Kilvington v Grigg[2010] QDC 496

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff has a superannuation policy with AMP Ltd. He has not worked for some time, for various reasons, but he is not entitled to be paid out the superannuation policy on the basis of age. In 2008 the plaintiff decided he would seek to have the balance of his superannuation paid to him on the ground of permanent incapacity. He obtained documents from AMP Ltd which indicated that such an application had to be supported by certificates from two medical practitioners dealing with issues relevant to the question of whether payment was to be made to him on this ground. At the time, the first defendant had been his general practitioner for some years, and the plaintiff sought from him such a certificate.

2. [2]
   The plaintiff was at the time also attending from time to time a community mental health clinic operated by the Health Department but separate from Ipswich Hospital, where he had seen the third defendant, who was a medical practitioner working at that clinic, but not a specialist psychiatrist. He also asked the third defendant to provide a certificate. At the time he believed that the third defendant was a psychiatrist (p 32); that was of some relevance in view of what he had been told about the requirements of AMP Ltd.  In the event, the first defendant did not provide a certificate for some time, and did no only after various things had passed between him and the plaintiff, and the third defendant did not at any time provide a certificate.

3. [3]
   The plaintiff alleges in these proceedings that the failure of the third defendant to provide that certificate was a breach of duty on the part of the third defendant, or a breach of a contract between the plaintiff and the second or third defendant, and that accordingly the plaintiff is entitled to recover damages in respect of financial loss that he has suffered as a result. He also relied on breach of statutory duty, breach of fiduciary duty, civil conspiracy and deliberate act causing harm. The plaintiff claimed that the defendants were also liable for aggravated and exemplary damages because of their conduct in the action. A similar claim was made in the proceedings against the first defendant; that claim was compromised prior to trial, and the action proceeded only against the second and third defendants. Apart from his oral evidence, three affidavits by the plaintiff were also treated as evidence in the trial.^[1]

4. [4]
   Those defendants disputed that there was any duty on the second defendant to provide the certificate, either in contract or in tort. They also deny that there was any statutory duty imposed under the legislation governing superannuation in Australia, or that there was any relevant fiduciary duty owed to the plaintiff.  They denied that there had been a civil conspiracy between the first and third defendants, or that the third defendant had intentionally done an act calculated to harm the plaintiff.  The defendants also submit that the plaintiff could not prove causation as, if the third defendant had provided a certificate to the plaintiff, it would not have satisfied the requirements of AMP Ltd and so the plaintiff would not have obtained a payment out of his superannuation balance in any event.  The defendants also disputed that the plaintiff had suffered the financial loss claimed by him as a result of the failure to obtain payment of the superannuation balance, given that the consequence of that was that the balance remained available for the plaintiff in the future.  The defendant also alleged the plaintiff had failed to mitigate his loss.

Background

5. [5]
   The plaintiff was born in 1957 and was admitted as a barrister in Queensland in December 1983, after graduating with honours in law: Exhibit 9.  He was subsequently also admitted to practice in the High Court, New South Wales, the Northern Territory and Tasmania.  He served for a time as an associate to a Supreme Court judge,^[2] and practiced as a barrister in Southport from 1984 to 1988, after which he spent two years practicing in Brisbane before spending two years travelling.  He worked for the Central Australian Aboriginal Legal Aid Service in Alice Springs in various periods, the first beginning in March 1992, or otherwise practiced as a barrister, including a period from December 2001 to April 2002 on the Gold Coast, before taking a position as a senior civil lawyer with the Legal Aid service in Alice Springs in April 2002.^[3]  He left that position in August 2005,^[4] and has not worked since:  p 25.

6. [6]
   The plaintiff has a significant history of mental illness, being apparently first diagnosed with depression in about 1985, soon after he started practice as a barrister: p 76.^[5]  There are a number of medical reports dealing with the plaintiff on one of the defendant’s files, Exhibit 24, presumably there because they were provided by the plaintiff.  Their location in the file does not provide any clear indication of when that occurred, but the plaintiff said that he had provided copies of these reports to the Mental Health Service, on more than one occasion.^[6]  There is a letter to a doctor, presumably a GP, from a psychiatrist, Dr Tabart, in Alice Springs dated 22 January 2001, which speaks of his having seen the plaintiff for the past year or so.  The letter does not give a particular diagnosis, and indicates that he has been treated with a variety of psychotropics without much success.

7. [7]
   A letter to the plaintiff from Dr Tabart dated 7 March 2001 referred to the plaintiff having been discharged from the Gold Coast Hospital.  It speaks of the plaintiff having a disturbed personality but the letter does not contain any particular diagnosis.  It does refer to previous alcohol abuse, causing some earlier therapy to be a failure.^[7]  A report dated 26 October 2002 from a psychologist, Mr Rushton, referred to his having seen the plaintiff over a number of months on the Gold Coast before the plaintiff moved to the Northern Territory.  It said the plaintiff had generalised anxiety disorder, dysthymic disorder, avoidant personality and associated severe alcohol abuse.  It noted a history of occasional major depressive episodes in the past.  There was a period in late 2002 and 2003 when the plaintiff was abstaining from alcohol, but by June 2003 he was drinking very heavily again.

8. [8]
   A further letter from Dr Tabart dated 10 December 2003 referred to the underlying problem as severe characterlogic disturbance stemming from experiences in childhood.  The letter also spoke of alcohol dependence and a lack of sobriety, which made it difficult to assess him for underlying mood disorder, and rendered antidepressants probably useless.  A letter from a general practitioner in Alice Springs dated 28 February 2005 referred to the plaintiff’s having been an extremely heavy drinker for many years, though he was not drinking at that time.  He was said to have a long history of disabling anxiety with obsessive compulsive tendencies, and referred to his having undergone electro compulsive therapy.  The electro compulsive therapy was administered in Darwin in 2004, and followed a period of inpatient detoxification.  It was given for depression, and he felt better after it, but once he was released from hospital he began drinking again and his condition became worse again.^[8]  His general health was said in 2005 to be poor.

9. [9]
   A letter from a drug and alcohol clinic in Melbourne dated September 2005 indicated that he had been an inpatient there for five weeks.  There is on the file a handwritten report apparently by someone associated with that clinic referring to an extensive psychiatric history, and diagnoses of post traumatic stress disorder, social phobia, and major depressive disorder; despite his treatment he continued to find it very difficult to be around other people and finds most environments terrifying.  That doctor did not think the plaintiff would be able to work for the next two years.

