Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • {solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)

Maguire v Cruickshank

 

[2008] QCA 273

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

BS No 10699 of 2004

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

DELIVERED ON:

12 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2008

JUDGES:

Keane, Holmes and Fraser JJA

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – FINDINGS ON ISSUE OF NEGLIGENCE – GENERALLY – where the appellant claimed damages for negligence against the respondent – where the learned trial judge dismissed the appellant’s claim on the basis that the evidence adduced did not reveal any negligence on behalf of the respondent – whether the learned trial judge erred in his findings on negligence

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where the appellant filed many documents before the trial – where the learned trial judge explained to the self-represented appellant that he needed to adduce evidence in the course of the trial and that the filed documents would not constitute evidence unless they were adduced at the trial – where the appellant did not adduce many of the documents he had filed prior to the trial – where, on appeal, the appellant sought to rely on significant amounts of evidence not adduced at the trial – whether the Court should take into account evidence not adduced at trial

EVIDENCE – DOCUMENTARY EVIDENCE – OTHER MATTERS – where the appellant filed many documents in the registry prior to the trial – where the learned trial judge explained to the appellant that the documents he had filed in the registry would not be admitted as evidence in the trial unless they were adduced in the course of the trial – where the appellant failed to adduce at trial many of the documents he had filed in the registry – where the appellant complained that the learned trial judge was not familiar with ‘the evidence’ and had incorrectly ignored ‘the evidence’ – whether the appellants complaint’s were made out

EVIDENCE – COURSE OF EVIDENCE AND ADRESSES – ADDRESSES – GENERALLY –  where the appellant alleged that the learned trial judge had not allowed the appellant any continuity in presenting his arguments – where the appellant also contended that the learned trial judge had not fairly treated the appellant’s wife who had appeared at times in the trial on behalf of the appellant – whether the learned trial judge had not allowed the appellant continuity in presenting his arguments – whether the learned trial judge had unfairly treated the appellant’s wife

Maguire v Cruickshank & Anor [2008] QSC 84, affirmed

COUNSEL:

The appellant appeared on his own behalf

G W Diehm for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Blake Dawson for the respondent

[1] KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Fraser JA.  I agree with his Honour’s reasons and the order proposed by his Honour.

[2] HOLMES JA: I agree with the reasons of Fraser JA and the order he proposes.

[3] FRASER JA: Mr Maguire claimed damages for negligence against Dr Piaggio (a psychiatrist) and Dr Cruickshank (a general medical practitioner).  He abandoned the claim against Dr Cruickshank on the first day of the trial.  The trial judge dismissed the claim against Dr Piaggio and ordered Mr Maguire to pay the costs.[1] Mr Maguire appeals against those orders.

Facts

[4] I will summarise the critical findings of fact made by the trial judge.

[5] In the late 1980s Mr Maguire’s duties in his work for the Department of Transport changed from working at a weighbridge to long range driving and roadside interception of heavy vehicles.  In December 1989 Mr Stevenson, Acting Director- General of the Department of Transport, wrote to Mr Maguire’s general practitioner, Dr Cruickshank, that Mr Maguire’s ‘previous work partners’ thought that medication he was taking affected the quality of his driving.  Mr Stevenson sought a report from Dr Cruickshank.

[6] On 10 January 1990, Dr Cruickshank reported that Mr Maguire had suffered an anxiety state and ‘nervous dyspepsia’; that he took Serepax for his anxiety and Stelazine for the ‘nervous dyspepsia’; that Mr Maguire had been advised that the medications ‘may possibly cause drowsiness and that his competence in driving and working with machinery may be diminished’; and that Mr Maguire had decided to withdraw from the medication.

[7] Serepax relaxes patients with anxiety related symptoms.  Stelazine is a major tranquiliser and antipsychotic medication, used for psychotic illnesses, including those that manifest symptoms of paranoia.  It may be prescribed for agitation, aggressiveness and overwhelming thoughts.  In the 1980s, it was also used for anxiety associated with agitation.

