breaches of duty of care in the treatment by the defendants of his father. This articulates what is sometimes described as a "secondary or derivative claim." The basis of such a claim was explained in Lane v Northern NSW Local Health District (No 3), [4] a case dealing with proceedings brought by two daughters in respect of the care provided to their mother. The nature of the cause of action was explained in the following passages.
[7] The appellants asserted a secondary or derivative claim. That is, although the respondent owed them a duty of care, the content of that duty was referable to a separate duty owed to their mother. In principle, the existence of such a duty need not be doubted. For example, in Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317, Gleeson CJ described the facts of the case at [3]:
'... at one level, the conduct of the respondent was of a kind that commonly forms the basis of tortious liability; it was the alleged failure of an employer to provide an employee with a safe system of work. But there is more to it than that. The employee was a minor. His parents, the applicants, had agreed to permit him to work for the respondent, in a remote part of outback Australia, on the faith of assurances that he would be well cared for. It is alleged that he was not well cared for. He died. The parents suffered psychiatric injury.'
[8] Like the present case, that was a situation where there was a pre-existing relationship between the parties, prior to the death of the family member, which involved an express or implied undertaking to take reasonable care for the health and well being of the family member. The High Court held that the duty to take reasonable care was not limited to circumstances where psychiatric injury flowed from a 'sudden shock' or where the injury to the family member was directly perceived by those suffering psychiatric injury, although in this case at least the latter element was satisfied in any event. (See also Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 214 CLR 269.)"
As further explained in Lane, [5] to succeed with such a claim the appellant must establish (a) a sufficient relationship between the defendants and the plaintiff; (b) that the defendants had been negligent in the treatment of his father; (c) that the negligent treatment had caused a deterioration in the health or well-being of his father, and (d) the father's condition so caused had in turn caused the plaintiff to suffer from a psychiatric condition.
It is by no means clear that the appellant will be able to establish those matters. Nevertheless, the proceedings have not reached the stage where he has been required to present any evidence. Indeed, it is not yet known which if any of the matters identified above will be disputed by the defendants.
[3]
The primary judgments
Relevantly for present purposes, Harrison AsJ dealt with the issues presented before her on alternative grounds. Thus, she dealt first with the question of a duty of care. She stated at [48]:
"While 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."
In case she was wrong in that regard, Harrison AsJ continued to deal with a question of breach, albeit in a manner which tended to suggest an arguable understanding of the scope of the necessary duty. Harrison AsJ stated:
"[51] According 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.
[52] The 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."
Price J noted that one of the reasons the amended statement of claim was dismissed was that the plaintiff's claim was not properly pleaded. [6] That was undoubtedly a sound basis for striking out the pleading, but was not sufficient in itself, to warrant dismissal of the proceedings without an opportunity to replead, unless the Court were to be satisfied either that there was no reasonable cause of action available or that there was some other reason (such as the history of the proceedings) why leave to replead should not be granted.
Price J then identified as another reason that the proceedings were dismissed the finding of Harrison AsJ that "no reasonable cause of action was disclosed." Price J continued:
"[35] … In reaching this conclusion, her Honour found:
(i) that while it was clear that Dr Dedousis owed a duty of care to the plaintiff's father, the plaintiff had not articulated what duty of care Dr Dedousis owed to him;
(ii) 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;
…
[36] Her Honour analysed the ASC [amended statement of claim] before making these findings. In respect of the first defendant, her Honour observed at [50]:
'So 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.'
…
[38] None of the matters in her Honour's analysis of the plaintiff's complaints against the first defendant are capable of giving rise to a duty of care that was owed by the first defendant to the plaintiff. The matters referred to in submissions by the plaintiff such as being the only person who convinced his father to be under the care of the first defendant or being the only person to support his father do not take this issue any further. Furthermore, her Honour did not act upon wrong principle when she concluded that the allegation about the prescribing of Olanzapine did not give rise to a claim that the first defendant breached a duty of care in relation to the plaintiff."
[4]
Appeal from summary judgment
The matters identified by Price J (at [38]) were arguable bases for alleging a breach of duty on the part of the defendants to the appellant's father. (Whether they could be established as matters of fact is a different issue.) Although it is true that the nature of the duty owed to the appellant was not articulated in terms which would be expected of a competent legal practitioner, the allegations of breach of duty to the appellant's father, together with the harm allegedly suffered by the appellant, arguably indicate an intention to rely on a secondary or derivative duty of the kind referred to in Lane.