10. [10]
    In December 2005 the plaintiff was in Ipswich,^[9] where he had seen a psychiatrist, Dr Richardson, through the West Moreton Integrated Mental Health Service.  He wrote to the first defendant on 18 July 2006, as he understood the first defendant was then the plaintiff’s general practitioner.  Dr Richardson referred to a diagnosis to early onset alcohol dependence complicated by personality traits, and he subsequently diagnosed bipolar affective disorder.  There was some improvement with medication but the plaintiff began drinking again and that was complicating his treatment, since apparently there were some antidepressants he should not be taking while drinking.

The third defendant

11. [11]
    The third defendant qualified in medicine in India, graduating in 1996 and thereafter working in hospitals before moving to England in 2004, where he passed the qualifying exams and then worked as a house officer in psychiatry:  p 5.  In 2006 he came to Australia and worked in the Ipswich Hospital, after obtaining conditional registration; he was employed in the position of a principal house officer until early 2010 when, after he obtained unconditional registration, he became a registrar in psychiatry.  The significance of the appointment as a registrar is that it means he is engaged in a training program which if successfully completed will lead to his qualifying as a specialist psychiatrist.  The position of principal house officer was similar to the position of registrar in terms of the work that was done, but the holder of that office was not engaged in a training program for specialist qualification:  p 6.  No doubt for many purposes, a principal house officer is therefore treated the same as a registrar; one of the defendant’s witnesses, a “team leader” who worked at the Ipswich Mental Health Service, described the third defendant as a registrar when speaking of him at the relevant time, i.e. 2009.^[10]

12. [12]
    In the latter part of 2008 the third defendant was working at the Ipswich Mental Health Service, a unit which effectively provided outpatient psychiatric care, in contrast to the inpatient psychiatric care provided within the Ipswich Hospital:  p 8.  There was also a separate unit which provided psychiatric care for acute cases, something which was similar to, but not the same as, a psychiatric emergency department, as exists for example at the Royal Brisbane Hospital: p 36.  The system operated by the health department is that doctors who are registrars or principal house officers rotate through a number of different positions involved in mental health, essentially on a six monthly basis; for registrars, this is an important requirement for their training in psychiatry:  p 8.

13. [13]
    The third defendant first saw the plaintiff on 18 August 2008.  He had previously seen a different doctor on 24 April 2008.  It appears from the medical notes of the earlier visit, which are within Exhibit 24, that his mental state was much the same, that there were no particular problems, although the doctor noted “still drinking a lot and doesn’t want to give it up”.  He had been working on a book which had been occupying a lot of his time.  There is a note that he was looking for another job in his field, and was wanting to go to India.  The doctor’s plan was to continue the same treatment with a review in six weeks’ time; there was a note that the plaintiff visited his GP (the first defendant) on a regular basis.  It appears that thereafter the plaintiff did not keep appointments and there was some difficulty contacting him before he returned on 18 August and saw the third defendant.

14. [14]
    The third defendant’s notes of 18 August 2008 appear within Exhibit 24; there was also a typed up version within Exhibit               8.  There was some discussion about the psychiatric history, and his position at that time, which seems to have been much the same.  The notes refer to his drinking up to 20 beers a day, and he was not prepared to address alcohol issues at this stage.  There was a note that he has withdrawal symptoms if he does not drink, which he wanted to avoid.^[11]  He had in mind travelling overseas to Asia, since he felt that would be a way to cut down on his alcohol intake.^[12]  The third defendant adjusted his medication and encouraged him to cut down his alcohol intake.  There was no reference in the notes to any discussion about the plaintiff wanting a certificate for his superannuation.

15. [15]
    The third defendant said in evidence that he thought at the time that the plaintiff’s major problem was with alcohol: p 14.  The plaintiff’s mental state appeared to be stable, in view of the history given and the mental state examination, and he was concerned that the alcohol consumption could destabilise his illness.

Events leading up to the request for certificate

16. [16]
    The plaintiff had previously applied successfully to another superannuation fund, Australian Super, in 2006 or 2007, which had released the plaintiff’s superannuation account on the basis of the plaintiff’s permanent incapacity.^[13]  That application was supported by a certificate from the plaintiff’s general practitioner in Alice Springs, Dr Ingamells.^[14]  In 2008 he became interested in obtaining the AMP Ltd superannuation monies.  The reason for this was his deteriorating financial state.  He is receiving a disability pension, but that was (and is) quite inadequate to fund his actual level of alcohol consumption, even though he otherwise lives very modestly.  It appears that he has made up the difference essentially by loans (or gifts) from relatives, or at times by obtaining credit.^[15]  For example, at one time he obtained a credit card and ran up a large debt on that card, which is still owing.  Indeed, part of his claim for economic loss is based on the proposition that he has incurred interest (at a typically high level) in respect of that credit card debt which could otherwise have been cleared had the superannuation funds been available to him in a timely way.^[16]  He wanted funds to pay his debts, and to fund further overseas travel, as well as money to live on.

17. [17]
    In a letter dated 29 August 2008 AMP Ltd sent him forms by which he could apply for release of part of his superannuation money on the ground of financial hardship.^[17]    Presumably these were sent in response to some request from the plaintiff; he said that his interest was only ever in obtaining a payout on the ground of permanent incapacity, and this letter must have been sent by mistake (p 38), and that may well be correct.  In any case, I accept that the plaintiff did not obtain the correct forms from AMP Ltd until some time after 29 August 2008, and accordingly did not have forms available for the third defendant to sign on 18 August 2008.

18. [18]
    The plaintiff saw the third defendant again on 15 September 2008.  The notes in Exhibit 24 reveal that in the interim there had been a visit to Brisbane when he ran out of medication, or some medication, for a period, and developed a hypermanic episode.  It appears to have settled, at least to some extent, after he returned to Ipswich and recommenced on his medication, but the third defendant said that this episode was very concerning as indicating the beginning of a relapse:  p 15.  There are notes of a mental state examination with an assessment that the mental state is stable.  There was some adjustment to the medication, and further encouragement to cut down on alcohol use, with a reminder that help was available to him if he wanted to take that up.  Nevertheless, the notes record:  “Admits to drinking about 20 glasses of beer per day.  No plan or intention to cut down.”