[8] In about mid-1990 Mr Maguire stopped working and lodged a worker’s compensation claim.  In July 1991, a General Medical Assessment Tribunal – Psychiatric determined that Mr Maguire had suffered a compensable injury (‘an Adjustment Disorder with Anxious Mood aggravated by work circumstances’) that had resulted in temporary, total incapacity.  The tribunal recommended payment of compensation for the two months immediately after Mr Maguire had ceased work.  $3,555.18 compensation was paid for the period 8 June to August 1990.  Thereafter Mr Maguire was treated by various medical practitioners.

[9] Dr Piaggio first saw Mr Maguire on 11 July 1995.  Mrs Maguire also joined the interview.  Dr Piaggio made contemporaneous notes from which he refreshed his memory at the trial.  The trial judge accepted his evidence.

[10] At this interview Mrs Maguire spoke of her husband’s ‘paranoid symptoms’ having started when his duties changed from weighbridge to ‘mobile’ in 1988.  She recalled that Mr Maguire’s work situation came to be a problem when workmates made accusations about his driving.  Towards the end of the interview, Dr Piaggio enquired whether there had been anything in the past that seemed strange. Dr Piaggio recorded: ‘Family ill with Giardia after we won a dishwasher in 1981’.  Mr Maguire ‘blamed the dishwasher.  Thought Greg Chappell (GRUB) had something to do with it – (as a revenge for a comment he shouted out at the cricket)’.  (Dr Piaggio was not told when Mr Maguire first experienced this delusion. There was no evidence that Mr Maguire came to this view before June 1990.)  Dr Piaggio also wrote that there seemed to be ‘some history of paranoid ideas (eccentric ideas)’: he was told that one of the Maguires’ children had ‘bad eyes’ about nine years earlier and that the Maguires thought the condition was related to eating chocolate ice-cream.

[11] Dr Piaggio did not see the stories about Greg Chappell having arranged for Mrs Maguire to win an infected dishwasher and about ice-cream having caused the eye problem as telling indications of paranoia.  That was a hypothesis.  Eccentricity was also a possibility.

[12] Dr Piaggio subsequently spoke to Dr Cruickshank.  By then, Dr Cruickshank had not treated Mr Maguire for about five years.  The trial judge found that Dr Cruickshank told Dr Piaggio that he had prescribed the Stelazine for paranoia experienced by Mr Maguire over the ‘long term’.  Dr Cruickshank later sent to Dr Piaggio Mr Stevenson’s letter of December 1989, Dr Cruickshank’s 10 January 1990 response, Department of Transport evaluations of work performance and driving ability, and a report of Dr Freed dated 10 December 1990.  Dr Freed, a psychiatrist, reported clinical indications of some organic cerebral loss and hypomania.  Dr Piaggio also received discharge summaries relating to two periods Mr Maguire had spent at the Barrett Centre, a psychiatric institution.

[13] Subsequently, Mr Maguire was admitted to other psychiatric facilities and Dr Piaggio continued to treat him.

[14] In September 2001, WorkCover wrote to Dr Piaggio seeking a clinical summary in connection with a proposed reassessment of any permanent damage Mr Maguire might have sustained as a result of work-related injuries in June 1990.  Dr Piaggio was asked to address, among other things: diagnosis, medical history, examination findings, investigations, treatment, Mr Maguire’s condition, the relationship between that condition and a work-related event in June 1990, and prognosis.  The letter enclosed an authority from Mr Maguire to disclose the requested information.

[15] Mr Maguire’s claim was based on Dr Piaggio’s resulting report to WorkCover dated 18 October 2001.  At the trial and in the appeal Mr Maguire particularly complained about the part of the report I have emphasised below:

“I first saw this man in July, 1995. He was referred by his local doctor, Dr. Simon Lawton, with ‘a paranoid disorder’ and a history of being treated with Haldol, Depixol and Chlorpromazine.

I understand he had been admitted to the Barrett Centre in November to December, 1990, February to March, 1994, and June, 1995. In May, 2000, he was admitted to the Mental Health Unit at Ipswich Hospital.

He told me in 1995 that he was first put on Stelazine by his G.P. at the time, Dr Cruikshank, for the agitation and consequent stomach upset he had with night shift.

Between 1990 and 1994 he had contact with the Ipswich Community Psychiatry Service (later called the Integrated Mental Health Service).

