- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Maguire v Leather  QSC 164
JOHN PATRICK MAGUIRE
SC No 2570 of 2005
Supreme Court of Queensland
13 July 2007
12, 13 and 14 June 2007
Judgment for the defendant
Professions and trades – Lawyers – Solicitor and client – Duties and liabilities to client – Obligations of solicitors – Allegation of negligence – Failure to properly investigate and identify appropriate evidence – Failure to prepare or obtain advice on evidence – Causation
Mental Health Act 1974 (Qld) s23
Workers Compensation Act 1916 (Qld) s14B, s14C(7)
Workers Compensation Act 1990 (Qld) s9.12
Defendant: R Morton
Defendant: McInnes Wilson
- FRYBERG J: On 6 September 2001, the plaintiff, Mr Maguire, applied to WorkCover Queensland for assessment of disability. His last employment had been as a transport inspector for the Queensland government, a position from which he had resigned in 1990. At the time of his application he was suffering from chronic paranoid schizophrenia. He had suffered from this condition for a number of years and he continues to do so. He claimed it arose as a result of stress in the course of his former employment. He wanted workers’ compensation. On or about 12 February 2002 WorkCover referred Mr Maguire to the General Medical Assessment Tribunal - Psychiatric for assessment of permanent partial disability arising out of his condition. On 14 February a tribunal officer notified Mr Maguire of the referral by letter addressed to his home and forwarded to him a copy of the reference together with copies of the documents to be forwarded to the panel appointed to hear the matter.
- At all material times the defendant was a solicitor at the firm of Dale and Fallu at Ipswich. On 15 February 2002, Mr Maguire retained him to provide all relevant advice and to act in relation to the application. The application was heard on 26 April. It was unsuccessful. The Tribunal found that Mr Maguire’s chronic paranoid schizophrenia was due primarily to underlying constitutional factors. It accepted that there had been some aggravation of his psychological problems related to work factors, but found that this had now ceased. A subsequent application to reopen the decision was equally unsuccessful.
- Mr Maguire now sues Mr Leather for negligence. He alleges that his application failed because Mr Leather:
“[a]Advised the Plaintiff that the reports of psychiatrist Dr. T. Stedman dated the 4th February 1994 and Dr. K. Piaggio dated 18th October 2001 favourable to him when that was clearly not the case.
[b]Failed to advise the plaintiff about the evidence that he reasonably needed to place before the said Tribunal in order to have the best chance of securing a favourable decision from that Tribunal.
[c]Failed to advise the Plaintiff that he needed to place before the said Tribunal further medical evidence from Dr. T. Stedman and Dr. K. Piaggio. Psychiatrists, and/or from his general practitioner and/or from other medical practitioners who had treated him at an earlier time concerning his state of health prior to the incident in June 1990 and concerning the onset and cause of his psychiatric condition at about that time.
[d]Failed to obtain or seek to obtain available medical evidence of the Plaintiff’s condition to health prior to the incident in June 1990 and concerning the cause and onset of his said psychiatric condition at about that date.
[e]Failed to place any or any adequate available medical evidence before the said Tribunal in support of the Plaintiff’s said application. Re: Klug’s report dated 25th March 2004.”
His case is that his condition did not exist before the incident (or at least that in the absence of negligence there would have been no evidence that it existed) and that had Mr Leather properly discharged his retainer, the Tribunal would have so found.
- Mr Maguire claims damages. He pleads that but for the negligence of Mr Leather he had very good prospects of obtaining substantial compensation:
“42.On 24 September 2001 the said Stephen Nicola Murphy psychiatrist for Workcover phoned Kym Godfrey of Workcover Ipswich to clarify my said referral.
- During this said phone conversation with Godfrey the said Stephen Nicola Murphy made the said remark, ‘if this is proven this gentleman will receive a huge payout.’
- This said statement by Murphy clearly shows if said Leather had shown duty of care and was not negligent the said Plaintiff would have received the huge payout as stated by the said Stephen Nicola Murphy psychiatrist for Workcover.”
He calculates the damages in this way:
“21 years averaged @ $43,000 a year for said wages= $903,000
Said Superannuation= $350,000
The two said amountsTotals= $1,253,000
Minus Disability Pension @ 16 years @
$4,420.0 a year.= $70,720
30% of this amount= $1,182,280
Approximately the said amount= $350,000”
- It will be seen from the foregoing summary that a central issue in the case is Mr Maguire's psychiatric condition prior to the incident at work. In assessing that, it is necessary to consider his history, both before and after the incident at work.
Mr Maguire's history
- Mr Maguire was born on 20 April 1951. His childhood and development were apparently normal. He was educated at the Christian Brothers College but left school at the age of 15. He obtained employment as a Lad Porter with Queensland Railways in 1967. Medical examinations in that year and in 1970 confirmed his fitness for that position and asserted him to be (among other things) in sound mental health. His younger brother died in a drowning accident in 1971 and his father died, accidentally as I understand it, shortly afterwards. He was eventually promoted to stationmaster, but in 1973 resigned and obtained employment as an Inspector with the Department of Transport. He was employed at weighbridge checking stations where his job involved inspecting heavy vehicles. He married in 1974 and his two children, Vanessa and Anthony, were born within about three years of his marriage.
- From about 1979 or 1980 the Maguire family doctor was Dr G J Cruickshank, who practised in Ipswich. In 1981 Mrs Maguire won a dishwasher in a competition sponsored by New Idea magazine. Shortly thereafter the family contracted giardia, although it was not diagnosed for several weeks; the process involved a number of blood and faeces tests. They were treated with a drug called Flagyl but continued to have diarrhoea and recurrent abdominal pain. Dr Cruickshank referred the children to Dr McGregor, a paediatrician. He saw them on about 5 September 1981. In the meantime the family ceased using the dishwasher, believing it to be the source of the trouble. Dr McGregor observed nothing abnormal about the children but was impressed by the parental anxiety. He spent some time reassuring the parents that the children were healthy and prescribed Metamucil and a normal diet. When he reviewed the children five days later they were asymptomatic and there was an obvious reduction in family tension. He suspected that the diarrhoea was probably exacerbated by parental apprehension and that it settled with reassurance.
- In about 1986 Anthony, who would then have been about nine, suffered from inflamed and swollen eyes (or perhaps one eye) three or four times over a period of four to six months. He was taken to Dr Cruickshank who treated the condition, apparently successfully. He had not previously suffered from this condition and it did not recur.
- From 1982 until early 1990 Dr Cruickshank prescribed two drugs for Mr Maguire: Serepax 30 mg twice a day and Stelazine 1 mg twice a day. Dr Cruickshank was uncertain whether this treatment was given regularly or continuously over that period, but I am satisfied that it was given at least for prolonged periods and for a very substantial part of the years of treatment. Dr Cruickshank swore that he prescribed those drugs for anxiety state and nervous dyspepsia respectively, not for paranoia or schizophrenia. That evidence was vigorously challenged in cross-examination on behalf of Mr Leather.
- Dr Cruickshank's notes for the period have long since been destroyed, but he was able to refer to a letter which he wrote to the Department of Transport on 10 January 1990. His evidence was based on that letter. It was challenged on four bases:
- In 1995 he told Dr Piaggio in a telephone conversation that “the use of Stelazine was more for paranoia than the stomach upset which he told the plaintiff it was for (to help keep him compliant with the medication)”
- In a pleading delivered on his behalf as late as February this year in an action in which he is being sued by Mr Maguire, he asserted the substantial truth of what he said to Dr Piaggio
- Prolonged use of Stelazine was consistent only with treatment of paranoia
- The 1990 letter was simply an attempt to assist Mr Maguire in relation to his employment.