19. [19]
    There was some reference to superannuation during this visit. The notes record: “Has plans to apply to release his superannuation funds.” It does not appear that at that time the plaintiff actually asked the third defendant to sign a certificate. There is nothing in the notes to suggest that that was the case, and the plaintiff was not able positively to contradict that proposition. The third defendant had no recollection of any such request being made at that time: p 19.  He thought it was not a good time for such a step because the plaintiff was quite unwell; he said he expressed his concerns to the plaintiff:  p 20.

20. [20]
    The plaintiff said that he obtained the forms from AMP Ltd in about September (p 79, p 37) and wrote both to the first defendant and to the third defendant enclosing the certificates to be completed plus an indexed bundle of copies of medical reports which he had obtained over the years.  Such a letter to the first defendant dated 14 October 2008 is Exhibit 3, but the plaintiff asserted that there was also a similar letter to the Mental Health Service:  p 41.  The plaintiff said that the letter was hand delivered to the Mental Health Service reception, but no such letter appears on the second defendant’s file for the Mental Health Service, and the third defendant denied ever having seen that letter.  The plaintiff seemed to accept that that denial by the third defendant was genuine:  p 42.  It does appear that there is a bundle of medical reports of the kind described by the plaintiff on that file, but there is nothing to indicate whether they arrived in the process of the plaintiff attempting to obtain the certificate, or whether they had been provided by the plaintiff on some other occasion, for example, soon after he began to see the Ipswich Mental Health Service; the reports pre-date the plaintiff’s beginning to visit that service after he returned to Queensland from Alice Springs.  On the whole, I think it likely that the plaintiff did deliver the letter and its contents to the Mental Health Service, but that it was not drawn to the attention of the third defendant personally.

21. [21]
    The plaintiff saw the third defendant again on 29 October 2008.  There was a reference in the notes to one part of his medication being reduced after seeing his GP, and the third defendant continued the existing medication.  There was some further discussion about cutting down on his drinking, with the third defendant again encouraging him to cut down, and the plaintiff “not prepared to stop his drinking hence does not want to attend ATODS”.  The notes record:  “Wants form filled to draw out his superannuation money.”  The plaintiff said that this was discussed at this time, and that the third defendant had or appeared to have the forms on his desk at the time when this discussion took place.  That cannot have been the case if the first set of forms went missing, as they had not by then been replaced. 

22. [22]
    The third defendant’s attitude was that he was not actually asked to sign a certificate at that interview, and that he had not been provided with a certificate to sign. He said that he was not familiar with a certificate in connection with obtaining a superannuation payment early on the ground of permanent incapacity, though he had in the course of his career signed various other certificates: p 19. The plaintiff, on the other hand, said that at least by the time of this appointment he was asking the third defendant to sign the certificate, that is to sign the form which he had previously left with reception and which he believed the third defendant had.

23. [23]
    According to the third defendant, his response to the plaintiff in October was that, because of the nature of his illness and because his condition was not stable at that time, it was not a good time for him to be making judgments about financial matters and that it was accordingly not appropriate for him to be making decisions about, for example, whether or not to apply for a payout of his superannuation: p 28. He said that the plaintiff was happy for him to contact the first defendant and he told him he would discuss the matter with the first defendant and take the matter from there; he said the plaintiff appeared to accept that that was the situation: p 29. He was concerned at the time about the plaintiff’s plans, and he wanted to make sure he was acting in the plaintiff’s best interests.

24. [24]
    Soon after 17 November, the plaintiff provided replacement forms to both the first and the third defendant.^[18]  The plaintiff did not say that at any time he actually took the forms with him when he saw the third defendant; he said that on a second occasion he delivered the forms to the Mental Health Service and left them with the receptionist.  The third defendant, however, maintained that he did not have the forms on this occasion, and had not seen them: p 28, p 49. 

25. [25]
    On 2 December 2008 the third defendant telephoned the first defendant and discussed the question of providing the plaintiff with certificates for his superannuation.  The plaintiff had also been seeing the first defendant, and had asked the first defendant to sign a similar certificate.^[19]  The first defendant was reluctant to provide the certificate, not because of doubt as to the existence of a disability; he said that he thought the plaintiff was always disabled in terms of alcohol:  p 37.  He went on to add that his major concern was that if he received money he would spend a lot or some on alcohol.  Certainly by 2 December 2008 the plaintiff had had contact with the first defendant in relation to the form being signed, had pressed the first defendant to sign the form, and the first defendant had resisted doing so.

26. [26]
    The third defendant’s note of a conversation on 2 December simply recorded that the first defendant was feeling very uncomfortable about filling in the forms and said he planned to talk to the plaintiff before Christmas and would advise about the outcome.  There are, however, no notes of any further contact with the first defendant before Christmas, and both defendants said there was no further contact.^[20]  The first defendant said that in this conversation he told the third defendant of his plan to get a letter, setting out how the money would be spent (p 42) but said nothing about any agreement between them to that effect.  The third defendant made no mention of this;^[21] he said they just discussed their reservations about providing the certificate: p 30.

27. [27]
    The plaintiff saw the first defendant on 20 December 2008, and had a long discussion about this desire to obtain his superannuation monies.^[22]  The first defendant said that at that time his concern was that, because of a constant intractable wish to drink alcohol, it was not in his best interests to obtain possession of this money.^[23]  His opinion was that the plaintiff’s mental illness made it more difficult for him to abstain from alcohol.  Because of this, he asked for a list of the things the plaintiff planned to spend the money on:  p 41. 

28. [28]
    One of the complicating features of this matter is that at one stage, apparently on 20 December 2008, the first defendant told the plaintiff that he would provide a certificate as required, provided that the plaintiff gave him a written undertaking as to how he proposed to deal with the money if it were released.  The plaintiff was very upset about this proposal, and challenged the first defendant about it,^[24] but says he ultimately complied and provided such an undertaking in a letter dated 23 January 2009:  Exhibit 5.  He also provided a similar undertaking to the third defendant, although again this was done by leaving it at reception at the Mental Health Service.  I accept that it was not provided directly to the third defendant.  I also accept that the third defendant never saw any such document (p 32), and that it was not part of any agreement between the plaintiff and third defendant that the third defendant would obtain such a document: p 33.