The summary of his November, 1990, admission reported that his behaviour deteriorated ‘following the loss of job at the Main Roads Department’. They say (he) ‘felt persecuted by a group of influential people whom he believed were responsible for his retrenchment’. He had been violent. A provisional diagnosis of ‘Paranoid Psychosis? Schizophreniform in nature’ was made, with a differential diagnosis of ‘Delusional Disorder’.

This man also saw Dr. Alan Freed, psychiatrist, in December, 1990, after his discharge from the Barrett Centre, who thought there were both clinical signs of some organic cerebral loss and of hypomania. These would presumably have affected his work performance if present over the previous twelve months.

In 1994 the diagnosis of Delusional disorder (paranoid type) was made. At this admission, together with the paranoid belief about the reason for the loss of his job in 1990, was the belief that his wife was poisoning him.

The diagnosis in 2000 was ‘Schizophreniform Psychosis’. His delusional beliefs involved his wife again, but also the greyhound and horse racing industries.

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 antipsychotic 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).

He was started on Zyprexa 10 mg. eighteen months ago. In July he reported he was still taking it. Compliance with John will always need to be monitored.

I have enclosed a copy of my July, 1995 letter for your information.

John probably does not remember that I have as much information about him as I have. He knows that to obtain the script for Zyprexa the diagnosis of Schizophrenia has to be nominated. He does not have a lot of insight into his illness, so he may choose to believe that he gets this medication for other reasons.

This man does have a psychotic illness of a paranoid type, which is controlled by medication. Whether the illness is Schizophreniform, Delusional Disorder (paranoid type), Schizoaffective Disorder or Schizophrenia, this man has had symptoms of it since at least 1990 and probably earlier. This illness is a chronic illness. It is permanent and he is no longer capable of working.”

[16] Mr Maguire was legally represented at the assessment convened on 26 April 2002 before the General Medical Assessment Tribunal – Psychiatric.  The tribunal was constituted by three medical practitioners.  They interviewed Mr Maguire.  The tribunal’s decision also identifies the reports it took into account, including Dr Piaggio’s October 2001 report and many other medical reports.

[17] The tribunal found that Mr Maguire’s chronic Paranoid Schizophrenia was due primarily to underlying constitutional factors and that the aggravation of his psychological problems related to work factors had ceased.  It concluded that there was no permanent disability from the work related ‘injury’ of June 1990.

[18] In June 2002, Mr and Mrs Maguire told Dr Piaggio that they felt that his October 2001 report to WorkCover was inaccurate and that the references to problems before 1988 ‘ruins their case’.  Dr Piaggio said that he was willing to write another letter amplifying, but not changing, the views expressed in his report. He wrote the following letter to WorkCover dated 3 June 2002:

“I have been asked to clarify my report on October, 2001.

There has been some dispute about the history I have obtained about his man before I saw him in 1995.

Both he and his wife came to his regular appointment today with copies of my letter after I first saw John in July, 1995, and of my letter to WorkCover about his claim, written in October, 2001.

They dispute the fact that there was any paranoid illness before 1989. They explain that the ‘bad eyes’ in their son was an allergic type reaction to chocolate icecream that he has not had before or since. They are surprised with the information I had that their doctor, Dr. Cruickshank, who they saw before 1990, had prescribed Stelazine more for paranoid ideas than for stomach upset. My information did not clarify when Dr. Cruickshank thought paranoid symptoms were present. John says that doctors who knew him at the time would not have agreed with any comment about paranoid ideas. His wife says he did not have paranoid ideas.

I had not seen him at these earlier times, so I do not have first hand information. I have had to rely, in 2001, on what I have written in my chart about the collateral information I have obtained. I would recommend that information is obtained from original sources for these earlier times.

I would state that from an historical point of view, it is significant that there is evidence of major decompensation following the work issues of 1988-89-90.

Late onset paranoid illness of the Schizophrenic type will usually present after a major stress. Even if there were prodromal symptoms before that time, it usually takes a significant stress to precipitate the more florid forms of the illness.

It is my opinion that the work changes and the difficulties with the interpersonal relationships at the time in question would have been the significant stresses to tip him into his more florid state that led to hospital admissions. Whether this is an aggravation of a pre-existing condition or the absolute beginning of his illness is probably irrelevant since the work stress still played a significant part in the development of his illness we see now.