The telephone conversation
- The words quoted above were attributed to Dr Cruickshank by Dr Piaggio, Mr Maguire’s treating psychiatrist, in 2001 on the basis of notes made in 1995, and Dr Cruickshank accepted that he probably said words to that effect. There seems no doubt that he did so. However Dr Cruickshank asserted that what he told Dr Piaggio was not correct. He explained that at the time he spoke to Dr Piaggio he did not have access to his notes or even to the 1990 letter. He understood that Dr Piaggio was going to have the conversation confirmed after he (Dr Cruickshank) looked at the available information, but it seems that all that happened was that he sent a copy of the letter to Dr Piaggio. Apparently he had not treated Mr Maguire since late 1990 when he had caused him to become a regulated patient under the Mental Health Act 1974. By 1995 he knew that Mr Maguire had suffered a psychosis for a number of years and surmised that he must have confabulated the period of the psychosis with the period of the treatment during the telephone conversation. In fact he had not diagnosed psychosis and had not prescribed Stelazine for that reason.
- Dr Cruickshank's evidence was to some extent confirmed by Dr Piaggio. He testified that Dr Cruickshank said that he would send Dr Piaggio the information, which included a copy of a letter which he wrote to the Transport Department at the relevant time.
- The action referred to in cross-examination was brought by Mr Maguire against Dr Cruickshank and Dr Piaggio. In para 15 of the amended statement of claim Mr Maguire alleges:
“The defendant Cruickshank in a telephone conversation with the said defendant Piaggio stated ‘Stelazine was prescribed more for paranoia than the stomach ailment that I, said plaintiff, was told it was prescribed for’ (referred to Piaggio’s said report dated 18 October 2001 page to paragraph 3.) This paragraph highlights the said negligence of defendant Cruickshank and his no ethical standards.”
A joint defence was delivered on behalf of both doctors. It contained the following response to that part of the pleading:
“The first and second defendants denied the allegations of negligence in para 15 of the amended statement of claim and are unable to admit the same because whilst the said conversation occurred what was said by the first defendant [Dr Cruickshank] to the second defendant was at least substantially accurate and reflected the first defendant's best recollection of circumstances many years before and was not material to any outcome.”
- Up to the time when he gave his evidence Dr Cruickshank had seen his solicitor only once, and that was in August 2004. He then provided her with comments on a letter which she had, presumably from Mr Maguire and, it seems, on the original statement of claim. He had never seen the defence delivered on his behalf. The meeting had been a lengthy one and he could not recall if the defence shown to him during his cross-examination corresponded to what he had told the solicitor.
The use of Stelazine
- Mr Maguire tendered a document which he asserted was an extract from MIMS given to him by his chemist. He said it was the entry for Stelazine. It is incomplete and the heading is missing. It refers to Stelazine but it also refers to other drugs. I am not satisfied that it should be relied upon as evidence that Stelazine should not be used for more than 12 weeks on patients with non-psychotic anxiety disorders. Dr Klug, a psychiatrist, gave evidence that in his opinion it would be unlikely that Stelazine would be prescribed over a period of eight years for dyspepsia-like symptoms, but he resisted the suggestion that it was primarily an antipsychotic. On the other hand Dr Kirkup, a psychiatrist, testified that Stelazine would be quite appropriate for an anxiety-related abdominal upset, even though it was primarily used as an antipsychotic. He said it would be unlikely to be prescribed for that reason for 10 years. Dr Stedman, also a psychiatrist, initially expressed surprise at the content of Mr Maguire's document, but in the end agreed that it sounded right. Dr Cruickshank said that the dosage prescribed (1 mg twice a day) was a low dose; the average would have been in the vicinity of 10 mg. He denied that Stelazine should not be prescribed for non-psychotic anxiety disorders for more than 12 weeks; in his view it was acceptable to continue treatment with it provided the doctor excluded conditions for which it would be unwise to continue its use. He did not agree that it would be most unusual to prescribe it for a matter of years for anything other than psychotic problems.
The 1990 letter
- I shall describe the circumstances in which Dr Cruickshank came to write his 1990 letter below. Toward the end of Dr Cruickshank's evidence, when the defence tendered exhibit 7, I became concerned that counsel intended to ask me to infer that Dr Cruickshank's letter was a sympathetic one designed to assist Mr Maguire to keep his job, and that I should for that reason discount the weight I give it. When counsel accepted that this was the intention, I invited him to put the propositions squarely to the doctor. The following passage ensued:
“What I'm suggesting, doctor, is that by 1990 you were prescribing Stelazine to this man for paranoia type symptoms and you can comment on this - both of these propositions, please - and that there was no reason in this letter for you to disclose to the department that aspect of your patient's condition?-- When I wrote this letter on the 10th of January 1990, I was not aware the patient had paranoid symptoms. The letter was in regard to his competence to drive, knowing that these medications do have effects that, on some occasions, can impair one's ability to drive; but my clinical judgment was, bearing in mind his previous history, the fact that he had no impaired cognition, that he didn't take excessive amounts of these tablets, and that he had been on them off and on for some time, that they didn't impair his driving.”
Conclusion regarding Dr Cruickshank's prescriptions
- I am satisfied that Dr Cruickshank's evidence was truthful and correct, and that the prescription of Stelazine was for the purpose specified in the 1990 letter. I am satisfied that Dr Cruickshank observed no sign of paranoia up to the time he wrote that letter. I found his explanation of his conversation with Dr Piaggio credible and can easily understand how after five years and with no notes or records to refresh his memory, he became confused. He may also have agreed with Dr Piaggio's diagnosis with the benefit of hindsight. Dr Piaggio's evidence suggests that during the conversation Dr Cruickshank thought that the letter would confirm what he was saying.
- Having regard to the circumstances in which instructions for the notice of defence were taken, to the fact that it was a joint defence and to the imprecision of both the statement of claim and the defence, I do not think the defence detracts from his evidence.
- Whatever might have been the normal practice among psychiatrists regarding the use of Stelazine, Dr Cruickshank saw no reason not to use it for the purpose about which he gave evidence. I do not think his evidence in this regard was false.
- I am satisfied that the 1990 letter set out the doctor’s honest opinion and stated the facts as he knew them. It was not designed to conceal the existence of paranoia from the Department of Transport. I think it is unlikely that Dr Cruickshank would have agreed to wean Mr Maguire from Stelazine (as he did) had he suspected that Mr Maguire suffered paranoia.
Continuation of the chronology
- In 1988 the government closed all heavy vehicle inspection stations. Staff were redeployed to mobile patrols. They worked in groups of at least two. By the end of the following year some of Mr Maguire's work partners had expressed concern about his performance to the Department. On 21 December 1989 the Acting Director General wrote to Dr Cruickshank:
“Concerns on the part of four former work partners of Mr. Maguire have recently been raised with Mr. Maguire’s superiors. The concerns are in respect of their perceived lack of judgement on Mr. Maguire’s part to safely carry out his role as an Inspector with the Transport Operations Division of this Department. Some of the major duties associated with the role of Inspector include long range driving and roadside interceptions of heavy vehicles. I have also attached for your further information a position description of the role of Inspector.
It is the view of Mr. Maguire’s previous work partners that the medication he is presently taking, affects his alertness and concentration whilst driving and his judgement of speed and distance when undertaking kerbside interceptions of heavy vehicles. They further report that on occasions, Mr. Maguire whilst driving, fails to take notice of road signs and other traffic and that when signalling heavy vehicles to stop for kerbside inspection, he has not always given the driver adequate notice to stop. Drivers are thus required to brake heavily, with resultant dangers to Mr. Maguire, the truck driver and other road users. Whether or not Mr. Maguire’s actions are affected by medication alone, does not detract from the seriousness of the situation.
I would be pleased if you could provide me with a report which would address any medical or other reason which would adversely affect Mr. Maguire’s ability to carry out the duties of his present position. As an interim arrangement, Mr. Maguire has been allocated office duties until this matter can be properly assessed. He has also been given an assurance that his job security is not at risk.The current action seeks only to ensure that the personal safety of Mr. Maguire and others is not jeopardised by any medical condition for which he may be receiving treatment.”