29. [29]
    The third defendant next saw the plaintiff on 5 January 2009.  On this occasion there were still some symptoms of the hypermanic episode from which he was recovering, and there was some further adjustment made to his medication.  The plaintiff was still drinking at the same rate and had no plans to cut down.  The plaintiff asked him again about signing the certificate, and he expressed concern that it was not appropriate for the plaintiff to be deciding financial issues at that time in circumstances where his medication was not stable and when he was recovering from a hypermanic episode: p 31.  The third defendant denied that he said at that time (or any time) that he would complete the form: p 32, p 68.  He said that the plaintiff was upset and angry that the form had not been completed and that it was necessary for him to try to diffuse the situation by explaining his reasoning.^[25]  The only matter noted about this was that the plaintiff “reported that he has discussed with his GP regarding release of superannuation funds.”

30. [30]
    The idea of a written statement of how the money would be spent appears to have come specifically from the first defendant. It may be, however, that when the first defendant was speaking to the plaintiff about the matter, he used terms which suggested that the third defendant also required such a form, or perhaps that the third defendant would provide a certificate if such a form were provided.^[26]  However, I do not accept that the third defendant ever decided that he would provide the certificate sought by the plaintiff and I therefore am not persuaded that the third defendant ever told the plaintiff or the first defendant that he would provide the certificate.^[27]  Insofar as the plaintiff’s case depends on the proposition that the third defendant at some point agreed with the plaintiff that he would provide the requested certificate, but then failed to keep that agreement, I am not persuaded that that agreement was made. 

31. [31]
    Such an agreement could not have been made until the point had been reached where the third defendant had actually been asked to sign the form, and I accept that from the time the third defendant was asked to sign the form his position was that he did not consider that it was appropriate to sign the form, essentially for two reasons. The first of these was that he did not think the plaintiff ought to be making decisions about financial matters of such importance in his then current mental state (p 39), and the second was that he was not prepared to express the view that the plaintiff was permanently incapacitated in terms of the formulation in the form.^[28]

32. [32]
    The opinion expressed by the third defendant in the witness box was essentially to the effect that, although the plaintiff had significant mental problems, the treatment of them was being seriously impaired by the alcohol dependence: p 18. If the plaintiff could avoid alcohol, the various other problems that the plaintiff had were, at least potentially, treatable: p 70. The third defendant said that he had known of cases of people with similar problems whose conditions were controlled by medication and who were able to continue to function at a reasonably high level, certainly able to continue to work. The third defendant’s position on this was essentially that, if the plaintiff could keep away from alcohol, his mental condition may well otherwise be able to be controlled adequately by medication so that he would be able to continue to work. At least unless and until such a thing had been tried, it was not possible to say that the plaintiff’s mental state was preventing him permanently from following his usual occupation, so as to say that he was permanently incapacitated.

33. [33]
    It did seem to me that a possible flaw in this reasoning was that the plaintiff’s alcohol dependence is itself a mental health issue. Such a condition is a recognised psychiatric condition,^[29] and there does not seem to be any doubt that the plaintiff was suffering from it, but despite the lengthy history and the numerous failed attempts at abstinence, the third defendant did not regard the plaintiff’s case as hopeless.  His position, as expressed to me, was that he had known of cases of people who had successfully given up alcohol, even after a long history of dependence, and that he did not like to give up hope that the plaintiff would at some stage follow such a course.^[30]  In those circumstances, he did not regard the plaintiff as permanently disabled by alcohol dependence either.  Leaving aside the question of whether or not that was a reasonable view, which I will address elsewhere, I accept that that was the third defendant’s actual view, and that in those circumstances he would not in fact have been prepared to provide the certificate requested by the plaintiff.^[31]  In those circumstances I think it most unlikely that he would ever have agreed to provide the certificate, and I am therefore not persuaded that the plaintiff has shown that he ever did agree to provide the certificate, whether unconditionally or subject to the provision to him of either an undertaking from the plaintiff (as sought by the first defendant) or a copy of the first defendant’s certificate.

34. [34]
    Soon after the visit on 5 January 2009, the third defendant left the Mental Health Service on 9 January having completed his rotation there: p 34.  Indeed, on 21 January he took annual leave, and was out of Australia until 18 February 2009, when he resumed duties at the Ipswich Hospital dealing with inpatients in the mental health ward there: p 34.  In the meantime, the plaintiff had seen the first defendant again on 19 January 2009, at which time he was told that he had to provide the undertaking before any certificate would be completed.  The plaintiff was most unhappy about this, but in fact completed an undertaking and delivered it to the first defendant’s surgery, and also left a copy with the Mental Health Service reception,^[32] though as usual it never came to the notice of the third defendant: p 33.  On 27 January 2009 the first defendant signed the certificate, and on 3 February 2009 his receptionist faxed a copy of his certificate to the Mental Health Service.^[33]  In late January and February 2009 the plaintiff attempted to obtain the completed certificate from the third defendant, by a number of attendances at the Mental Health Service, but that was unsuccessful; apart from anything else, the third defendant was not there:  p 82, p 56.

35. [35]
    The plaintiff was seen again at the Mental Health Service by a different doctor, Dr Lipohar, on 4 February 2009.  There is no reference in the medical notes made by Dr Lipohar (who did not give evidence) as to any discussions about the certificate which had been sought from the third defendant, nor indeed about what had happened to the third defendant.  She provided for a further review.  The plaintiff said that on this visit Dr Lipohar had his letter to the first defendant, which was part of the fax sent by him to the Mental Health Service, and told him she would have to speak to the third defendant about that:  p 88, p 50.  I accept that occurred, but that she did not in fact speak to him about it;^[34] he was at that time still on holidays.

36. [36]
    The plaintiff on 26 February 2009 served on the Mental Health Service a letter addressed to the third defendant demanding that he complete and return the certificate which had been sought from him, which letter, like other things that were left at that service, did not find its way to him: p 38, p 77.  In these circumstances it is unsurprising that he did not comply, though in the light of his evidence he would not have provided the certificate sought even if the letter had come to his notice.  This action was commenced on 19 March 2009.