I hope this information helps to clarify my reports and letters.”

[19] The tribunal did not alter its decision.

Mr Maguire’s claim against Dr Piaggio

[20] Mr Maguire claimed that the statements in Dr Piaggio’s October 2001 report that Mr Maguire had “‘strange ideas’ probably as far back as 1986, when he attributed chocolate ice-cream as the cause of his son’s ‘bad eyes’” and that “the use of Stelazine was more for paranoia than the stomach upset this man was told it was for” were wrong; that this was demonstrated by Dr Piaggio’s June 2002 clarification letter; that it was negligent of Dr Piaggio to make those wrong statements in his October 2001 report; that as a result of those wrong statements WorkCover rejected Mr Maguire’s claim that his continuing mental illness was work related; and that Mr Maguire failed to obtain a substantial payment from WorkCover for that reason.

The trial judge’s conclusions

[21] The trial judge held that, assuming without deciding that Dr Piaggio owed Mr Maguire a duty to exercise reasonable care, Mr Maguire had not proved that the October 2001 report involved any departure by Dr Piaggio from the standard of care reasonably to have been expected of him, and that Mr Maguire had not proved that the October 2001 report caused him any loss.

The arguments in the appeal

The trial judge’s familiarity with the evidence and Mr Maguire’s reliance on evidence not adduced at the trial

[22] Mr Maguire argues that the trial judge did not know what the plaintiff’s claim was about.  The careful and precise reasons of the trial judge, of which I have given a brief summary, demonstrate the futility of this argument.

[23] This argument also reflects a mistaken view that the contents of affidavits filed in the registry by Mr Maguire became evidence in the trial merely because they were filed.  The same mistake pervades many of Mr Maguire’s other arguments, such as his contention that the primary judge did not know until Mr Maguire told him at the trial that Mr Maguire was not pursuing his claim against Dr Cruickshank (as paragraph 2 of the reasons records).  Mr Maguire persists in this mistake in his arguments in the appeal, in which he refers both to his affidavits and to evidence and findings in a different case in the trial division[2] which were not in evidence at the trial. 

[24] The trial judge clearly explained at the trial that the only evidence that would be taken into account in the trial was that which was adduced at the trial.  At the beginning of the trial, once it became clear that Mr Maguire was representing himself and was not a lawyer the trial judge explained the procedure.  Amongst other things his Honour said:

“At this stage of the proceedings, evidence is not adduced. Rather, the purpose of the opening is to enable you to outline your claims, the issues that arise in the litigation, and in a brief way the evidence intended to be put into evidence in your case. You will then be entitled to give evidence yourself and to call the witnesses. That stage will also be the opportunity for you to tender into evidence relevant things such as documents, photographs and other material upon which you wish to rely.”

[25] The trial judge later said:

“HIS HONOUR: So, Mr Maguire, this, as I’ve said, is the stage at which you have an opportunity to open your case. That means you now have a chance to outline the claims - to outline the issues that arise in the litigation and to state in a concise way the evidence which is intended to be adduced in your case.”

[26] And later:

“HIS HONOUR: There is one other matter I need to mention so that you clearly understand it. I know nothing about the case except to the  extent to which you draw my attention to the facts and legal contentions upon which you rely. You must not assume that any of the material on the file has been considered by me. I have not looked at the file-----”

[27] The trial judge continued despite Mr Maguire’s interruptions:

“HIS HONOUR: I - and so it’s important you understand this,
Mr Maguire. Unless and until-----

PLAINTIFF: I’ve got to - yeah, let you know, fill you in, put the dots in, yeah.

HIS HONOUR: And put into evidence any documents upon which you rely-----

PLAINTIFF: Yeah.

HIS HONOUR: -----and call any other witnesses upon-----

PLAINTIFF: Well, numero uno is Piaggio, you know, like, I can’t wait to get him in the witness box to be quite honest, you know. But I mean his report of the 3rd of June is – young Nathan Evans said, he said, ‘I’ve never seen a bloke dob himself and slash his own wrist.’

HIS HONOUR: Well, I have not seen any of this material.