- On 10 January 1990 Dr Cruickshank replied as follows:
“Mr. John Maguire has been treated by me for ten years. Over the last eight years he has suffered an anxiety state related to the sudden death of his father and brother and also nervous dyspepsia. He has been treated with Serepax 30 mg twice a day for his anxiety state and Stelazine 1 mg twice a day for his nervous dyspepsia.
Mr. Maguire was advised that these medications may possibly cause drowsiness and that his competence in driving and working with machinery may be diminished. There has, however, over the years when he has been monitored regularly, no evidence that he has suffered from this unwanted effect. There has never been any evidence that he has misused his tablets and as far as I am aware he has not ever been involved in any accidents or driving offences.
Mr. Maguire did consult me about this matter on the 3/1/90 and his medication is being withdrawn. Mr. Maguire suffers no other medical condition which would affect his ability to carry out his duties in his present position.”
- Mr Maguire was in fact weaned from the drugs, but that did not resolve complaints about his performance. He told Dr Clarke, a psychiatrist, in March 1991 that in early 1990 he had returned to the road under supervision, but could not understand how varying reports could have been given about him. He admitted some difficulties (roundabout driving and missed log book breaches). He told her that he had refused to do further tests. He said that he had gone to the union for assistance, but that they did not help, which made him angry. He told her that he began to “get shakey” and “have awful feelings in the chest”. He tolerated this for three weeks but resigned in June 1990. In December that year Mr Maguire wrote, “I was unable to cope with the situation of being constantly monitored and the intense pressure I was being subjected to, therefore, on the 18th June I submitted my resignation to the Department.”
- I have taken that description from near-contemporaneous documents because I think it is likely to be more accurate than versions given much later by Mr Maguire. It is convenient to compare that description with another, of the same period, given to Dr Murphy by Mr Maguire in September 2001:
“However when he resumed duties he was not deployed in his normal position, but given office duties, which he was upset about.
He consulted his local Member of Parliament and his union to try and address the situation, however was not successful in that regard. Finally in May of 1990 Mr Maguire was allowed to return to work only if he was a passenger working with the men whom he had lost trust and faith in and who Mr Maguire believed had told vicious lies about him. He stated he reluctantly he went back to work for about a month, however began to suffer from increasing anxiety and episodes that appear to be panic attacks while he was at work. He felt that his work was significantly affecting his life at that time and he left work on 18/06/90.”
- By the end of 1990 Mr Maguire's condition had deteriorated. In November of that year he was admitted to the Barrett Psychiatry Centre. He had been violent. The summary of his admission reported that his behaviour deteriorated “following loss of his job at the Main Roads Department”. He “felt persecuted by a group of influential people whom he believed were responsible for his retrenchment”. A provisional diagnosis of “Paranoid psychosis? Schizophreniform in nature” was made, with a differential diagnosis of “delusional disorder”. Following his discharge in December he saw Dr Alan Freed, a psychiatrist, who thought there were both clinical signs of some organic cerebral loss and of hypomania.
- At about this time Mr Maguire applied for workers’ compensation. His statement quoted above was made for this purpose. WorkCover referred him to Dr Clarke for examination. In April 1991 she reported:
“I did not find any obvious psychiatric illness at the time of interview. He demonstrated a rather passive-aggressive attitude with some paranoid traits. He tends to externalise his problems - I question if everyone around him is lying as he seems to feel they are. These personality traits tend not to change over time.”
- The claim for workers’ compensation was heard by a General Medical Assessment Tribunal on 30 July 1991. The Tribunal determined that the matters alleged in the claim constituted an injury the nature of which was an adjustment disorder with anxious mood aggravated by work circumstances. It determined that the resulting incapacity for work was total but temporary. It recommended payment of compensation in respect of the period of two months after Mr Maguire ceased work and noted that he “felt better four weeks after ceasing work”. In fact, Mr Maguire never worked again.
- In February 1994 Mr Maguire was again admitted to the Barrett Psychiatry Centre. He was admitted under police escort and his sister-in-law gave a history that he had been bashing his wife and keeping her locked in the house. The sister-in-law reported that he believed his family was poisoning him. Mr Maguire confessed that he had struck his wife several times in the preceding three or four weeks and also complained of a number of anxiety symptoms such as palpitations, which he attributed to his wife putting poison in his food and to his mother and wife plotting against him. A diagnosis of delusional disorder (paranoid type) was made. His condition improved with medication and he was discharged after almost four weeks in hospital.
- The information in the preceding paragraph has been taken from a discharge summary prepared by a psychiatric registrar at the Centre, Dr P Van de Hoef, who worked under the supervision of Dr Stedman. That document plays an important part in the case against Mr Leather. It does so because as part of the personal history, the following passage appears:
“In 1980 his wife won a dishwasher in a competition, soon after some family members contract had giardia. He blamed the illness on the dishwasher and on Kerry Packer (the owner of the New Idea who had organised the competition).”
- By 1995 Dr Simon Lawton had become Mr Maguire's local doctor. In June of that year Mr Maguire was readmitted to the Barrett Psychiatric Centre because he was becoming angry with his wife; she was afraid he would “blow out” like he did in 1994 when he hit her under the paranoid belief she was poisoning him. Dr Lawton referred Mr Maguire to Dr Piaggio with “a paranoid disorder”. He had a substantial initial consultation with Dr Piaggio on 11 July, for which he was given day leave from the Barrett Centre. Mrs Maguire was present for part of the consultation. Dr Piaggio made extensive notes and gave evidence in the trial. At the end of that meeting, indeed after Dr Piaggio had signed off his notes, drafted a letter to Dr Lawton and read it to the Maguires, there was further conversation. Dr Piaggio inserted a cramped note of that conversation at the foot of the last page of his notes for that day. Mr Maguire told Dr Piaggio of the dishwasher which was won in 1981. He blamed the dishwasher for the family becoming ill with giardia. He told Dr Piaggio that he thought Greg Chappell, whom he called a grub, had something to do with it, as revenge for a comment that he shouted out at the cricket. He did not mention Kerry Packer.
- Dr Piaggio then asked if there was anything more they would like to add. According to the notes Mr Maguire or his wife told him that Anthony had bad eyes about nine years ago and that Mr Maguire thought it could have been related to eating chocolate ice cream. Dr Piaggio made that note under the heading “*Some history of ‘paranoid ideas’ (eccentric ideas).” In her evidence Mrs Maguire could not remember either of them saying that, but she did not deny that it was said. She explained that she and her husband thought that Anthony might have had an allergic reaction to the food colouring in the ice cream. The swelling and redness had subsided upon the application of cream prescribed by the doctor. In cross-examination she supposed that if the topic had been raised, she would have told Dr Piaggio that Mr Maguire blamed the problems with Anthony’s eyes on his eating chocolate ice cream.
- I am satisfied that Dr Piaggio was told that Anthony had bad eyes about 12 years earlier and that the Maguires thought it could have been related to eating chocolate ice cream. It is probable that it was Mrs Maguire who said that. She said it as the consultation was concluding and for the sake of completeness, in response to a question asked of her. It had no particular significance for her and she did not remember the exchange. She expressed herself in the abbreviated (perhaps careless) terms recorded by Dr Piaggio and did not explain what she meant by “bad eyes”, nor the allergy theory.