In these circumstances, the Court below was entitled to strike out the amended statement of claim. However, unless, for reasons which were not articulated, the Court were satisfied that, given an opportunity to replead the appellant would be unable to articulate an available cause of action or there was some other reason why liberty to replead should not in the proper exercise of the Court's discretion have been granted, an opportunity to replead on the limited basis identified above, with respect to the Local Health District and Dr Dedousis alone, should have been provided. Other than in relation to a request by the appellant to amend his claim from a claim for exemplary compensation under the Civil Liability Act to a claim for compensation under the Compensation to Relatives Act 1897 (NSW), Price J did not address the question whether there had been an error by Harrison AsJ in the exercise of the discretion whether to grant liberty to replead; nor did Price J address the question whether such leave should be granted. (It may be that this was because he was not asked to do so.)
It may be noted that the approach of the respondents in this Court has been somewhat ambivalent. In the course of the leave application, Ms Boyd, appearing for the respondents, expressly agreed that Price J was in error in stating that none of the plaintiff's complaints were capable of giving rise to a duty of care owed by the doctor or the hospital to the appellant. [7] However, leave having been granted and an amended notice of appeal having been filed on 25 February 2015, the respondents' immediate response was to file a notice of motion seeking to have the amended notice of appeal struck out. Various orders were made by the Registrar which appear to have satisfied the respondents that the appeal could proceed, but it is doubtful if much was achieved by that motion.
The written submissions filed on 11 May 2015 repeated the proposition that the amended notice of appeal was "obviously defective." An attack was then made on one ground that it was "incomprehensible" and failed to identify error in the judgment of Price J. There was no reference in the written submissions to the simple proposition which had been accepted by Ms Boyd representing the defendants on the leave application.
With respect to the other ground, the submissions noted that numerous rules in the UCPR were identified as relied upon, most of which were irrelevant. Many paragraphs were devoted to demonstrating their irrelevance. These submissions were correct but unhelpful.
As to the complaint concerning the amended notice of appeal, the layout of the amended notice of appeal left much to be desired. It was not entirely clear whether the existing provisions, which were not struck through as might have been expected by correct pleading, were intended to stand. The amendments, identified in italics, immediately followed the original paragraphs. Thus, Dr Dedousis and the Local Health District were identified (in italics) as the first respondents, but the names of the second and third respondents were not removed, as they should have been.
On 10 April 2015 the respondents filed a notice of motion seeking to strike out the amended notice of appeal. (They correctly identified the first respondent as Dr Dedousis and the Local Health District in the notice of motion.) The motion was set down for hearing with the appeal. No practical purpose would be served by setting aside the amended notice of appeal. Accordingly, the motion should be dismissed.
The one rule in the UCPR which might have been referred to, but was not, and may prove critical for the future of this proceeding, is r 31.36. That rule requires (unless the Court orders otherwise) that a person commencing a professional negligence claim file and serve with the statement of claim an expert's report addressing breach of duty, the general nature and extent of any damage alleged and the causal relationship between the breach of duty and the damage. [8] The usual practice is for a plaintiff to obtain such a report in advance of preparing a statement of claim, so that the pleading may sufficiently reflect the opinions expressed in the supporting report of the expert. A plaintiff who fails to file such a report with the statement of claim should not expect the claim to proceed. [9] No such report has been filed and served in the present proceedings.
[5]
Orders
Although there was no error in striking out the amended statement of claim, there was error in dismissing the proceedings in the absence of a proper reason for not exercising the discretion to grant liberty to replead. There nevertheless remains a real question as to whether this Court should allow the appellant a further opportunity to amend his pleading. It was by no means clear from the course of his submissions on the appeal that the appellant fully understood the elements of the tortious claim which he apparently wishes to pursue (nor was it clear, for that matter, that he understood that the grant of leave to appeal was limited to the dismissal of that part of his proceedings). Whether he is able to articulate a proper pleading without qualified legal assistance is unclear. So far that has not been achieved. In the course of submissions he indicated that he would obtain legal assistance. However, so far that has not occurred.
Given these doubts, the Court is not prepared to grant leave to amend, but rather proposes to remit the proceedings to the Common Law Division where the appellant may, within a limited period, file a notice of motion seeking leave to amend and annexing any proposed further amended statement of claim. It will be a condition of such an application that the proposed pleading be accompanied by one or more reports from qualified experts (not being the appellant) supporting the essential elements of the pleading (and addressing the matters identified in r 31.36).
