- Notable Unreported Decision
- Appeal Determined - Special Leave Refused (HCA)
SUPREME COURT OF QUEENSLAND
Maguire v Leather  QCA 297
JOHN PATRICK MAGUIRE
Appeal No 6056 of 2007
SC No 2570 of 2005
Court of Appeal
General Civil Appeal
Supreme Court at Brisbane
26 September 2008
9 May 2008
Keane JA, White and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
2.The appellant pay the respondent’s costs to be assessed on the standard basis.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – FINDINGS ON ISSUE OF NEGLIGENCE – GENERALLY – the appellant claimed damages for negligence against the respondent, who had acted as the appellant’s solicitor in a claim before the General Medical Assessment Tribunal – the appellant alleged that he would have obtained a better outcome before the Tribunal if the respondent had identified and obtained certain evidence – the learned trial judge found that the respondent was negligent in some respects, but concluded that even had the respondent performed his retainer properly there was no significant chance that the outcome before the Tribunal would have been better for the appellant – whether the learned trial judge erred in his finding that the respondent’s negligence did not alter the outcome of the Tribunal hearing
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1;  HCA 12, cited
The appellant appeared on his own behalf
The appellant appeared on his own behalf
- KEANE JA: I have had the advantage of reading in draft the reasons for judgment prepared by White J. I agree with her Honour's reasons and with the orders proposed by her Honour. I add the following brief observations to emphasise the basis on which this appeal must fail.
- Mr Maguire's argument in this Court did not come to grips with the need to show that the learned trial judge erred in failing to be satisfied that Mr Leather's negligence altered the outcome of the Tribunal hearing. Mr Maguire bore the onus of proof on the issue of causation; he failed to discharge that burden.
- There are good reasons why, in cases where it is alleged that a lawyer's negligence in the preparation or presentation of the case has led to the failure of a court or tribunal to uphold a claim, close attention must be paid to the burden of proof on the issue of causation. In D'Orta-Ekenaike v Victoria Legal Aid, Gleeson CJ, Gummow, Hayne and Heydon JJ observed:
"Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others – the judge, the witnesses, advocates – anyone other than the party whose case has been rejected."
- The burden of proof which a plaintiff must discharge on the issue of causation serves to ensure that a case of a plaintiff, which has no hope of success against the first set of defendants, cannot be converted into a successful case against the lawyer who acted for the plaintiff against those defendants.
- In this case, the Tribunal made its decision, not only upon the material put before it on Mr Maguire's behalf, but upon psychiatric reports from other sources and its own interview of Mr Maguire. The precise impact of the other reports and the Tribunal's own examination of Mr Maguire upon the members of the Tribunal was not proved: no evidence was called to suggest that the Tribunal might not have come to the same conclusion had the errors in Dr Piaggio's report been corrected.
- In this case, whether or not Mr Maguire lost anything of value by reason of
Mr Leather's negligence depended upon Mr Maguire showing that he would probably have succeeded before the Tribunal had Mr Leather not been negligent. The most that can be said for Mr Maguire's case on the issue of causation is that his chances of success might have been improved had Mr Leather not been negligent. To say that Mr Maguire's chances of success before the Tribunal might have been improved had Mr Leather been astute to ensure that the passage in Dr Piaggio's report to which Mr Maguire objected was corrected is not to say that there was any real chance that the Tribunal would have upheld Mr Maguire's claim. It had other information before it, and it formed its own views upon its examination of Mr Maguire.
- For the reasons given by White J, the learned trial judge did not err in declining to conclude that Mr Leather's negligence caused Mr Maguire any real loss.
- WHITE J: The appellant, Mr Maguire, sued the respondent, his former solicitor, for damages for negligence for failing to identify and obtain appropriate evidence to put before the General Medical Assessment Tribunal – Psychiatric, (“the Tribunal”), established under the WorkCover Queensland Act 1996 in respect of his claim for compensation for injury arising out of his employment with the Department of Transport in 1990.
- The learned trial judge found that in some respects the respondent was negligent in his preparation for the hearing before the Tribunal but concluded, adversely to Mr Maguire, that even had the respondent performed his retainer properly there was no significant chance that the outcome before the Tribunal would have been better for Mr Maguire.