- The evidence is silent as to Mr Maguire's progress between 1995 and 2000. In May of the latter year Vanessa saw Dr Lawton. She was evidently concerned about her father's condition and Dr Lawton reassessed him. He diagnosed chronic schizophrenia with no insight and paranoia with some violent outbursts, noting that Mr Maguire was not taking his medication. He arranged for an admission to the Mental Health Unit at Ipswich Hospital. There Mr Maquire was seen by Dr Kirkup, a psychiatrist. He noted that when unwell, Mr Maguire developed persecutory delusions and believed himself to be the victim of a conspiracy to defraud him by manipulating the results of greyhound and horse races. His spending on these pursuits was distressing his wife. Dr Kirkup noted at the time, “I believe it is in the best interests of Mr Maguire's own welfare to remain liable to detention under the Mental Health Act. He is aware of my decision and agrees it will help with compliance.” After his discharge from the hospital he continued to be seen by Dr Piaggio.
The 2001 psychiatric reports
- Mr Maguire's application to WorkCover in September 2001 lead that organisation to arrange an appointment “for an independent medical examination” with another psychiatrist, Dr S Murphy. Mr and Mrs Maguire saw Dr Murphy on 21 September. The consultation did not go well:
“On entering the consulting room he sat in an uncomfortable and rather anxious manner in the chair and at no time during the interview did he relax. He remained hypervigalent and anxious during the interview. His behaviour as the interview progressed became increasingly agitated and towards the end of the interview became hostile and abusive, believing that I had made negative comments against his psychiatrist. Despite my reassurance and his wife's reassurance that this was not the case he firmly held this view, making comments to the receptionist on the way through the consulting room about my incompetence. His affect was tense, hostile and at times aggressive. His mood was euthymic and there was no evidence of depression. There was no evidence of gross thought disorder, although Mr Maguire was pedantic and at times fixated on certain topics. There was no evidence of delusions within the interview and he denied perceptual disturbances, cognitively he appeared intact, his insight appeared very limited and his judgment was exceedingly poor especially in relation to his judgment of others.”
- Dr Murphy did not have discharge summaries in respect of any of Mr Maguire's hospital admissions, nor did he have a report from the treating psychiatrist. Subject to those limitations he diagnosed chronic paranoid schizophrenia. He noted that Dr Clarke had held the opinion in 1991 that Mr Maguire did not have a psychiatric illness and that his problems were predominantly personality-based. Reporting on some specific issues raised by WorkCover, he wrote:
“The relationship between the condition and the employment
Again this question would be best answered after viewing the discharge summary from the hospital in 1990. Mr. McGuire reports that he received the diagnosis of paranoid schizophrenia during that admission, however this was not the diagnosis given by Dr Clarke in 1991. The difficulties Mr. McGuire may have been having in the middle of 1990, may well have been part of a prodromal phase of his impending psychiatric illness or as Dr Clarke outlines, they may represented difficulties that arose due to personality problems. These questions would best be answered by looking at the information from the hospital. Whichever is the case, it does appear that the issues that arose within the workplace in the beginning of 1990 predominantly the conflict and mistrust between Mr. McGuire and his workplace colleagues eventually resulted in increasing anxiety within Mr. McGuire and him ceasing work.
Is employment the major significant factor.
From the information provided to me there appear to be no other contributing factors happening at or around 1990 that are relevant to Mr. McGuire’s situation at that time or now.”
- WorkCover also sought a report from Dr Piaggio and that was provided on 18 October 2001. The first page summarised some of Mr Maguire's history and is not controversial. However on the second page, Dr Piaggio wrote:
“The reason for most of his admissions from the 1994 admission is that he would stop his medication. I understand that Dr. Cruickshank had reduced his medication – Stelazine – in January 1990, because this man’s supervisors were concerned that his behaviour at the time was related to his medication. It is reasonable to assume that the 1990 admission was also due to not being ‘protected’ with anti-psychotic medication.
His wife reported at the first interview with me that the paranoid symptoms started in 1988 when this man’s job changed to being part of a mobile traffic inspection unit. It was at that time there began to be complaints about this man’s driving by people he had thought were ‘friends’ of his. However, there were ‘strange ideas’ probably as far back as 1986, when he attributed chocolate icecream as the cause of his son’s ‘bad eyes’. Dr. Cruickshank, in a telephone conversation, indicated that the use of Stelazine was more for paranoia than the stomach upset this man was told it was for (to help keep him compliant with the medication). (It would have also settled his stomach if that was related to his agitation).”
- The first of those paragraphs was helpful to Mr Maguire's case. That was because there were potentially at least two causes for the onset of Mr Maguire's chronic condition in late 1990 and 1991: the stress under which he was placed at work and being weaned off Stelazine. The evidence is uncontroverted that Stelazine, even in small doses, was capable of masking the symptoms of paranoia. Dr Piaggio made the point that the decision to cease its use was work related.
- It is otherwise with the last three sentences of the second of those paragraphs. They contained evidence which, if accepted, pointed strongly to the probable existence of symptoms of paranoia as early as 1986 or even earlier. I am satisfied that such a conclusion would have been an error. At least to a lay person there was nothing strange or irrational in considering or even believing the possibility that the inflammation in Anthony's eyes was the result of an allergic reaction to a food additive. Had Dr Piaggio understood that this was the point which Mrs Maguire was making, he would not have written what he did. It seems plain that when writing in 2001 he took the words “bad eyes” to refer to something such as poor eyesight. The error is perfectly understandable. Mrs Maguire probably did not explain herself in the first place, given the circumstances of the conversation; some six years had elapsed in the meantime; and perhaps Dr Piaggio was influenced by what Dr Cruickshank had told him.
- It is unclear whether Dr Piaggio had Dr Cruickshank's 1990 letter when he wrote his report and, if he did have it, when he received it. It is clear that if he did have it, he did not understand it to have been sent to him for the purpose of correcting what Dr Cruickshank said on the telephone in 1995. That conversation therefore went forward to WorkCover uncorrected.
Mr Maguire's pre-existing condition
- It is convenient at this point to deal with the question of Mr Maguire's condition before he suffered the stress incidents at work in late 1989 and 1990 and before he was weaned from Stelazine in early 1990.
- Only three matters supported a conclusion that Mr Maguire displayed overt symptoms of paranoia before late 1990. They were first, the suggestion that Dr Cruickshank had diagnosed that condition or at the least observed symptoms of it; second, irrational thinking in 1986 related to the so-called chocolate ice-cream incident; and the third, the so-called dishwasher incident in 1982. I have already made findings in relation to the first two of these. I am satisfied that Dr Cruickshank made no such diagnosis and saw no such symptoms. The so-called chocolate ice-cream incident was completely innocent. It remains to deal with the dishwasher incident.
- I have outlined the basic circumstances above. No evidence was called before me to establish whether it is possible for a dishwasher to harbour the giardia parasite or whether the parasite can survive the operation of a dishwasher or whether it can be transmitted to humans via washed plates or glasses used to consume food or drink. In the absence of evidence I am not prepared to find that such a route of infection is scientifically impossible. Moreover many people much better educated than the Maguires have been guilty of reasoning post hoc ergo propter hoc. It is not altogether surprising given the coincidence between the times of onset and cessation of the use of the dishwasher and the illness, and the effluxion of five or six days after taking Flagyl without any improvement in their condition, that they should have concluded that the former caused the latter. That does not evidence paranoia. No one has suggested that Mrs Maguire was psychotic because she accepted this view.
- The same cannot be said for Mr Maguire's perception of the person responsible for the presence of giardia in the dishwasher. To regard Greg Chappell, Kerry Packer or (as Mr Maguire asserted in his evidence) Rupert Murdoch as personally responsible is irrational. However there is no evidence that Mr Maguire alleged before 1994 that any of those persons was responsible, and his perception kept changing thereafter. By then he was undoubtedly in the florid phase of the disease. Had such an allegation being made Dr McGregor would surely have remembered and recorded it. Dr Cruickshank would probably have remembered such a statement and his diagnosis would probably have been different.