Those conditions may take the appellant some weeks to fulfil. For example, it will be necessary to obtain an expert medical report commenting on the treatment of the appellant's father in St George Hospital. It will also be necessary for the appellant to obtain a medical report (almost certainly from a different expert) as to any psychiatric harm he may have suffered as a result of any alleged breach of duty owed by the respondents to his father. (The Court does not assume that such harm has been suffered: in the course of the appeal, the appellant appeared to deny that he had suffered more than stress, humiliation and a waste of his time.)
Given that the appeal is being determined some four weeks before the period over which many professionals take a long vacation, it is appropriate that the appellant have a reasonably extended period to comply with the conditions to be included in the orders of this Court, should he wish to do so. On the other hand, the proceedings should not be allowed to drag on without a prescribed limit. In these circumstances, the appellant should have until 30 April 2016. If a notice of motion seeking leave to amend, with the accompanying documentation, has not been filed and served by that date, the proceedings will stand dismissed. If a notice of motion with accompanying documentation is filed, the fate of the proceedings will be in the hands of a judge of the Common Law Division. The appellant should be under no misapprehension that, if the conditions have not been complied with in full, it is likely that the motion and the proceedings will be dismissed.
The Court should make the following orders:
1. Allow the appeal from the judgment of 9 October 2014 and set aside the orders made by Price J.
2. In place thereof:
1. set aside the orders of Harrison AsJ made on 12 February 2014 dismissing the proceedings with costs and in place thereof order that:
1. the amended statement of claim filed on 26 November 2013 be struck out;
2. subject to the requirements specified in (iii) below, the plaintiff may file and serve a notice of motion in the Common Law Division, no later than 30 April 2016, seeking leave to file and serve a further amended statement of claim;
3. the notice of motion referred to in (ii) above shall be accompanied by a proposed further amended statement of claim which:
(A) may name as defendants only South Eastern Sydney Local Health District and (if thought necessary) Dr Chris Dedousis;
(B) shall be accompanied by a report or reports by one or more experts (not being the plaintiff) qualified to express an opinion as to:
(1) any allegation as to a breach of duty by the defendants in the treatment and care of the plaintiff's late father;
(2) any harm caused to the plaintiff's late father by the alleged breach of duty;
(3) any harm suffered by the plaintiff by the alleged breach of duty; and,
(4) the causal connection between any harm suffered by the plaintiff and any breach of duty to his father;
1. in the event that a notice of motion seeking leave to amend and purportedly complying with the conditions set out above is not filed and served within the time specified, the proceedings will stand dismissed;
2. the costs of the hearing before Harrison AsJ be costs in the proceedings;
3. the costs of the plaintiff's review motion before Price J be costs in the proceedings.
1. The appellant's costs in this Court as an unrepresented litigant be his costs in the proceedings.
[6]
Endnotes
Tanious v Dedousis [2014] NSWSC 51.
Tanious v Dedousis (No 2) [2014] NSWSC 1361.
[2012] NSWCA 335 (Meagher JA, Sackville and Tobias AJJA), delivered on 3 October 2012.
[2014] NSWCA 233; [2015] Aust Torts Rep 82-194.
At [9].
Tanious (No 2) at [18].
Tcpt, 06/02/15, p 4(1)-(7).
UCPR, r 31.36(1).
See generally, Salzke v Khoury (2009) 74 NSWLR 580; [2009] NSWCA 195 at [59]-[64] (Ipp JA, Basten JA and Gzell J agreeing) and [115]-[123] (Basten JA).
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Decision last updated: 19 November 2015
Tanious v The Public Guardian [2012] NSWCA 335
Category: Principal judgment
Parties: Mofeed Louis Tanious (Appellant)
South Eastern Sydney Local Health District (First Respondent)
Dr Chris Dedousis (Second Respondent)
Representation: Counsel:
Appellant in person
Ms L Boyd (Solicitor)
Solicitors:
Appellant self-represented
Crown Solicitor's Office (Respondents)
File Number(s): 2014/319990
Decision under appeal Court or tribunal: Supreme Court
Jurisdiction: Common Law
Citation: [2014] NSWSC 1361
Date of Decision: 09 October 2014
Before: Price J
File Number(s): 2013/80247