- Mr Maguire, who appeared for himself both at trial and on appeal, challenges that conclusion. He devoted much of his analysis before this court to the issue of negligence, seeming to struggle with the concept of causation, that is, that notwithstanding the respondent’s negligent handling of the retainer it could not be shown, on the evidence before the court, that the respondent’s negligence caused, or brought about, or materially contributed to, the adverse finding of the Tribunal. In other words, that the Tribunal would likely have found against Mr Maguire even had the respondent done all that a competent solicitor ought to have done. The finding of the Tribunal, made on 26 April 2002, was that Mr Maguire had no incapacity for work resulting from a work injury on 7 June 1990 and no permanent partial disability resulting from that injury.
- In brief summary, Mr Maguire’s contention was that on 7 June 1990 a work related incident occurred which led to him suffering from anxiety/depression which rendered him incapacitated for work. He initially appeared before the General Medical Assessment Tribunal – Psychiatric on 30 July 1991. The Tribunal determined that the circumstances of the incident on 7 June 1990 constituted an injury under the relevant workers compensation legislation; that the nature of the injury was an Adjustment Disorder with Anxious Mood aggravated by work circumstances; the incapacity was for work and was determined to be total and temporary. Mr Maguire received compensation for two months after ceasing work.
- It seems that Mr Maguire received some informal advice that he should be entitled to more compensation than he had received. Accordingly, in September 2001 he sought assessment for permanent partial disability for that injury. On 12 February 2002 WorkCover Queensland referred Mr Maguire to the Tribunal for assessment of any permanent partial disability. Mr Maguire retained the respondent to give advice and act for him in respect of his forthcoming appearance before the Tribunal in February 2002. The issue for the Tribunal was whether any incapacity for work resulting from the injury of 7 June 1990 was total or partial and permanent or temporary. The claim was to be assessed in accordance with the Workers’ Compensation Act 1990.
- On 26 April 2002, the Tribunal found that Mr Maguire had an underlying pre-existing psychiatric condition (Chronic Paranoid Schizophrenia) primarily due to constitutional factors which was temporarily aggravated by work related conflicts but that the aggravation had ceased and there was no remaining incapacity for work resulting from the 7 June 1990 injury and no permanent partial disability resulting therefrom.
- Mr Maguire was concerned that the Tribunal had had regard to a medical report from his then treating psychiatrist, Dr Kenneth Piaggio, which contained a number of inaccuracies about his pre-1990 psychiatric condition. At Mr Maguire’s request Dr Piaggio produced an amended report which was given to the Medical Assessment Tribunal Review Panel. The Review Panel concluded on 5 September 2002 that, while relevant, the new medical evidence did not contain new factual medical data. The Review Panel reached the same conclusion as the Tribunal.
- Mr Maguire contended, and the learned trial judge found, that there were other enquiries which the respondent could have made which would have produced evidence which his counsel could have used before the Tribunal. Mr Maguire contended on appeal that the learned trial judge’s conclusion, that even had that occurred the outcome would have been no different, was erroneous.
- Mr Maguire was born on 20 April 1951. He received his education at the Christian Brothers College at Ipswich. He was proficient at sport and described by the Mayor of Ipswich in 1967 as “of good character, polite and honest”. To similar effect was the opinion of the Deputy Chief Officer of the Ipswich Fire Brigade. Mr Maguire entered employment with Queensland Railways in 1967 as a Lad Porter in the Traffic Branch at age 15. Prior to doing so he underwent a medical examination by Dr H Patterson, the Railway Medical Officer. In answer to the pro forma question “Is candidate in sound bodily and mental health?” Dr Patterson wrote, “Yes”. Mr Maguire’s probationary appointment was confirmed on 28 August 1967. Mr Maguire left the railways because he had a propensity to bronchitis and worked elsewhere for a year. He returned to the railways as a Lad Porter and was again examined by Dr Patterson who again attested to his sound mental health. A letter of confirmation dated 13 March 1971 addressed to the General Manager Queensland Rail at Roma Street confirmed Mr Maguire’s appointment and said that he was interested in becoming a ticket inspector and was expected to do well in that area.
- Mr Maguire resigned from the railways in 1973 and was employed as an Inspector with the Department of Transport where he was employed at weighbridge checking stations inspecting heavy vehicles. He married in 1974 and now has two adult children.