- Dr Kirkup was cross-examined about the matter on behalf of Mr Leather:
“Doctor, I want you to ask you to assume something for me, please. Assume that, in 1981, Mr Maguire’s wife won a dishwasher in a competition run by New Idea?-- Mmm-hmm.
Assume that, after the installation of the dishwasher in the family home, all members of the family contracted Giardia?-- Yes?
If it were the case that Mr Maguire believed at the time that Rupert Murdoch, the publisher of New Idea, was to blame or was implicated in the Giardia being put into the dishwasher in order to affect Mr Maguire's family-----?-- Yes?
-----does that suggest a psychiatric illness?-- Yes, it does. Am I allowed to qualify that answer?
Yes, please?-- The only question I'd ask is when he came to that conclusion. If he came to it then, then I would say the mental illness was present then because that's certainly a delusional interpretation of the facts, rather than a scientific one. The only qualification would be perhaps he's formed that conclusion, that delusional conclusion, at some later stage.
Sure. If he believed, though, at the time that that was the case, then he clearly has a psychosis of some form, doesn't he?-- I would agree that it doesn't match the scientific reality of the situation and it's hard to make any sense of, other than by using the term ‘delusion’.”
Dr Kirkup testified that he had no evidence that Mr Maguire had a pre-existing illness.
- Dr Piaggio also gave evidence on the question. After overruling a defence objection to my questions on the ground of irrelevance, I had the following exchange with him:
“HIS HONOUR: I was asking you if you could, just on the hypothesis that the drugs were being prescribed for these other conditions not in the prescribing doctor's mind related to paranoia at all, and assume also that the prescribing doctor had seen no sign of paranoia and had no thought of paranoia?-- Right.
Assume those things?-- Yes.
What other evidence can you see to summarise, to conclude that there was paranoia before the late 1980s?-- Well, there is one major one and that is the story about the - attributing Greg Chappell to the cause of the giardia in the dishwasher incident, being dated in 1981 or thereabouts, 1982. There is - that's the information that was given to me, but I would have thought yes, that tended to support a history of some paranoid thinking.
This is said to you when?-- In '95. So he is giving me history of the past.
So that is evidence that he thought that's what he was attributing in 1995?-- Well, that is absolutely true.
And it is common ground - it is plain and it is common ground to everyone that by mid 1995 he had paranoia?-- Yes, yes.
How does that help you infer paranoia in the 1980s?-- It doesn't absolutely support it because of the issue, as you have just identified, that there is what is called retrospective falsification. You can in fact attribute something at a later time as if it did occur at that earlier period.
If you found that on other occasions he's variously attributed it also - not also, but not to Greg Chappell but to Kerry Packer?-- Yes, I saw that.
And Rupert Murdoch?-- Yes.
Variously, all of these occasions being after 1990?-- That's correct.
Does that tend to indicate that this retrospectivity might in fact be in play?-- It could do. It could do. And I guess what, from the point of view of making these decisions you look at, I suppose, the soft signs. I believed I had had collateral information from doctor, but that is - we are dismissing that for the moment in this hypothetical argument.”
I note also that in his 2001 report to WorkCover Dr Piaggio did not cite the dishwasher incident as an example of strange ideas.
- In my judgment the dishwasher incident does not support a conclusion that Mr Maguire displayed overt symptoms of paranoia before late 1990. He was, in other words, relevantly asymptomatic until that year.
- A prodrome is “an early manifestation of impending disease, before the specific symptoms begin”. Schizophrenia is a prodromal disease. That led Dr Piaggio to another suggestion about Mr Maguire's condition before 1990:
“The other factor is to do with my - with the knowledge of schizophrenia that I have both from the point of view of my own experience, but also from the literature, and a presentation for the first time at 40 is very unusual. There is a prodromal phase and there is a duration phase that occurs many years before the person actually comes forward with the florid symptoms that other people pick up, and the normal time for developing symptoms is between the teenage years and the late 20s and the later it is that this disease develops, the more intact the person's personality is, and the more aware they are of how they have to guard what they say. And so what happens then is that they could appear for years to people they run into not to be different, although they might have a few eccentric ideas. But ultimately this is a prodrome and that can lead gradually and be triggered then by a major stress - a stress that the person perceives as major, that will tip them over into a more florid episode.
If I translate that into lawyer talk?-- Yes.
Is that what might be described as being asymptomatic up until - or at least to a non-expert anyway, being asymptomatic up until the time when the incident that pushes them over the edge occurs?-- Yes. It would take somebody who would know that this could be a prodrome for somebody to pick it up. I mean, we are being advised to pick up these things earlier and earlier because of the effort it is to treat people, so more people are being taught how to pick this up, but yes the nontrained person would not have picked a lot of these people, yes.
And if that were so then it would really be the major incident that triggered the - what you called I think the florid version of the disease?-- That's right, and that is what I tried to address in that second letter to WorkCover to try and highlight that that is probably what was the case for John.”
That was the same point which Dr Murphy raised in his report to WorkCover.
- There was another possible reason for Mr Maguire having been asymptomatic before 1990. This was Dr Kirkup under cross examination on behalf of Mr Leather:
“MR MORTON: Thank you, your Honour. Doctor, could you assist me with this too, please: if it [Stelazine] were in fact originally prescribed for a stomach upset-----?-- Yes?
-----but continued to be prescribed for 10 years, is it the case that it would nonetheless provide anti-psychotic protectional coverage, probably for want of a better word?-- Yes. I mean, there's probably an added comment here worth making.
Yes?-- That is that in an illness such as schizophrenia, even in very early stages before the full diagnosis is made, there's a lot of evidence to suggest that giving a low dose anti-psychotic long-term in quite protective and is in fact the right thing to do. Even if symptoms do abate, it seems to protect to a certain extent against long-term brain damage which does occur with the illness.
Can I ask you this: if, after it being prescribed for 10-odd years or so, it was withdrawn-----?-- Yes?
-----and in fact the patient was prone to a psychosis or the development of it, a development of schizophrenia, would you expect to see that condition manifest itself after the withdrawal of the drug?-- Yes, that would be quite likely. It might take weeks to months, but I would expect a relapse of the condition if the predisposition for development of that condition were already there, and that predisposition, as far as we can tell scientifically, is an inborn predisposition rather than something acquired later in life.”
That was not the only evidence to like effect, and as I have already stated, it was uncontroverted.
- It follows that on the evidence before me, Mr Maguire was probably in a position of considerable vulnerability to the onset of paranoid schizophrenia, while being free of overt symptoms, before 1990. Severe stress and the withdrawal of Stelazine were capable of precipitating the onset of a more florid version of the disease.
The retainer of Mr Leather
- I described the circumstances of Mr Leather's retainer in broad terms at the outset of these reasons. It is now necessary to descend to a little more detail.
- On 15 February 2002 Mr Leather opened his file and had Mr Maguire complete an application for legal aid. Mr Leather's recollection was that this was also the date on which he went through the medical reports with Mr Maguire. That could well be correct, as the letter sending those reports to Mr Maguire was dated 14 February. Mr Leather formed the view that Mr Maguire had already gone through the reports himself and he discussed them generally with his client. He “certainly didn't go through them with any particular detail”. Mr Leather accepted that he had no occasion [on that day] to review the documents in peace and quiet, make notes and then enquire of his client about any matters noted. In particular he did not notice the inconsistency between Dr Cruickshank's 1990 letter and what Dr Piaggio attributed to Dr Cruickshank in his report to WorkCover. Mr Maguire and Mr Leather had different recollections as to what transpired during the review of the reports. Mr Maguire testified that Mr Leather said that all the reports were favourable to him. Mr Leather’s evidence was that Mr Maguire was particularly upset with Dr Murphy's report, and he pointed out to Mr Maguire that there were aspects of the report which were quite favourable to him. He denied saying that all of the reports were favourable. In cross-examination by Mr Maguire he added that he also said that there was an aspect of Dr Piaggio's report which was favourable. It is unnecessary to resolve that difference, as even on Mr Maguire's version, such incorrect advice by itself could not have caused him any damage.
