Yovichevich v The Royal Australian and New Zealand College of Radiologists

Yovichevich v The Royal Australian and New Zealand College of Radiologists - [2009] NSWSC 381 - NSWSC 2009 case summary — Zoe

[11]

Adams J continued at [37] and [38]: "37 So far as the plaintiff's claim for relief is concerned, no facts matters or circumstances are alleged from which it is possible to identify the reasons for which the College is liable to compensate the plaintiff for the loss of the income claimed, let alone admit him to membership of the College. 38 It may be that the plaintiff is able to make good these defects. Accordingly, it seems to me that the proper order here is that I should give leave to the plaintiff to file and serve an amended statement of claim complying with the rules as to the allegations of material facts and giving appropriate particulars. He has twenty-eight days from the date of this judgment to do so, failing which the proceedings are to stand dismissed. The plaintiff is to pay the defendant's costs of the motion." 2 The plaintiff filed an Amended Statement of Claim on 23 February 2006. The College moved to strike it out. About 12 October 2006 the plaintiff propounded a Second Amended Statement of Claim. 3 When the matter came before Malpass AsJ, he, in a reserved judgment, dismissed the proceedings on 17 May 2007, having isolated a separate question. During the hearing before the Associate Judge he was told that the Statement of Claim needed to be further amended. 4 In my judgment of 20 August 2008 I disagreed with the approach of the Associate Judge. However, it was accepted during the hearing that the Statement of Claim required amendment. I directed the plaintiff to deliver a draft of its proposed further amended statement of claim ("PFASC"). This was done. This is the fourth version. 5 The defendant contends that it is significantly deficient. The PFASC contains allegations of negligence, wrongful conduct and denials of procedural fairness and natural justice. 6 As to negligence, it is alleged in paragraphs 2(d) and (e) that, when administering such exams, the College was under a duty to its candidates to take reasonable care to avoid foreseeable harm to them in the form of wrongfully grading the person as failed. In paragraph 5 of the PFASC it is alleged that, in breach of its duty (paragraphs 2(d) & (e) - incorrectly referred to as paragraph 3), the defendant negligently failed the plaintiff whereas it ought to have graded him as a pass or better. The following Particulars of Negligence were supplied: "The Plaintiff's entitlement to pass the said examination and hence the Defendant's negligence, is to be inferred from: i) the Plaintiff's uncontradicted assertions at the informal review on 16 December [1999] with Dr Perry described below; ii) the implied admissions of the Defendant at that time."

[31]

(c) Numerous applications to hospitals or clinics with 'Area of Need' status for a staff specialist position, without success." 7 Under UCPR 14.7 a party's pleading must contain only a summary of the material facts on which the party relies. In an action in negligence it is not sufficient for the plaintiff to plead general phrases referrable to the tort thereby leaving the defendant to establish why those general formulae would be insufficient to enable the plaintiff to be successful in the proceedings: Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust. Torts Reports 81 - 636, [2002] NSWCA 243; BC 200104223, see per Heydon JA at [47], with whom Mason P and Handley JA agreed. 8 Many of the allegations made by the plaintiff are of a very general kind and unsupported by adequate particulars. I doubt if the Warden's review is subject to the rules of natural justice - see paragraph 12 of the PFASC. No sufficient basis is stated for the allegation that Dr Perry was the College' agent nor that his failure to contradict the plaintiff's assertions and his comments and conduct could be attributed to the College. The College cannot be expected to retain exam records once the Warden's review is completed and the appeal process is not invoked. The College has no duty to give the plaintiff prior notice of its intention to dispose of the exam records absent an appeal. It seems from the PFASC that the plaintiff is anticipating the result of the appeal process and the College's approach. It cannot be expected to modify its processes to suit the wishes, fears and approach of the plaintiff. 9 I was initially troubled by the use in the PFASC of the phrase "wrongful conduct". Counsel for the plaintiff told me that the concept of deliberate interference with economic interests was not at the front of his mind when he drafted the PFASC. It was intended that the PFASC raise a case based on common law negligence and one in which judicial review was sought. Counsel accepted that, if he was to succeed on the claim for judicial review, he would need to amend the relief sought. 10 The defendant pointed to the relief claimed, namely:

[38]

(d) had as one of its objects to conduct the examinations to grant to registered medical practitioners recognition of special knowledge in Radiology or Radiation Oncology. 17 The defendant submitted that a failure to avoid foreseeable harm does not of itself give rise to a duty of care: Perre v Apand Pty Limited, supra, especially per McHugh J at [94], [95], [104] and [105]. Adams J at [24] thought that "there appears to be an arguable case, at least, that the application of the criteria identified by McHugh J suggests that the College might owe a duty of care to [the plaintiff] to conduct its examination of him in a fair and proper manner. 18 Counsel for the plaintiff contended that the facts as set out in the PFASC showed that the parties were in a sufficient relationship for a duty of care to exist in relation to the conducting of exams amongst other things. 19 In Perre v Apand Gleeson CJ referred with approval to the speech of Lord Oliver in Kaparo Industries v Dickman that "in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced." Gummow J and Callinan J, and possibly Hayne J, were inclined to favour the approach of Stephen J in Caltex Oil in which his Honour "isolated the number of 'salient features' which combined to constitute a sufficiently close relationship to give rise to a duty of care owed to Caltex for breach of which it might recover [quaere for] its purely economic loss" (Caltex Oil (1976) 136 CLR 529 at 576 - 577), though there should be "an allowance for the operation of appropriate 'control' mechanisms" (Gummow J). Callinan J adopted the prediction of Stephen J that the law was still developing in a somewhat piecemeal fashion. 20 The plaintiff, to establish the duty alleged, relies on the College being the nationally recognised body for setting the standards and administering the exams required to allow recognition and registration as a specialist in Radiodiagnosis, permitting eligible candidates to sit for exams, conducting such exams and the plaintiff sitting for the exams. The College effectively determines whether a candidate will be able to practise as a specialist radiologist. As mentioned, there is an allegation of a duty to take reasonable care to avoid foreseeable harm to candidates in the form of wrongfully grading the candidate as failed. A little later it is alleged that the College negligently failed the plaintiff. The Particulars given in paragraphs 9, 13, 14 and 15, if that is what they be, are manifestly inadequate. 21 Many of the paragraphs in the PFASC relate to denials of natural justice and procedural fairness. 22 There is insufficient alleged in the PFASC to support the existence of a duty of care on the part of the College to the plaintiff.

At a glance

Court

Decision date

Before

Source

Judgment (41 paragraphs)

Parties

Cases Cited (4)