PLAINTIFF: Well-----

HIS HONOUR: If I did see it on the occasion-----

PLAINTIFF: It’s in the ream of - see, there’s quite a bit of there. It’s-----

HIS HONOUR: But you have to put it all before me.

PLAINTIFF: Yes, I will, your Honour, yes, to the best of my

ability, yes.

HIS HONOUR: All right. Do you wish to go and give evidence now, do you?

PLAINTIFF: Yes, your Honour.”

[28] Again, at the commencement of Mr Maguire’s evidence, the trial judge said:

“HIS HONOUR: You should begin by identifying yourself stating your full name and your residential address and then it is for you to decide what things you wish to say and what documents, if any, you wish to put into evidence in support of your case?—”

[29] When Mr Maguire referred to some documents in the course of giving evidence, which Mr Maguire asserted were “in my ream of evidence submitted before this Court”, the trial judge again pointed out that only evidence tendered in the trial could be taken into account.  His Honour said that he had “attempted to explain already that I do not have any material except such material as you now give to me during the course of your case.” 

[30] Despite the explanations given by the trial judge Mr Maguire again referred to documents he had filed in the registry.  The trial judge again pointed out that he had none of that material.  After further attempts to explain the position, which were again interrupted by Mr Maguire, the trial judge said:

“Now, please listen to me Mr Maguire because it seems that you have not understood the procedure at all. If a document is not drawn to my attention here in open Court-----?-- Well-----

-----in the presence of everyone - please listen to me-----?-- Yes, your Honour.

-----I will not be taking account of it. It does not matter what you filed in the Registry. It does not matter what you have given to the other side. It is critical you understand this. If you want me to consider a document you need to put it in evidence before me?-- [Indistinct].

That means that with respect to each such document you need to say, so that the other side can see that you are relying on it, ‘I tender the document’, describing it. If, for example, it is a report of the doctor, you should say, ‘I tender the report of Dr So-and-so dated such-and-such.’ If, but only if, you adopt such a procedure will that document come before me. Have I made myself clear?-- Okay. Right. I-----

Are there any questions you have about this procedure?-- No. I tender this - this report, your Honour.”

[31] Thereafter Mr Maguire did adduce evidence.  In addition to his own evidence Mr Maguire called Dr Piaggio.  On the second day the trial judge permitted Mr Maguire’s wife to take over the conduct of the case.  She called Dr Klug, a psychiatrist, and gave evidence herself.

[32] It is apparent that the trial judge said all that reasonably could have been said to explain to Mr Maguire that the affidavits he had filed were not in evidence unless and until they were tendered in evidence during the trial.

[33] Mr Maguire’s argument that the trial judge should have familiarised himself with the contents of those affidavits has no merit.  Nor should this Court receive any of that evidence or any of the evidence concerning the other proceedings that was not adduced at the trial.  Accordingly it is not necessary further to consider Mr Maguire’s lengthy submissions about the supposed effect of that evidence.

Continuity in the presentation of Mr Maguire's evidence

[34] Mr Maguire contends that the trial judge did not allow him any continuity when presenting his evidence.  There is also no substance in this argument.  The extracts from the transcript set out above are examples of the way in which Mr Maguire repeatedly interrupted the judge’s attempts to explain the procedure to Mr Maguire.  There are many other examples of similar and worse conduct by Mr Maguire.  It is sufficient to give one such example:

“MR DIEHM: Thank you, your Honour. Yes, Dr Piaggio?-- And so tracking back before 1990-----

WITNESS: I’d be looking for symptoms that would have indicated-----

PLAINTIFF: Go on, you moron.

WITNESS: -----that there were changes-----

PLAINTIFF: You’ve got another moron over to the right of you.

WITNESS: -----from the other domains that would - particularly, as I say, the cognitive domains and the negative domains which can precede the illness and the anxiety and depression domains would be present.
PLAINTIFF: They’re trying to con him - it’s unbelievable, isn’t it? Hey?

WITNESS: So that those evidences that were presented by the reports of problems that work-----

PLAINTIFF: It doesn’t make any difference. He’s already said. We’ve got him on tape-----

WITNESS: -----in interacting-----”

[35] Mr Maguire does not identify any example of any inappropriate interruption by the judge.  I have not found one.