- Although Mr Leather said that he discussed the medical reports generally with Mr Maguire, he did not suggest that he specifically drew Mr Maguire's attention to those parts of Dr Piaggio's report and the Barrett Centre discharge summary (called during the trial “Dr Stedman's report”) which suggested the existence of paranoid symptoms prior to 1990. He was cross-examined on these matters by Mr Maguire:
“Mr Leather, why didn't you bring that to my attention, both Dr Piaggio's report and Dr Stedman's report?-- I believe that we discussed all reports with you - I discussed all reports with you at our meeting and I believe that your history was your history and that it was factually correct.
Just two minutes ago you said it wasn't favourable, both reports were not favourable. Why didn't you take the appropriate action to rectify Piaggio's report and Dr Stedman's report?-- Because I believed them to be factually correct and I didn't believe that there would be a mistake made by doctors who had been treating you in the past and would have records of your treatment with them.
But where's the evidence that says I had a pre-existing condition, Mr Leather?-- Well, Dr Stedman states that you did based on his report.
But this report's done in 1994. That's post the first Medical Assessment Tribunal. You are well aware of that, aren't you?-- I'm not familiar with what evidence the 1991 tribunal relied upon.
HIS HONOUR: Did it occur to you that it might be desirable to get hold of the evidence that was before the first tribunal?-- No, your Honour.
Do you think you should have?-- I was a bit worried about what I might find.”
- In due course legal aid was granted “to investigate and prepare workers compensation claim for reference to medical board, solicitor only”. Mr Maguire came to see Mr Leather on 25 March 2002 and Mr Leather took a five-page statement from him. It dealt in detail with his upbringing and with the circumstances giving rise to the stress which he suffered at work and to his being weaned from his medication. It did not deal at all with Mr Maguire's symptoms, either before or after 1990, with the accuracy or otherwise of what he was reported to have told the doctors or with his current condition. Asked whether the omission of any reference to the pre-incident medical condition of his client was deliberate, Mr Leather replied, “I thought it was clear from the material that I had that he had suffered a condition prior to late 1980s when he complained of the work-related activities.” That led me to ask him some further questions, part of the justification for which was that Mr Maguire was unrepresented:
“But you had decided, as I understood it, when you reviewed that to run it as an aggravation case?-- That's right.
And I had the impression that that was on the basis that up until - I think you said that you even thought that you might be able to demonstrate that the work stresses caused the condition.You said before lunch, I think?-- Caused the condition at the time of the hearing, which was 2002.
Right. Wouldn't it be inherent in that approach to demonstrate that he was asymptomatic, or largely asymptomatic prior to the stresses at work?-- Well, the only evidence that was available via the material from WorkCover that was basically up to date were the reports from Dr Murphy.
Why not take instructions from your client on the topic?-- He instructed me that he wasn't suffering from any symptoms.
Is that in the statement?-- No, your Honour.
Why not?-- Well, I took that as a given.
When you are doing a personal injury case or any sort of case involving aggravation, isn't the pre-accident condition a significant factor?-- It is.
Isn't it normally something you would want your client's instructions on?-- I accepted the material, rightly or wrongly, that was contained in the material in the reports as showing that my client, Mr Maguire, had suffered a condition at least during the 1980s. I didn't feel at the time that there was any need to expand upon that as it was contained in the medical reports, which I deemed was a factual account from the doctors that had treated him from, in Dr Cruickshank's case at least ten years.
I am sure you wouldn't want to expand upon it. You would want to reduce the impact of it, if anything, I would have thought by showing not just that it was asymptomatic but that he lived a happy and carefree life or whatever the case may be, untroubled by these matters, but there is nothing of that sort of material there?-- No.”
- It seems that Mr Leather did nothing else to investigate the circumstances on Mr Maguire's behalf. He did not speak to either Dr Cruickshank or Dr Piaggio and he obtained no further documents. He did not seek the discharge summaries which Dr Murphy had indicated were necessary in order to give the best answer to the question of the relationship between Mr Maguire's condition and his employment.
The Tribunal hearing
- Presumably legal aid was extended to include briefing counsel to appear at the hearing. Mr Leather prepared a brief to Ms Ryrie of counsel (as her Honour then was) on 19 April and delivered it on 22 April. There were four items in the brief: the reference to the Tribunal and the accompanying documents; the letter from the Tribunal officer forwarding that material to Mr Maguire; Mr Maguire's statement; and a certificate dated 2 December 1988 from the Department of Transport certifying that Mr Maguire had completed the defensive driving course. The first of the documents accompanying the reference was the 1991 reference which in turn purported on its face to have attached (among other things) a copy of the statement from the manager personnel services (Queensland Transport) dated 22 May 1991. That statement was missing. I infer that it was inadvertently omitted from the documents forwarded to Mr Maguire by the Tribunal officer, as in its place was a copy of the letter requesting such a statement. Apparently Mr Leather did not notice the omission.
- Mr Leather spoke to Ms Ryrie on 23 April 2002. She advised that there were reasonable prospects of establishing that there had been an aggravation of an existing condition due to the work situation faced by Mr Maguire in the late 1980s and that she would run the case on that basis. A conference between her and Mr Maguire was arranged for the day of the hearing.
- There was considerable controversy about what happened at that conference. Mr Maguire claimed that when he entered Ms Ryrie's chambers she threw the brief down on the table and said, “Have a look at the brief that Leather has sent me.” He claimed that she said words to the effect of, “These aren't your doctors are they John?” This evidence was apparently led with a view to demonstrating that Ms Ryrie held the opinion that Mr Leather had been negligent, and when she gave evidence Mr Maguire sought to elicit that opinion from her. The admissibility of such evidence is doubtful; but in any event I do not accept that those events occurred. To the extent that they were asked about them, both Mr Leather and Ms Ryrie denied that they happened.
- Mr Maguire claimed (sometimes only from the bar table) that it was at this conference that the significance of the passages in the reports suggesting the existence of psychotic behaviour prior to 1990 was drawn to his attention for the first time. He claimed that he was devastated, realising that he could not win. However Ms Ryrie testified that, while she expressed concern at the difficulty posed by the finding of temporary incapacity by the first tribunal, her opinion was that the Tribunal would find in Mr Maguire's favour. This was confirmed by Mr Leather.
- At the hearing Ms Ryrie argued that the evidence of Dr Murphy demonstrated that everything that had caused Mr Maguire to become ill in 1990 was related to his work. She submitted that the assessment of temporary incapacity by the first board had been shown by the passage of time to be incorrect. She pointed out that he had been coping very well at work even if he had been taking medication and even if he had had some previous problems. She submitted that Mr Maguire had only stopped working and become unable to work because of what had happened to him at work. In short his condition had been aggravated by the stress which he suffered at work and he was therefore entitled to be compensated for permanent impairment. Given that approach, Ms Ryrie did not think that Dr Piaggio's report taken as a whole was adverse to his prospects.
- During the course of the hearing the members of the Tribunal questioned Mr Maguire at length. They asked him about what had happened at work and the effect this had on him, his early childhood and adulthood, his work experiences, his health and that of his family and about the medication he was taking. The hearing lasted 45 minutes, longer than average on Mr Leather's experience.
- The Tribunal issued a decision in writing on the same day as the hearing. It noted that Mr Maguire had a significant past history of psychiatric illness prior to the onset of his work related conflicts. I take this to be a reference to the adjustment disorder with anxious mood found by the first Tribunal. It recorded that the period of work related conflict led to a deterioration in his psychological symptoms and that changes in his medication may also have aggravated some of the problems. It found that he continued to have a range of psychological symptoms consistent with a diagnosis of chronic paranoid schizophrenia and expressed the opinion that this was due primarily to underlying constitutional factors. It accepted that his underlying pre-existing psychiatric condition was temporarily aggravated by work related conflicts. It held that the aggravation of his psychological problems related to work factors had ceased. As a result it found that there was no permanent partial disability resulting from the injury.