37. [37]
    On 23 March 2009 there was a case conference at which reference was made to the plaintiff’s case, and someone has noted the decision “close next time”.  The plaintiff evidently had another appointment to see Dr Lipohar, who was seen on 24 March 2009.  At that time she told him he had stabilised.^[35]  It appears from Dr Lipohar’s notes that her plan included referral to the GP and review in five weeks.  Five weeks from 24 March is 28 April.  There is a note from Dr Lipohar on that date “DNA” (presumably did not attend) “letter to GP sent, close to the service”.  On 24 March 2009 Dr Lipohar wrote to the first defendant referring to a diagnosis of bipolar affective disorder and some intermittent diagnosis of anxiety and depression in the past, listing the current medication, stating that the plaintiff had been stable in his mental state for a while and advising that they would like to close the plaintiff to the Mental Health Service and would be grateful if he could accept this referral and follow him up.  In the light of this, I wonder whether Dr Lipohar’s intention was that the follow up in April 2009 would be undertaken by the first defendant.

38. [38]
    The records which I have do not reveal whether an appointment was in fact made for the plaintiff to attend on 28 April 2009.  They do, however, include a “fail to attend” process checklist in respect of his missing an appointment on that date, which is revealing.  None of the first three steps on the list, said to be appropriate for all missed appointments, has been ticked as completed, nor has the reference to a letter offering a new appointment time been ticked.  The item “second missed appointment” referring to a letter sent to GP and client closed to the service and discharge summary completed by the doctor has been ticked.  The only other note on the page is “closed to the service” and what looks like Dr Lipohar’s initials.  Dr Scott, who was the clinical director of the West Moreton Integrated Mental Health Service, conceded that appropriate procedures had not been followed in relation to the failure of the plaintiff to attend this appointment: p 13.  He said that in early 2009 the service was attempting to reduce the number of cases on its books in order to make its case load more manageable within the resources available, and for that reason efforts were being made to close to the service a number of clients who were thought to be able to be managed adequately in other ways: p 18-9.

39. [39]
    At some time, presumably after 24 March 2009, though the date is not clear and cannot be identified, the plaintiff attended the Mental Health Service, not perhaps in response to any particular appointment but because he was feeling quite disturbed at that time:  pp 87-8.  He was seen by the team leader, who essentially took him outside and explained to him that he had been referred back to his general practitioner, who would look after him.^[36]  The plaintiff seems to have accepted that at the time, though at least in retrospect he was quite upset about the way in which he was handled on this occasion, which he interpreted as the Mental Health Service refusing to treat him further because he had commenced the court proceedings.  I accept that that was not what was occurring, although it is unfortunate that the Mental Health Service did not check with the first defendant to see whether he was happy to accept the referral of the plaintiff to him, and would be continuing to treat the plaintiff.  In fact, after the action was commenced the first defendant refused to treat the plaintiff any further, and indeed had solicitors write to him warning him to stay away from his surgery.^[37]

40. [40]
    Although the plaintiff did ultimately have a certificate from the first defendant, no other certificate was forthcoming and no claim for permanent incapacity was ever made in respect of his superannuation payments. A claim for payment on the basis of hardship was made in December 2009, and a payment of $10,000 was made to him, the largest amount which could be made on that basis under the terms of that policy: p 47.  That was almost half the balance of the policy; a subsequent attempt to make a similar claim was rejected on the basis that only one such claim could be made every 12 months:  p 46.  Presumably it would be open to the plaintiff to make a further application once that time limit has expired, and if he did, he may well receive effectively the balance of his superannuation account in that way anyway.

The bases of the plaintiff’s claim – breach of contract – general

41. [41]
    The plaintiff alleges that there as a contractual relationship between him and the third defendant. This was said to arise out of the very nature of the doctor-patient relationship. I have some difficulty, however, with the notion that there is necessarily a contractual relationship in existence merely because there is a doctor providing medical service to a patient. Commonly that occurs on the basis of the patient consulting a doctor in the expectation that there will be a fee payable by the patient (or by someone else on behalf of the patient) for the provision of medical services. That has been the traditional concept of a contractual basis for the doctor-patient relationship. Where, however, medical service are provided by the government free of charge to patients,^[38] it is difficult to see that there is any consideration provided by the patient, which is an essential element of any contract.  At least in some circumstances, courts have held that there is no contract in circumstances where health care is provided by the government to the public,^[39] though it appears this would not apply to medical services which are the subject of a bulk billing arrangement, because they are characterised as a situation where the doctor accepts an assignment of the patient’s Medicare benefit in return for providing the service, something which does provide consideration from the patient.^[40]  In the present case, however, there was nothing of that nature, and the third defendant denies that there was any contract between the third defendant and the plaintiff.

42. [42]
    I have not been able to find any clear Australian authority on this point.^[41]  However, it seems to me that in principle the absence of consideration from the plaintiff is fatal to the existence of any contract between him and the third defendant in the present case.  In those circumstances, I am not persuaded that there was a contract, and therefore there necessarily cannot have been any relevant contractual duty owed by the third defendant to the plaintiff.

—breach of contract – specific contract

43. [43]
    It is alleged in paragraph 17 of the statement of claim that on or about 6 January 2009 (in fact, on the visit on 5 January 2009) the third defendant advised the plaintiff that he would complete the medical certificate if and only if the first defendant confirmed to him that he had or was going to sign his copy of the medical certificate.  I am not persuaded that any such advice was given on that occasion, or for that matter on any other.  There is nothing in the third defendant’s notes at the time to suggest that such a statement was made, although it was noted that the plaintiff had said he had discussed the release of the superannuation funds with the first defendant.  It may well be that the plaintiff thought that if the first defendant signed the certificate then the second defendant was likely to sign also, but I am not persuaded that the second defendant actually agreed to sign or advised that he would sign in such circumstances.

44. [44]
    The second defendant’s evidence before me, which I accept, was really quite inconsistent with that being his attitude at the time, in view of his evidence to the effect that he did not consider he could properly sign the certificate in the terms sought by the insurance company in the light of the opinion that he actually held. Accordingly, I reject this allegation. This is notwithstanding that the plaintiff’s version was recorded by him as early as 23 January 2009 when he composed a letter to the first and third defendants:  Exhibit 5.  My impression of the third defendant in the witness box was that he was very cautious, and that on this occasion, as he said, he was trying to defuse the situation, but I think it unlikely that he would have offered a specific commitment to the plaintiff.  He was always unhappy about the plaintiff’s accessing his superannuation money: p 21.  He may well have referred to the fact (which was true) that he had not heard further from the first defendant since their telephone conversation on 2 December, and may have said that he was waiting to hear from the first defendant, or something to that effect.  I suspect that the plaintiff has read more into what the third defendant said than was actually there.