- In about 1980 Mr Maguire had three attacks of a bad colicky pain in his stomach and consulted with Dr G J Cruickshank, a general practitioner practising in Ipswich who was the family doctor. Dr Cruickshank prescribed Stelazine and Serepax and continued to do so for approximately 10 years. Mr Maguire said that his colicky problems ceased after he started taking that medication. Dr Cruickshank gave evidence below that he prescribed these drugs for anxiety and nervous dyspepsia and not for paranoia or schizophrenia.
- Two episodes which assumed significance because they were interpreted by some doctors to indicate early paranoia occurred in the 1980s. The whole family became sick with intestinal giardia in early 1981 shortly after Mrs Maguire won a dishwasher in a competition sponsored by a well-known women’s interests' magazine. They were treated by Dr Cruickshank and the children referred to a specialist gastroenterologist. The condition ceased after being treated with medication and after the family stopped using the dishwasher. The other event concerned the son. In about 1986 he suffered from a badly bloodshot and swollen eye which was thought by his parents initially to be associated with additives in the ice cream which he used to eat in the afternoon after school. After several attacks the condition responded to antibiotics and cream prescribed by Dr Cruickshank and did not recur although the son continued to eat the ice cream. As will be mentioned further, the way in which these events were reported to, at least, Dr Piaggio led to a characterisation of Mr Maguire’s ideas about them as, at best, eccentric, and, at worst, as symptoms of paranoia.
- Returning to the chronology, Mr Maguire worked for many years at the Gailes Weighbridge as an inspector of heavy vehicles. In 1988 that weighbridge closed down and he was made a mobile transport inspector. This entailed him driving from place to place around south-east Queensland in a team of two or sometimes three inspectors. In 1989 Mr Maguire was put on office duties. This he found out subsequently was because his work colleagues had made complaints about his driving ability. It was those complaints, which he maintained were unfounded, which underlay his claim for damages for stress. With the consent of Mr Maguire, the Department of Transport wrote to Dr Cruickshank about the affect of any medication which he might have been taking on his driving capacity. In a letter dated 10 January 1990 Dr Cruickshank wrote:
“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 30mg twice a day for his anxiety state and Stelazine 1mg 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 [been], 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 had, with the assistance of Dr Cruickshank, decided to cease taking his medication because of those concerns about his fitness to drive. To do so he took leave from his employment. When Mr Maguire returned to work he was put on office duties which he disliked. His driving was assessed by two senior inspectors. He returned to mobile work but only as a passenger which he regarded as demeaning. He refused to take any further driving competence tests.
- Dr Janine Clarke, a psychiatrist, reported to the Workers Compensation Board that Mr Maguire told her in a conversation in March 1991 that he could not understand his work colleagues’ negative reports about his driving whilst at the same time admitting to some driving difficulties. He told her that he then “began to get shaky” and “have awful feelings in the chest”. He felt persecuted by certain work colleagues whom he believed were telling lies about him. He consulted with his Member of Parliament and union without success. After experiencing considerable distress at work Mr Maguire resigned his employment about 18 June 1990.
History after ceasing work in June 1990
- Mr Maguire was admitted to the Barrett Psychiatric Centre in November 1990 after complaints to police by his family (whom Mr Maguire reported to Dr Clarke had been telling lies about him) of threats of violence. The Barrett Centre’s file about Mr Maguire is not in the appeal record but Dr Kenneth Piaggio, who became Mr Maguire’s treating psychiatrist in July 1995, discussed its contents in a report dated 18 October 2001 to WorkCover Queensland. Mr Maguire was referred to the Barrett Centre by his local doctor, Dr Simon Lawton, with “a paranoid disorder” and a history of being treated with Haldol, Depixol and Chlorpromazine. According to Dr Piaggio:
“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? Schizophreniforn in nature’ was made, with a differential diagnosis of ‘Delusional Disorder’.”
- Dr Piaggio wrote that Mr Maguire told him in 1995 that he was first put on Stelazine by his general practitioner, Dr Cruickshank for agitation and consequent stomach upset he had with nightshift. Mr Maguire maintains he told Dr Piaggio that it was prescribed for bad colic. Dr Piaggio wrote that Dr Cruickshank told him 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)”.