[36] Mr Maguire also contends that the trial judge treated Mrs Maguire unfairly whilst she was running his case on the second day of the trial.  He points to the following passage in the course of Mrs Maguire’s submissions:

“MRS MAGUIRE: Yes. He Piaggio states:

‘There has been some dispute about the history I have obtained about this man before I saw him in 1995.’

This paragraph clearly demonstrates what Piaggio failed to do and what he should have done while writing his report dated 18th of October 2001.

HIS HONOUR: What do you say he should have done?

MRS MAGUIRE: He should have conferred with my husband. He should have asked my husband, ‘Was this correct?’, which he didn’t do.

HIS HONOUR: And your husband, let us assume, would have said that there were no symptoms of paranoia-----

MRS MAGUIRE: Which there wasn’t, your Honour, not a sight of anything until this happened with the work - with work.

HIS HONOUR: Well, what do you say to the idea that even if your husband had said that, it wouldn’t have made any difference because Dr Piaggio would have been obliged to report to the Worker’s Compensation Board not only what your husband had said but also that he had been told in 1995 by Dr Cruickshank that there had been prior episodes of paranoia for which he was treated with Stelazine?

MRS MAGUIRE: Well, I don’t know where they’re getting their information from, your Honour, because it wasn’t true. None of this happened till ‘98, ‘99 when he lost his job at the Transport Department.

HIS HONOUR: You seem to be missing the point that I need to raise with you to see if you have any answer to it. Assume that Dr Piaggio had spoken to your husband.

MRS MAGUIRE:  Yeah.

HIS HONOUR:  Assume further that your husband had said to him, ‘I didn’t suffer from paranoia before 1990.’ Assume that.

MRS MAGUIRE:  Yeah.

HIS HONOUR: Dr Piaggio was in the possession of information which Dr Cruickshank had supplied in 1995 in which
Dr Cruickshank had told Dr Piaggio that the - there had been, in effect, prior episodes of paranoia and it was for that that the Stelazine had been prescribed. Now, Dr Piaggio would have been obliged to tell the Worker’s Compensation Board that, wouldn’t he?

MRS MAGUIRE:  I suppose so, your Honour, but still - he still  could have asked my husband, which he didn’t - which he failed to do.”

[37] That is an example of the trial judge ensuring that Mrs Maguire was given an opportunity to focus her submissions upon one of the apparent obstacles to Mr Maguire’s claim.  Mr Maguire’s argument misconstrues it as an unfair interruption of his wife’s submissions.

Evidence of Dr Cruickshank

[38] Mr Maguire submits that Dr Cruickshank “had committed perjury”.  The submission is baseless.  Dr Cruickshank was asked whether he had told Dr Piaggio that the Stelazine had been prescribed “more for paranoia than for the stomach upset that he [Mr Maguire] had been told it was for”.  Dr Cruickshank replied: “I have a recollection that I conveyed information similar to that”.  That evidence was consistent with Dr Piaggio’s contemporaneous handwritten notes of the same conversation, which included the note: “long term paranoia – why he was on Stelazine all that time”.  The trial judge accepted the evidence of both doctors.  The trial judge also found that whilst Dr Cruickshank believed what he told Dr Piaggio at the time, he subsequently realised that his memory had failed him and that he had unintentionally misinformed Dr Piaggio.  Mr Maguire does not identify any arguable ground for setting aside these findings of the trial judge.

Negligence

[39] Mr Maguire substantially repeats the submission he made to the primary judge that Dr Piaggio was negligent in his failure to confirm the accuracy of his report before sending it to WorkCover.  The trial judge rejected that submission in the following passage of the reasons:

[44]Dr Piaggio was not asked, and did not say, why he did not discuss with Mr Maguire what he intended to report. And no practitioner has testified about either general medical practice in this regard or whether, in the particular circumstances of this case, a treating psychiatrist providing such a report should have checked its contents with the patient. This litigation has to be decided without such assistance. [Neither in evidence nor in addresses was there any reference to cases, commentaries or medical literature bearing on the responsibilities of a treating medical practitioner in supplying a report for use in a tribunal assessing a claim for compensation.]

[45]On Mr Maguire’s case, it is self-evident that he ought to have been consulted about the report. This, however, is by no means obvious.