45. [45]
    I therefore reject, so far as the third defendant is concerned, the plaintiff’s allegation in paragraph 29 of the statement of claim, on the facts.  It follows that there is no implied contractual duty as alleged in paragraph 30 of the statement of claim.

—negligence causing economic loss

46. [46]
    There can, however, be a duty of care imposed by law and enforceable by a claim for damages in tort, if the duty imposed is breached and loss is suffered as a result, whether or not there is a contract in existence. There is no doubt as a general proposition that the third defendant, like any medical practitioner, owed a duty to take reasonable care to avoid causing harm to the plaintiff in connection with his treatment of him, and this involved the exercise of reasonable professional care and skill on his part. The content of duty has usually been discussed in terms of the obligation not to cause physical harm to a patient, but in the present case the plaintiff alleges that the duty extends to causing financial harm or loss to him.

47. [47]
    Further, there is the complication that the duty usually arises in the context of the exercise by the doctor of the doctor’s professional skill by way of the provision of advice and treatment. In the present case, however, what was sought was not advice and treatment but a particular service, namely the completion of a medical certificate for use for a particular purpose. Assuming that there was a duty to be active in providing advice and treatment in relation to relevant medical matters to the plaintiff because the plaintiff was a patient of the third defendant, it does not necessarily follow that the duty extended to providing a medical certificate simply because the plaintiff asked for it.

48. [48]
    Of course, it might not necessarily be put on that basis; it would not I think be sufficient to give rise to a duty to provide the certificate simply that the plaintiff wanted one; but in accordance with ordinary principles, it may be possible to formulate a test for the existence of a duty of care to avoid financial loss, what is referred to as economic loss, on conventional grounds. However, it is clear that the mere foreseeability of economic loss is not sufficient to impose a duty of care. It may be also relevant to consider whether a difference exists between a situation where a patient would suffer some financial loss if the doctor did not provide a certificate, and a situation where a doctor is asked to provide a certificate with a view to the patient’s obtaining some financial advantage. Take the situation where a person in a contract of employment is entitled to take time off work to attend a doctor, but must produce a certificate from the doctor to the effect that the doctor has been seen by the particular patient, in order to avoid loss of wages for that period. In that situation, the patient would suffer a loss in the form of a loss of wages unless the doctor provided the certificate, and it may well be that there would be a duty on a doctor who was appraised of that situation to provide such a certificate.

49. [49]
    The position I think is a little different here. The absence of the certificate did not cause the plaintiff any loss, in the sense that that term is ordinarily understood; rather, the plaintiff was seeking a certificate for the purpose of obtaining a benefit or advantage. In late 2008 the plaintiff had a superannuation policy with a particular balance, and at the time the proceedings were commenced the plaintiff had the same superannuation policy and the balance was much the same, although there had been some increase.^[42]  What the plaintiff wanted to do essentially was to gain access to money which was not immediately accessible to him.  The question of whether the plaintiff suffered some harm or detriment as a result of not being able to access his superannuation balance is a question which would have to be decided objectively and is I think a question of some considerable difficulty.

50. [50]
    I need to say something more in relation to the question of foreseeability of harm. The present case is not one where the issue of foreseeability of economic harm is an obvious one. It is not obviously the case that a person is better off getting possession of superannuation funds early rather than retaining them as a financial resource for the future. On the face of it, viewed objectively, a person who obtains possession of his superannuation funds and then spends them could be seen as being, at least after they have been spent, worse off financially than he had been previously, so that the loss of a superannuation fund would I think ordinarily be seen as a detriment rather than a benefit. There may be an exception to that in circumstances where the effect of the release of the fund is to enable the person to discharge debts which carry a high rate of interest, but if the objective is, at least in part, to obtain possession of the fund so as to spend the money on various things (and in this context it may not matter very much whether it is a trip to Asia or buying alcohol), the effect of that will be to dissipate what is otherwise a financial resource available to the person.

51. [51]
    The plaintiff spoke with some feeling of the interference with his autonomy that was involved in preventing him from using the money in the way that he chose; but this was not something which was governed solely by the activities of the defendants. The whole point of superannuation, as it is regulated by Commonwealth legislation, is that it is a form of saving which involves making the money in the fund inaccessible to the person concerned until certain specific events occur, ordinarily until the person concerned retires after the minimum age for retirement for the purposes of the scheme. From the point of view of the legislature, the advantage of superannuation is that it relieves the general tax payers of the burden of supporting retired people after they retire, and for that purpose saving and investment in superannuation funds is encouraged by a variety of taxation concessions. That social benefit of the superannuation system would be lost if the funds could be readily withdrawn prior to retirement age, and accordingly access to the funds prior to retirement at not less than the specified age has been deliberately restricted by the legislature. To some extent, therefore, the plaintiff’s autonomy in relation to this money was restricted by the legislature rather than by the defendants.

52. [52]
    The plaintiff’s attitude at the time, and indeed his attitude during the trial, was predicated on the notion that he was (to him, obviously) permanently incapacitated, so that the funds would be available to him on that basis if only the doctors would complete the certificates. Even from his point of view, he was worse off as a result of their refusal to complete the certificates because his financial autonomy was being impaired, something to which he took strong objection, rather than because he was going to be worse off in financial terms as a result of the unavailability of the money. His concern was not to obtain some financial benefit or advantage, but to be able to do what he wanted to do, in particular, travel to Asia, about which he spoke with some feeling.  I accept he was sincere in this.  This he believed would be beneficial to him, particularly in terms of his spiritual and emotional wellbeing, but it is by no means obvious that it would have been in his financial interest.  It was also a potentially harmful choice for someone with the extensive health problems that he had.^[43]  Even if his previous experiences in Asia had suggested that neither his alcoholism nor his other mental health issues would be as troublesome while he was there as they were in Australia, he also had extensive problems with his physical health^[44] which obviously could have caused him problems while he was travelling in Asia.  That could well have been very costly for him.

53. [53]
    Accordingly, looked at objectively, it is difficult to see, even with the benefit of hindsight, that there is much in the way of economic harm which the plaintiff has suffered as a result of his being unable to access the superannuation funds when he wanted to do so. Looked at from the point of view of the third defendant, it is difficult to see how it would have been reasonably foreseeable that the plaintiff would suffer economic harm if he was not able to access this money to spend as he wished. To the extent that he was able to discharge existing debts which were carrying interest, there would have been some economic advantage, but to the extent that he was planning to spend the money in some way there would be, objectively speaking, an economic detriment. Accordingly, it is by no means clear that in the circumstances of this case it was reasonably foreseeable by the third defendant that the plaintiff would suffer economic loss as a result of a failure to provide the certificate.