Dr Cruickshank’s evidence below was consistent with his letter of 10 January 1990, which the learned trial judge accepted, notwithstanding that Dr Cruickshank agreed in evidence that Dr Piaggio did record their conversation correctly. The learned trial judge accepted Dr Cruickshank’s explanation that when he spoke to Dr Piaggio he did not have access to the letter of 10 January 1990 nor his clinical notes. Dr Cruickshank had ceased treating Mr Maguire towards the end of 1990 when he had caused him to become a regulated patient.
- Dr Piaggio wrote in his letter of 18 October 2001 that Mr Maguire also saw Dr Alan Freed, a psychiatrist, in December 1990 after his discharge from the Barrett Centre “who thought there were both clinical signs of some organic cerebral loss and hypomania”. Dr Piaggio commented that these conditions would probably have affected his work performance if present over the previous 12 months.
- In December 1990, in his application for compensation, Mr Maguire apparently wrote that he had been unable to cope with being constantly monitored at work and with the intense pressure and therefore resigned. WorkCover referred Mr Maguire to Dr Janine Clarke whose report has already been mentioned. In her report of 2 April 1991 she wrote:
“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.
From what he told me, I found no evidence of any condition related to his employment. His feelings of anger and possible anxiety seem to be in response to situations as they arose and do not constitute an illness as such.
With regard to the medication he was taking (Serepax and Stelazine) it is unlikely that they would interfere with his work if he was taking the stated doses over a period of ten years. The body tends to equilibrate long before that when there is no increase in dose….”
Mr Maguire had had, by then, several admissions to the Barrett Psychiatric centre. Dr Clarke’s opinion is relied on by Mr Maguire as evidence that he was not sick prior to the work-related events of mid-1990. Dr Clarke’s report was considered by the Tribunal. In psychiatrist Dr Stephen Murphy’s opinion, the difficulties which Mr Maguire was experiencing 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 have represented difficulties that arose due to personality problems.”
As explained by the learned trial judge:
“[a] prodrome is ‘an early manifestation of impending disease, before the specific symptoms begin’. Schizophrenia is a prodromal disease.”
- As mentioned earlier, Mr Maguire’s claim for workers compensation was heard by the General Medical Assessment Tribunal - Psychiatric on 30 July 1991 which determined that the work related matters in the claim constituted an injury within the legislation and its nature was “an adjustment disorder with anxious mood aggravated by work circumstances”.
- There is no direct evidence about what happened so far as Mr Maguire’s condition is concerned for the next few years, but in February 1994 Mr Maguire was again admitted to the Barrett Centre. In the summary under the heading of “Personal history”, Dr P Van de Hoef, the Psychiatry Registrar who worked under the supervision of Dr T Stedman, psychiatrist, recorded that in 1980 Mrs Maguire won a dishwasher in a competition and soon after some family members contracted giardia. The summary records:
“He blamed the illness on the dishwasher and on Kerry Packer (the owner of the New Idea who had organised the competition.”
- Mr Maguire has complained that the failure to discuss the matter of the dishwasher and the giardia with him has led to the elevation of this complaint to a symptom of paranoia. The learned trial judge found that the failure to seek this explanation and follow it up was an aspect of the respondent’s negligence. This link to the dishwasher (not, causally, to Kerry Packer) was well documented by the treating doctors much earlier in 1981 when it occurred and all members of the family had suffered from that unpleasant condition. Dr R McGregor, a specialist, reported to Dr Cruickshank on 10 September 1981 that the children were, by then, well, having been diagnosed with intestinal giardiasis, and added
“I suspect the diarrhoea was probably exacerbated by parental apprehension Graham, and with reassurance, it has settled…”.
Writing to Mr Maguire in November 2006, Dr Stedman said of the report of this incident:
“In response to your request, I can confirm that I met with your wife and yourself last week to discuss your concerns about a passage in a summary of one of you [sic] admissions to Barrett Centre.
In that meeting, you provided information and also a letter from your children’s paediatrician. This information confirms that you won a dishwasher in a competition and supports your understanding that shortly after, all the members of your family contracted Giardia.
I accept that the anguish described about the dishwasher may have related to the period 14 years earlier and may not have been a feature of this admission.”