- Mr Maguire was very upset by the outcome. He attributed it to the second of the paragraphs in Dr Piaggio's report quoted above and perhaps to some part of the discharge report from the Barrett Centre. He went to see Dr Piaggio and induced him to write a further report to clarify that of October 2001. It recorded that the Maguires had explained the comment about Anthony's “bad eyes”. It also recorded that they challenged the existence of paranoid ideas or symptoms before 1990 and implicitly challenged what Dr Piaggio reported was told to him by Dr Cruickshank. Dr Piaggio recommended that information be obtained from original sources for these earlier times, but apparently nothing further was done. He emphasised that late onset paranoid illness of the schizophrenic type would usually present after a major stress and he identified the stresses at work as that major stress.
- That led Mr Maguire to apply for a review of the Tribunal decision. The Review Panel considered Dr Piaggio's letter but recorded, “Whilst the new medical evidence submitted is relevant to the application so decided, it is not new factual medical data not known about the worker at the time of the Tribunal's decision”. It therefore refused to review that decision.
Assessment of Mr Leather's conduct
- The Tribunal hearing which was the ultimate focus of Mr Leather's retainer was not an adversarial trial. Nonetheless the task of Mr Maguire's lawyers was in most respects similar to that facing lawyers in such a proceeding. That task was to persuade the Tribunal to give Mr Maguire the result he sought. To achieve that outcome ordinarily requires at least:
- identification of the aim
- assessment of the factors bearing upon the achievement of that aim (eg the position, strengths, weaknesses and intentions of any opponent, relevant legislation, issues, nature of hearing, characteristics of Tribunal and so on - the list is not closed)
- identification and assessment of limitations affecting the achievement of the aim (for example time, resources, collateral effects and so on)
- collection of documents relevant to each factor
- ascertaining the facts, both favourable and unfavourable, relevant to each factor
- classification and analysis of the facts and documents in relation to each factor
- identification of the possible approaches which might be adopted to achieve the aim, having regard to that analysis
- selecting the preferred approach in the circumstances
- planning the means by which that approach is to be implemented
- assembling the resources necessary to implement the plan
- executing the plan.
Not all the elements in that list could necessarily be performed sequentially. Some might have involved doubling back - for example analysis of the facts and documents might lead to the collection of further documents or the ascertaining of further facts. Not all lawyers would necessarily perform those elements in the same way or make the same analysis of the facts and documents. Nor would the performance of them be easy. A number involved dealing with Mr Maguire, whose condition created problems. Funds were obviously limited. But in broad terms those were things which Mr Leather had to do to fulfil his retainer.
- I do not propose to examine how Mr Leather might have undertaken his duties in an ideal world. The present action is not a Royal Commission into his conduct of the case. It is confined by the pleadings, especially the allegations contained in para 31 of the statement of claim. Only one of the allegations was an allegation of an act; the remainder were allegations of omissions.
- The negligent act alleged was advising Mr Maguire that the reports of the Barrett Psychiatry Centre (Dr Stedman) dated 4 February 1994 and Dr Piaggio dated 18 October 2001 were favourable to him when that was clearly not the case. I am not satisfied that Mr Leather made any such statements in the bald and undifferentiated way alleged by Mr Maguire. He may well have made some comment about how helpful a part or parts of those reports was to Mr Maguire's case, but it is unnecessary to determine precisely what he said. Even if he said what Mr Maguire has alleged, there is no evidence that his statements caused Mr Maguire to act in any way differently from how he would have acted had the statements not been made. There is no evidence that the making of the statements had any causal relationship with the Tribunal's finding. This allegation cannot advance Mr Maguire's case.
- In the way in which the case has been conducted, the omissions pleaded all relate to the same two reports. Essentially Mr Maguire's complaint is that Mr Leather did nothing to counter the misleading statements contained in those reports, with the result that the Tribunal had before it uncontradicted evidence supporting an inference that Mr Maguire displayed symptoms of paranoia before 1990 (Dr Cruickshank's telephone statement to Dr Piaggio, the dishwasher incident and the ice cream incident). That evidence was relevant because according to the Reference the Tribunal was to determine:
“(i)whether any incapacity for work resulting from the injury -
- is total or partial;
- is permanent or temporary; and
(ii)if the worker has suffered a permanent partial disability resulting from the injury, the nature and extent of the disability”.
- In my judgment it was careless of Mr Leather to allow that evidence to go forward uncontradicted. While there was room for argument about the proper interpretation of “resulting” in s 9.12 of the Workers Compensation Act 1990 (and it seems Ms Ryrie was aware of that), on any practical view of the matter it was very important to ascertain whether Mr Maguire suffered paranoid schizophrenia before 1990, and if he did, how serious it was and what impact the stress event at work had on it. Mr Leather must have known that. Despite this he was content to let the case go forward as an “aggravation case” without any detailed examination of the pre-1990 position.
- Mr Leather read the medical reports provided by WorkCover, but he did not go through them in detail with his client or Mrs Maguire. He should have done so. Doubtless Mr Maguire's condition would have rendered this a difficult process and one which would not necessarily produce reliable information. However Mr Maguire was under medication and I am satisfied that he could have made a useful contribution to the question of his pre-1990 condition. When his statement was taken it should have dealt with that topic. A statement should have been taken from Mrs Maguire; her evidence makes it clear that she would have rebutted the inference to be drawn from the two incidents of 1982 and 1986. Most importantly of all, Mr Leather should have taken the time to read and analyse the medical reports. Had he done so he would have detected the inconsistency between Dr Cruickshank's 1990 letter and Dr Piaggio's report of what Dr Cruickshank said in 1995. That inconsistency cried out for further investigation. Had Dr Cruickshank been approached he would, he said, have refreshed his memory from all available sources and then have provided evidence that his statement to Dr Piaggio was incorrect; he would have affirmed his 1990 letter. With the misleading evidence rebutted Mr Leather could have obtained evidence from another psychiatrist (if necessary) that, as Dr Klug put it, “anxiety state and nervous dyspepsia … are nonpsychotic conditions unlikely to have predisposed Mr Maguire to the development of schizophrenia”.
- Once these steps were taken, Mr Leather could have contacted Dr Piaggio and drawn his attention to the true position. He could also have explained the full circumstances of the ice cream incident. Mr Leather could have contacted Dr Stedman to ascertain whether Mr Maguire's attribution of fault to Kerry Packer as recorded in the 2004 discharge summary was contemporaneous with or subsequent to the events to which it related.
- The errors would probably would have been avoided had Mr Leather taken a step which is both elementary and essential in preparing for the hearing of a contentious matter: preparing or obtaining an advice on evidence. Mr Leather neither prepared an “advice” himself nor briefed counsel to do so. That was negligent. The preparation of such an advice forces legal representatives to identify the issues, identify areas which need further investigation and obtain evidence while there is still time to do so. There is no evidence that Mr Leather even considered such an advice. It is true that this was a legal aid matter. Legal aid may or may not have been prepared to fund the advice. That is of no consequence. Lawyers’ obligations are not reduced because a matter is funded by legal aid. The standard of care which must be applied to the case is no less in matters so funded. It is no answer to say (and to his credit, Mr Leather did not say it) that this will result in solicitors running legal aid matters at a loss. It is perfectly plain from the way legal aid is funded in Queensland that lawyers are not supposed to make a profit in legal aid cases; they are intended to be undertaken out of charity. In the present case, there is no suggestion that Mr Leather's omissions were consciously prompted by financial concerns. However the fact remains that Ms Ryrie received her brief with only two working days left until the hearing. By then it was doubtless too late to embark upon investigations of the nature required.