54. [54]
    At this stage, however, assuming that the plaintiff was actually worse off financially as a result of the failure to provide the certificate and hence (presumably^[45]) the failure to obtain the superannuation balance, and that this was reasonably foreseeable to the third defendant, was there a duty on the third defendant to act so as to avoid that financial harm, by providing the certificate which was sought?

55. [55]
    This appears to be a novel case; neither the plaintiff nor counsel for the defendants was able to refer me to any authority on the question of a duty to provide a certificate in order to avoid financial harm, and my own researches have not brought anything to light. Indeed, there seem to be very few cases where issues of liability of medical practitioners in the context of certificates by them have been considered at all.

56. [56]
    One example of an unusual situation where a court had to consider a question involving a certificate was Furniss v Fitchett [1958] NZLR 396.  In that case the plaintiff sued a medical practitioner for psychiatric injury in the form of nervous shock as a result of her being confronted, during cross-examination in litigation against her husband, with a certificate given by the doctor to the husband to the effect that she exhibited symptoms of paranoia, she should if possible be treated, and examination by a psychiatrist was needed to diagnose her case and its requirements.  It was held that there was a duty of care on the doctor not to provide the certificate in circumstances where it was foreseeable that it could come to his patient’s knowledge and that if it did so she would suffer harm as a result.  In that case, however, the giving of the certificate was really incidental, and the case is an unusual example of the conventional principle that the doctor owes the patient a duty to take reasonable care to avoid harm in the form of psychiatric injury to the patient.

57. [57]
    It also appears to be generally accepted that if a doctor does decide to provide a patient with a certificate for use in a situation such as this, that is to show to a third party with a view to that third party relying upon the certificate for some particular purpose, the doctor will owe a duty of care to the third party in relation to the matters certified. If the doctor knows that the third party will be relying on the care and skill with which advice is given on the particular matter (i.e. in the certificate) there is a duty to exercise reasonable care and skill in the provision of that advice. Potentially, therefore, if the third defendant had chosen to give the plaintiff the certificate he sought and did not exercise reasonable care and skill in relation to the opinion that he expressed, with the result that the insurance company suffered economic loss, the insurance company may well have been able to sue for damages. Such a situation may provide a practical disincentive for a doctor to provide a certificate if that course is avoidable.

58. [58]
    Liability in Australia for economic loss separate from any personal injury or damage to property dates from the decision of the High Court in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529.  In that case it was held that the owners of the dredge which damaged an underwater pipeline were liable to the oil company that owned the oil that used the pipeline, and depended upon its presence for its operations, for economic loss suffered as a result of the damage.  The president of the Court of Appeal considered this and subsequent leading authorities in the area in Fortuna Seafoods Pty Ltd v The Ship “Eternal Wind” [2008] 1 Qd R 429.  Her Honour said at p 437:

“This developing area of Australian law has moved incrementally and cautiously. … Caltex and Perre^[46] suggest that the determination of whether a defendant owes a claimant a duty of care not to cause mere economic loss will depend on a combination of factors including the reasonable foresight of the likelihood of harm; the defendant’s knowledge or means of knowledge of an ascertainable, determinate class of persons who are at risk of foreseeable harm; the claimant’s vulnerability or whether they are unable to protect themselves from the foreseeable harm; whether the implication of a duty would impair the defendant’s legitimate pursuit of autonomous commercial interests including the existence of any contracts between the claimant and defendant; whether the damage flowed from the occurrence of activities within the defendant’s control; the closeness of the relationship between the parties and the existence of any other special circumstances justifying compensation.  There is, however, no simple formula to be applied in determining whether the application of these principles to the facts of this case has the result that ‘Eternal Wind’ is responsible for Fortuna Seafoods’ claimed economic loss.  The answer to that question requires some more detailed attention to the pertinent facts of this case.”

59. [59]
    That case involved facts which had some similarity to the Caltex case, in that it involved damage by the negligent navigation of a ship to property other than the property of the plaintiff, as a result of which the plaintiff suffered economic loss; in this case, the defendant sank a commercial fishing vessel owned by a different company which interfered with the plaintiff’s business processing and selling the catch from that fishing vessel; the two companies had a single integrated business, said to be a common arrangement of the fishing industry.  By a majority the Court of Appeal upheld the existence of a duty to the plaintiff in that case.

60. [60]
    Two things emerge in particular from this passage. The first is that it is necessary for a court to be very careful before concluding that a duty of care not to cause any economic loss exists in any novel situation. The second is that the existence and content in any particular case of such a duty of care depend very much on the individual circumstances of the particular case. It is not helpful, it seems to me, to address the issue with some degree of abstraction. It is not helpful to ask whether as a general proposition a doctor who is treating or has treated a patient and who is asked to provide a certificate in relation to that patient’s medical condition has a duty to provide the certificate, either generally or at least in circumstances where it is reasonably foreseeable that the failure to provide the certificate will cause economic harm to the patient. It is, in the light of that statement by the president, important to focus on the particular facts and circumstances of this particular case, and the question of whether the third defendant owed this plaintiff a duty not to cause him economic loss by refusing to provide this certificate.

61. [61]
    More recently, the Court of Appeal considered again the question of the existence of a duty to avoid economic loss in Meshlawn Pty Ltd v State of Queensland [2010] QCA 181.  The president in that case at [6] summarised the general position in a way which was consistent with what was said in Fortuna.  That case involved a question of whether the chief executive of a department, responsible for determining the closing hours of the licensed premises operated by the plaintiff, had negligently caused them economic loss as a result of a decision to cut back on a period of extended trading hours which they had previously enjoyed.  In that case (as in the present) there was no question of an indeterminate class of potential plaintiffs.  The plaintiffs were the particular applicants to the chief executive under the Liquor Act, and there would obviously be adverse economic consequences to them of a failure to exercise the power in their favour.  In addition, the applicants were vulnerable in the sense that, if their application was negligently refused, there was little they could do about it or to protect themselves from the consequential losses.  Nevertheless, the president at [21] considered a number of factors which led her to a conclusion that there was a duty on the chief executive only to act honestly and carefully to consider applications and all relevant material when exercising her power under the Act, a duty which would be breached only if no reasonable chief executive could have reached that decision.