- Mr Maguire is reported by Dr Van de Hoef as telling staff at the Barrett Centre that he had been violent to his wife several times in the preceding weeks; he complained of anxiety symptoms, such as palpitations, which he attributed to his wife putting poison in his food and his wife and mother plotting against him. Dr Van de Hoef made a diagnosis of “delusional disorder (paranoid type)”. He was prescribed Haloperidol 5mg per day. He was discharged taking Haldol 50mg fortnightly and Diazepam.
- Mrs Maguire expressed concern about Mr Maguire’s condition in 1995 to Dr Simon Lawnton, their then family doctor, who had Mr Maguire admitted to the Barrett Centre and referred him to Dr Piaggio as suffering from “a paranoid disorder”. Mrs Maguire attended the consultation on 11 July with Mr Maguire. After Dr Piaggio had read the letter which he proposed sending to Dr Lawnton to Mr and Mrs Maguire there was further conversation, the gist of which he added to his notes. Mr Maguire told Dr Piaggio of the dishwasher prize which he then blamed for the family’s illness and told Dr Piaggio
“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”.
When asked if they wished to add anything further, Mrs Maguire mentioned the son’s bad eye some years earlier which she said Mr Maguire attributed to eating ice cream. Dr Piaggio noted these additional matters under the heading “Some history of ‘paranoid ideas’ (eccentric ideas)”.
- Mrs Maguire explained to the learned trial judge below that if she expressed herself as Dr Piaggio’s notes suggested, she would, if asked further, have explained that there was nothing eccentric about Mr Maguire’s process of reasoning at the time. The learned trial judge accepted that these two events had explanations inconsistent with symptoms of delusional thinking at the time they occurred. That was not to say that by the time Mr Maguire saw Dr Piaggio he was not expressing himself in a delusional way about these occurrences. There was some discussion with Dr Piaggio when he gave evidence at the trial about retrospective falsification by Mr Maguire.
- After Mr Maguire applied to WorkCover in September 2001 for an assessment of his disability he was examined for WorkCover by Dr Murphy who wrote:
“Mr. McGuire [sic], since leaving work in 1990 has suffered from a major psychiatric illness requiring four relatively lengthy admissions to a psychiatric hospital and continuous treatment with an anti-psychotic medication. Today he presented as suspicious, paranoid and hostile and it is my understanding that these are the reasons that have necessitated his admission to the hospital in the past. It would obviously be most helpful if I could read the discharge summaries from the hospital or Mr. McGuire’s treating psychiatrist report, without this information the most likely diagnosis it [sic] that Mr. McGuire is suffering from chronic paranoid schizophrenia according to the DSM IV diagnostic criteria. I note that Dr. Clarke in 1991 after Mr. McGuire had been admitted to hospital in 1990, stated that she did not feel that he had a psychiatric illness and that his problems were predominantly personality based. This is confusing, but this confusion would be clarified if the hospital discharge summaries were made available.
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 [sic] 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 the conflict [sic] and mistrust between Mr. McGuire and his workplace colleagues eventually resulted in increasing anxiety within Mr. McGuire and him ceasing work.”
Notwithstanding those clear indications that the hospital records in 1990 would likely assist in resolving the issue of the link between the illness and the work problems, the respondent did not obtain them in order to prepare for the hearing before the Tribunal.
- The letter written by Dr Piaggio to WorkCover on 18 October 2001 was quite damaging to Mr Maguire, in particular the following, notwithstanding the helpful first paragraph:
“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
His wife reported at the first interview with me that the paranoid symptoms started in 1988 when this mans’ 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 had 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.”
- The uncontradicted evidence below was that Stelazine, even in the small dose that Mr Maguire was prescribed was capable of masking the symptoms of paranoia and the decision to cease its use, as Dr Piaggio noted, was work related. However, the learned trial judge noted that the balance of the report pointed to pre-existing symptoms in the mid-1980s or earlier. But, as his Honour found, there was an explanation for the evidence noted as “eccentric” by Dr Piaggio. Furthermore, his Honour noted, the opinion of Dr Cruickshank contained in Dr Piaggio’s report which, after exploration at the trial, was accepted by Dr Cruickshank to be erroneous and not actually held by him, was added to the weight of Dr Piaggio’s opinion. Dr Piaggio advanced no other actual symptoms to support a diagnosis of paranoia before late 1990 in his letter to WorkCover.
- Dr Piaggio “clarified” his report by a letter to WorkCover dated 3 June 2002 at Mr and Mrs Maguire’s request which was the fresh evidence considered by the Review Panel on 5 September 2002. He wrote:
“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.”