- It is not enough for Mr Maguire to succeed in this action that he proves that Mr Leather was negligent in some respects. He must also prove that the negligence caused him damage. That requires that he prove that had Mr Leather performed his duties properly, the outcome before the Tribunal would have been more favourable; or at least that there was a significant chance of a better outcome. That in turn requires some analysis of what would have happened had Mr Leather taken up the inconsistent conversation with Dr Cruickshank and Dr Piaggio, and put Mr and Mrs Maguires’ explanations of the two incidents to Dr Piaggio and Dr Stedman.
- Dr Piaggio was asked about what he would have written in his 2001 report had he known that Dr Cruickshank had observed no sign of paranoia. He said he would have omitted the last two sentences of the third paragraph on the second page of his report. He did not accept that he would have changed the reference to “strange ideas” even had he been aware that there was nothing strange about those ideas; but that was because he took the view that in that sentence he was “not attributing that as paranoid idea at that time.” That is not a fair reading of the sentence in the report and I am prepared to assume in Mr Maguire's favour that had Dr Piaggio been given time to consider the question that sentence also would have been omitted.
- As events happened, Dr Piaggio's report was sent to WorkCover long before Mr Leather could have spoken to him. The most Mr Leather could have achieved would have been a supplementary report correcting the passages to which I have referred. However Dr Piaggio was also under a duty to report honestly to WorkCover and not to omit any material matter. Even in the absence of any overt symptoms of paranoia, it remained Dr Piaggio's opinion that Mr Maguire was in the prodromal stage of the disease during the 1980s. He would have been obliged to state that opinion in any supplementary report.
- What would have happened had Mr Leather contacted Dr Stedman is unknown. Plainly Dr Stedman was not unwilling to cooperate with Mr Maguire. He had access to notes recording what was said by Mr Maguire in giving his personal history and he would have been able to identify any indication in the notes of the timing of the reference to Kerry Packer. Unfortunately he was asked none of these things in his evidence. I proceed on the assumption in Mr Maguire's favour that there is no evidence in the notes to suggest that this reference dated back to the 1980s.
- With proper preparation Mr Maguire's case could have been presented to the Tribunal as one where no symptoms of paranoia had been displayed before 1990. Ms Ryrie would have been able to place greater emphasis on the injury at work, and would have been able to submit with greater force that an asymptomatic condition had suddenly become totally disabling. However two of the three members of the panel which heard the case were psychiatrists. It must be assumed that they were familiar with the nature of paranoid schizophrenia and with the matters described by Dr Piaggio about the development of that disease. They questioned Mr Maguire closely during the hearing and would have formed their own opinions. Had evidence from Dr Klug been placed before the Tribunal it would probably have included his opinion that “stress does not cause schizophrenia, which is considered to be a neurodevelopmental disorder with a genetic component. Stress can trigger the overt clinical manifestations in a vulnerable individual”. That opinion is completely consistent with Dr Piaggio's evidence. So was Dr Murphy's suggestion, which was before the Tribunal in his report to WorkCover that “[T]he difficulties Mr Maguire may have been having in the middle of 1990 may well have been part of a prodromal phase of his impending psychiatric illness”. There would have been no evidence to the contrary.
- The Tribunal found that Mr Maguire's disease was “due primarily to underlying constitutional factors”. Its ultimate decision was based squarely on that view. (It is clear that the Tribunal rejected Dr Clarke's opinion that in April 1991 Mr Maguire's symptoms were simply manifestations of his personality.) It must have viewed Mr Maguire as vulnerable to the onset of paranoid schizophrenia. That would not have changed, even if Mr Maguire's case had been presented at its best. In my judgment even on that basis the chances of an improved outcome for Mr Maguire were minimal.
- The position before the Review Tribunal would have been no different from what it actually was.
- It follows that I am not satisfied that Mr Leather's negligence altered the outcome of the Tribunal hearing. Mr Maguire's chance of achieving a better result before the Tribunal had Mr Leather performed his duties properly was minimal. Mr Maguire has failed to prove that the negligence was productive of any loss. There must be judgment for the defendant.
- In case the foregoing reasons be wrong, I set out some matters relevant to the calculation of damages. Mr Maguire's claim was framed as if it were brought against a tortfeasor who caused his injuries. However he never had any prospect of recovering such an amount as a result of a favourable finding by the Tribunal. The best possible result which Mr Maguire could have achieved before the Tribunal was a finding that a total incapacity for work existed, occasioned by the injury suffered in 1990.
- Such a finding would have entitled Mr Maguire to compensation. Any such compensation should, it seems, have been assessed pursuant to the Workers Compensation Act 1916. Under that Act compensation was paid by way of weekly payments. No material has been placed before me which would enable me to assess the amount of such payments, nor has Mr Maguire made any submissions on that point. There was also provision under that Act for redemption of the liability for weekly payments by the payment of the lump sum agreed between the worker and a corporation for whose liabilities I assume WorkCover is responsible; and in default of agreement for the amount to be fixed by an industrial magistrate. I have no way of knowing how much a magistrate might have fixed in circumstances such as those of Mr Maguire.
- Unless it were found that Mr Maguire would certainly have succeeded before the Tribunal had his case been properly prepared, he would be entitled only to a proportion of the amount described in the preceding paragraph. Essentially Mr Maguire's claim is for the loss of a chance. If the chance is assessed in percentage terms, its value by reference to that amount may be calculated.
- There must be judgment for the defendant. I shall hear the parties on costs.
 Statement of claim, para 14. Mr Maguire was unrepresented at the trial, and had signed the statement of claim personally. It may be that his application was in fact for workers compensation, but nothing turns on that.
 Its more florid effects may be mitigated, presumably by medication.
 Exhibit 5, p 48.
 In his evidence Mr Maguire asserted that this occurred in September 2001. However Mr Leather’s file was opened in February 2002 and Mr Maguire alleged the date of the retainer as 15 February 2002 in his statement of claim (para 16). In addition, the notice of referral dated 14 February was sent direct to Mr Maguire, not to the solicitors. In any event, nothing depends upon the precise date of the retainer.
 Exhibit JPM 17, p 3.
 Transcript 237.49.
 Exhibit JPM27.
 See para .
 See s 23.
 Exhibit 3.
 Paragraphs  and .
 Exhibit JPM 11.
 Exhibit 1.
 Exhibit JPM 14.
 Exhibit JPM 15.
 Paragraph .
 Exhibit JPM 11.
 Exhibit JPM 16.
 Exhibit JPM 14.
 Paragraph .
 Blakiston’s New Gould Medical Dictionary, 1956.
 Paragraph .
 And as I shall, for ease of reference, continue to describe her in these reasons.
 Paragraph .
 I am not satisfied that he had any right to make such an application or that the review panel had any jurisdiction.
 The terms of the retainer are set out in para .
 Paragraph .
 Exhibit 5, p 1. The Reference indicated that it was made in accordance with the Workers Compensation Act 1990, and the wording quoted reflects that of s 9.12(2)(b) of that Act (numbered as first enacted). I am indebted to Mr Morton, counsel for Mr Leather, whose careful research demonstrated that in fact the Tribunal should have been proceeding under s 14C(7) of the Workers Compensation Act 1916 as in force on the date taken to be the date of Mr Maguire's injury (7 June 1990). Mr Maguire did not allege that Mr Leather was negligent in not discovering this and in any event, the difference between the provisions does not appear to be material for present purposes.
 Paragraph .
 Exhibit JPM 20.
 Exhibit JPM 14, p 4.
 Paragraph .
 Section 14B.
- Published Case Name:
Maguire v Leather
- Shortened Case Name:
Maguire v Leather
 QSC 164
13 Jul 2007
No Litigation History