[46]Dr Piaggio already had a deal of information about Mr Maguire. It is not shown that that material contained inconsistencies that merited further investigation with Mr Maguire [Mr Maguire maintains that he would, if asked, have told Dr Piaggio that the Stelazine was for physical symptoms. But Mr Maguire had told Dr Piaggio that in 1995] or that for some other reason checking with him would have been a prudent precaution to reduce the risk of error in reporting.

[47] By October 2001, Mr Maguire had been mentally ill for more than a decade. He had exhibited symptoms of paranoia. He had been delusional. He laboured under a pronounced propensity to misinterpret things, as he still does.

[48] In the circumstances, it is not shown that Dr Piaggio should have discussed his report with Mr Maguire before sending it to WorkCover, which means that the case Mr Maguire propounds fails.”

[40] In my respectful opinion there was no error in those reasons or in the trial judge’s conclusion.

Causation

[41] The primary judge concluded that Mr Maguire had not established that the inclusion of the 2002 clarifications in the October 2001 report would have resulted in a different determination by the tribunal.  The trial judge said:

[56]For one thing, the extent to which Dr Piaggio’s report was influential in the Tribunal’s decision is not apparent.

[57] Of the medical evidence considered by the Tribunal, Dr Cruickshank’s 10 January 1990 letter, the 1994 discharge report of Dr Stedman, Dr Piaggio’s letter of 11 July 1995 and his report of October 2001 are in evidence. So also is the 2 April 1991 report of Dr Janine Clarke, in which she reported that her interview with Mr Maguire on 5 March 1991 did not reveal ‘any obvious psychiatric illness’. Otherwise, the information placed before the Tribunal in 2002 is not in evidence. Yet the Tribunal’s reasons confirm that several other medical reports were taken into account. One or more may have been critical to the decision to reject the attempt to reopen the claim. Moreover, the Tribunal examined Mr Maguire. There is no evidence of what he told the three doctors. And nothing reveals the extent to which the interview mattered to the determination.

[58] Secondly, if the 2002 clarifications had been added, it would have been obvious that they reflected Dr Piaggio’s understanding of assertions by Mr and Mrs Maguire made at a time when the old claim was being resuscitated. More importantly, the reliability of anything Mr Maguire had said would inevitably have been assessed having regard to his demonstrable tendency to misinterpret things.

[59] Mr Maguire, therefore, has not proved that the October 2001 report caused him economic loss. On this ground also, the claim against Dr Piaggio fails. [Incidentally, I prefer Dr Piaggio’s evidence to that of Mr Maguire. For one thing, Dr Piaggio’s recollection was consistent with his contemporaneous notes. And Mr Maguire misinterprets things]

[42] The evidence before the tribunal that was not put in evidence at the trial included Mr Maguire’s statements to the tribunal, a “file review” by an “external medical officer” of 7 August 1991, four reports of a psychiatrist, Dr Wareing, dated in April, May and June 1994, a report by a general practitioner, Dr Lawton, of 2 May 2000, a report by an “intern” dated 16 May 2000, and a report by another psychiatrist, Dr Murphy, dated 24 September 2001. 

[43] In these circumstances, Mr Maguire faces an impossible task in seeking to establish error in the trial judge’s conclusion that Mr Maguire failed to prove that Dr Piaggio’s October 2001 report influenced the tribunal’s decision or caused Mr Maguire any loss.

 

Disposition

[44] There is no substance in any of Mr Maguire’s arguments. I would dismiss the appeal with costs. 

Footnotes

[1] Maguire v Cruickshank & Anor [2008] QSC 84.

[2] Mr Maguire's proceedings against his solicitor for negligence: Maguire v Leather [2007] QSC 164.

Close

Editorial Notes

  • Published Case Name:

    Maguire v Cruickshank & Anor

  • Shortened Case Name:

    Maguire v Cruickshank

  • MNC:

    [2008] QCA 273

  • Court:

    QCA

  • Judge(s):

    Keane JA, Holmes JA, Fraser JA

  • Date:

    12 Sep 2008

Litigation History

Event Citation or File Date Notes
Appeal Determined (QCA) [2008] QCA 273 12 Sep 2008 -
Special Leave Refused [2009] HCASL 47 12 Mar 2009 -

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)