- Dr Piaggio elaborated on this view in evidence. Dr Brian Kirkup, a psychiatrist, who had dealings with Mr Maguire in 2000 noted that there was no evidence that Mr Maguire had a relevant pre-existing illness prior to the work related incident in 1990. However, he gave (telephone) evidence which the learned trial judge found uncontroverted which explained why Mr Maguire appeared asymptomatic before mid-1990:
“Tell me this [by Mr Morton]: Stelazine can be prescribed for abdominal upset, probably for want of a better word, can’t it?--Yes, depending on the cause of the upset. If it’s felt to be, for instance, a nervous complaint, an anxiety-related condition, then Stelazine would be quite appropriate. Even though it’s primarily used as an anti-psychotic, it’s certainly quite a powerful anxiolytic and would be quite reasonably prescribed for that reason.
But it would be unlikely to be prescribed for 10 years for that reason?--Not in my experience, no. One would – normally, if it were prescribed for that length of time, it would be being used for its primary purpose, which is to treat a psychosis.
HIS HONOUR: Doctor, it’s the Judge speaking?--Certainly.
Does it operate by dealing with the stomach upset or with the anxiety that’s causing the stomach upset?--It deals with the anxiety itself; it’s got no particular properties, as far as I’m aware, that would help with a stomach upset specifically.
MR MORTON: Thank you, your Honour. Doctor, could you assist me with this too, please: if it 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 [sic] 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.”
His Honour concluded, with respect, correctly, that Mr Maguire was probably in a position of considerable vulnerability to the onset of paranoid schizophrenia, while being free of overt symptoms before 1990.
- When the respondent discussed his claim with Mr Maguire in March 2002 after he had obtained legal aid to investigate and prepare the claim, he did so on the erroneous basis that it was, effectively, an aggravation of a pre-existing condition claim. That is, he accepted that Mr Maguire demonstrated pre-existing symptoms relying, at face value, on Dr Piaggio’s report to WorkCover. The respondent briefed counsel who argued at the hearing 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 Tribunal 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 had become unable to work because of what had happened to him at work. That is, his condition had been aggravated by the stress which he suffered at work and he was therefore entitled to be compensated for permanent impairment. His counsel gave evidence below that she did not think that Dr Piaggio’s report, taken as a whole, was adverse to his prospects on that approach.
- His Honour noted that 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 Tribunal took into account Dr Cruickshank’s letter of 10 January 1990; Dr Clarke’s report of 2 April 1991; Dr Stedman’s report of 2 March 1994; four reports of Dr C Wareing, a psychiatrist, which were not put before the court below; two reports of Dr Piaggio; a report by Dr Lawton; a report by Dr Kirkup; a report by Dr Murphy, a ‘file review’ by “External Medical Officer” dated 7 August 1991 not, apparently, in evidence below; a report marked “intern” of 16 May 2000 not, it seems, in evidence below; and, similarly, a report of Dr D McAdam Director of Pathology dated 5 – 12 May 2000. The Tribunal also considered Mr Maguire’s complete WorkCover file and all medical certificates and statements on file. That latter body of material was not before the court below.
- As the learned trial judge summarised in his reasons, the Tribunal gave its 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. His Honour took this to be a reference to the adjustment disorder with anxious mood found by the first Tribunal. The Tribunal 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. The Tribunal found that Mr Maguire 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 but held that that aggravation had ceased and, accordingly, there was no permanent partial disability resulting from the injury. As has been mentioned, Dr Piaggio wrote a clarifying report to the Tribunal about “the incidents” which made no difference to the decision of the Review Panel, which, presumably, was differently constituted to the Tribunal, but which considered the material before the Tribunal as well as Dr Piaggio’s supplementary report.
- The learned trial judge found that the respondent ought not to have permitted the report of Dr Piaggio and the report from the Barrett Psychiatric Centre (Dr Stedman), which supported an inference that Mr Maguire demonstrated symptoms of paranoia prior to 1990, to go before the Tribunal uncontradicted. His Honour said that:
“…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.”
His Honour found that despite this, the respondent was content to allow the matter to go to the Tribunal as an “aggravation” without any detailed examination of the pre-1990 position.
- His Honour set out what the respondent ought to have done.
“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 would 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 evidence to which it related.”
- These errors, his Honour concluded, could have been avoided if the respondent had prepared an advice on evidence or retained counsel to do so. The learned trial judge, having concluded that the respondent was negligent in his preparation for Mr Maguire’s appearance before the Tribunal, then considered causation. He said:
“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.”
- His Honour then considered what would have happened had the respondent taken up the inconsistent conversation with Dr Cruickshank and Dr Piaggio, and had put Mr and Mrs Maguires’ explanations of the two pre-1990 incidents to Dr Piaggio and Dr Stedman. He noted that Dr Piaggio’s letter of 18 October 2001 had long been with WorkCover before the respondent became involved so that all that the respondent could have done would have been to obtain a supplementary report, perhaps of the kind actually provided by Dr Piaggio. However, as his Honour found, Dr Piaggio considered that Mr Maguire was in the prodromal stage of the disease during the 1980s. His Honour conjectured that Dr Stedman may, if asked, have said that the Barrett Centre admission notes did not attribute delusions about Kerry Packer by Mr Maguire to any period in the 1980s. His Honour then concluded:
“With proper preparation Mr Maguire’s case could have 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.”
- There is no basis for concluding that his Honour fell into error in reaching this conclusion. The Tribunal, as his Honour recognised, was constituted by experts in the field of psychiatry. It was different to the often encountered case of professional negligence by a solicitor who, for example, allows a limitation period to expire in personal injury proceedings. The judge hearing the case of professional negligence in that circumstance applies the judge’s own understanding and “expertise” as to how such a case would progress and evaluates the loss of the chance without assistance. It is rather different when a court is asked to decide what a tribunal of medical experts might have decided if presented with different or additional material. His Honour’s process of reasoning as to how the Tribunal might have approached the different evidence demonstrates no error. To have a different outcome it would have been necessary for Mr Maguire to adduce evidence from an expert psychiatrist or psychiatrists that no reasonable Tribunal with the additional material would have found against Mr Maguire.
- Accordingly, in a very carefully reasoned judgment, no relevant error can be discerned.
- The learned trial judge dealt with the issue of quantum briefly but because no material had been placed before him, which would enable him to assess the amount of any weekly payments under the Workers Compensation Act 1990, he was unable to calculate any amount. There was no error in that conclusion.
- The appeal is dismissed. The appellant must pay the respondent’s costs to be assessed on the standard basis.
- DOUGLAS J: I agree with the reasons for judgment of Keane JA and White J and with the orders proposed by White J.
 (2005) 223 CLR 1 at 18 .
 Johnson v Perez (1988) 166 CLR 351 at 372; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 353 – 354.
 AR 321.
 On appeal Mr Maguire particularly emphasised his early sound mental health.
 AR 27.
 AR 237-8.
 AR 239.
 It seems not to have been tendered below and does not appear in the list of material considered by the Tribunal in 2002 which did have Dr Piaggio’s report.
 AR 339. This letter is referred to here out of chronological order so that there is some evidence of what occurred following Mr Maguire’s resignation from his work.
 AR 339.
 AR 418.
 AR 331.
 Which Dr Stephen Murphy, a psychiatrist, described in his report of 24 September 2001 to WorkCover Queensland as “confusing”.
 AR 338.
 AR 429.
 Apparently compiled at discharge on 2 March 1994, AR 341.
 AR 363.
 AR 424.
 AR 274.
 AR 337-8.
 AR 340.
 The learned trial judge said this paragraph identified the possible causes for the onset of his condition in late 1990, namely, the stress at work and the cessation of Stelazine.
 AR 347.
 AR 347-8.
 AR 265-6.
 AR 66.
 AR 434; paragraph 61 of the Reasons.
 AR 436; Reasons paragraph 68.
 AR 437; Reasons paragraph 69.
 AR 438; Reasons paragraph 72.
 AR 438; Reasons paragraphs 76 – 78.
- Published Case Name:
Maguire v Leather
- Shortened Case Name:
Maguire v Leather
 QCA 297
Keane JA, White J, Douglas J
26 Sep 2008
- White Star Case:
|Event||Citation or File||Date||Notes|
|Appeal Determined (QCA)|| QCA 297||26 Sep 2008||-|
|Special Leave Refused|| HCASL 48||12 Mar 2009||-|