62. [62]
    That is not the duty relied on by the plaintiff here; it was a duty “to honestly complete” the medical certificate: statement of claim para 30.^[47]  There is no reason to think that the third defendant did not act honestly and did not carefully consider the request that the plaintiff was making, subject to one point which I will deal with in a moment, nor is there any evidence that his decision not to provide such a certificate was one that no reasonable medical practitioner in his position would have taken.  The only independent medical evidence, that of Dr Nothling, a specialist psychiatrist, was to the effect that it was in the circumstances legitimate for the third defendant to have been concerned about the plaintiff’s ability to manage his finances, and hence the appropriateness of his taking a decision to have his superannuation funds paid out to him in view of his then current medical state:  Exhibit 21.  In addition, Dr Nothling shared the view that it may not be appropriate to determine that the plaintiff was permanently unable to resume his usual occupation, or any occupation to which he was suited by training and experience, until he had withdrawn from alcohol for a reasonable period of time in order to assess the extent of the impairment and disability from the underlying psychiatric disorder: p 97.  If therefore there were an equivalent duty to that formulated in Meshlawn in the present case, it would not assist the plaintiff.

63. [63]
    In Meshlawn Fryberg J agreed with the president in relation to the existence of a limited duty of care of this nature; the third member of the court, Chesterman JA, held that there was not even this duty of care.  That decision involved a complication arising because the defendant was exercising a statutory power; that is not the case here.  Although the court held that that was not necessarily inconsistent with the existence of a duty of care, the existence and terms of the statutory function were obviously matters of great importance in determining the extent and content of any duty of care in that case.

64. [64]
    One factor is the question of vulnerability to the actions of the defendant. Here there is the further complication, that the requirements of the superannuation fund apparently included that the certificates be from a doctor who had treated the plaintiff for at least six months, or who was a specialist.^[48]  At no time did the third defendant satisfy either of those criteria.  Although the plaintiff believed at the time that he was a psychiatrist, apparently on the basis that earlier the plaintiff had been seen by a psychiatrist while attending the Mental Health Service (p 79), what matters in terms of the imposition of any duty on the defendant is the actual state of affairs, not the plaintiff’s belief.  Nor can any estoppel be of assistance to the plaintiff; there was no evidence of any representation by the third defendant that he was a psychiatrist, and I think it quite unlikely that such a representation would have been made.^[49]

65. [65]
    As to the alternative requirement, the plaintiff submitted that, although he last saw the third defendant on 5 January, he remained the patient of the third defendant in a sense for some time thereafter, apparently on the basis that he remained the patient of the third defendant until such time as the third defendant had fulfilled all of his obligations as a treating medical practitioner, which included providing the certificate.  On this basis it was simply a matter of waiting until the six months period was up, and then providing the certificate.  The difficulty with this argument is that it is self justifying.  The doctor-patient relationship cannot be extended because of the need for the doctor to fulfil his duty to provide the certificate, if there is no duty on a medical practitioner to provide a certificate when the certificate would be of no use to the plaintiff, and therefore there could not have been a duty on the third defendant prior to the six-month period.  The doctor patient relationship came to an end when the third defendant moved to a different position, at Ipswich hospital.  Thereafter the plaintiff became the patient of his replacement, whom he saw on 4 February 2009.^[50]

66. [66]
    It may be in a particular case an important consideration that a particular medical practitioner is the only person who can provide a certificate sought by a patient to that patient. But that was not the position of the third defendant; indeed he was in the opposite position, in that on the face of it he did not satisfy the requirements of the insurance company as to who could provide a certificate. I cannot see how there can be a duty to avoid economic harm by providing a certificate in circumstances where on the face of it the certificate is not one which would be of assistance to the plaintiff.^[51]  The plaintiff also argued that for practical purposes the third defendant was the only other medical practitioner, apart from his general practitioner, who was available to him, because he could not afford a private psychiatrist, and the only public health psychiatric care available to him was through the Mental Health Service where he was being seen by the third defendant.  But I do not think that offsets the circumstance that on the face of it the certificate from the third defendant was not going to be of use to him.

67. [67]
    Even apart from these considerations, however, assuming that there was a duty, even the plaintiff accepts that the duty could not extend to providing a certificate which was inconsistent with the actual professional opinion of the doctor. The plaintiff seems to have assumed throughout that the actual professional opinion was that the plaintiff was permanently incapacitated in accordance with the relevant tests, but on the basis of the third defendant’s evidence that was not in fact his opinion at the time. I accept the third defendant’s professional opinion was in fact that he was unable to determine in the circumstances whether the plaintiff met the test for incapacity about which the insurance company sought his opinion, because the underlying psychiatric issues may well have been controllable by medication had it not been for the alcohol consumption, and the alcohol consumption, although quite consistent for a long time, was not necessarily permanent. In this respect, the third defendant’s opinion differed from that of the first defendant, and indeed from that of Dr Ingamells, but it was supported as a legitimate opinion by Dr Nothling, and I could not and do not find that it was an opinion at which no reasonable medical practitioner in his position would have arrived.  That conclusion, I think, is therefore necessarily fatal to the duty which the plaintiff alleges, a duty to provide the certificate.^[52]

—negligence, causing psychiatric injury or distress

68. [68]
    There is another aspect to this matter; the plaintiff also pleaded and advanced a case on the basis that the third defendant owed the plaintiff a duty of care not to occasion him psychiatric or psychological harm or in particular mental distress: statement of claim paragraph 42.  There are difficulties with such a claim.  If the allegation of breach of that duty in paragraph 43, that the actions of the third defendant caused the plaintiff to descend into severe mental distress and severe emotional despair and suffering, as set out in some detail in paragraph 49 of the statement of claim, amount to an allegation that the plaintiff has suffered psychiatric injury or an aggravation of his pre-existing psychiatric injury, there is the difficulty that the plaintiff has not complied with the requirements of the Personal Injuries Proceedings Act 2003 prior to commencing proceedings, a point which has been taken by the second and third defendants in paragraph 38C(b) of the defence.

69. [69]
    The plaintiff, however, maintained in submissions that he was not seeking damages for psychiatric injury, but rather damages for mental distress which was different from psychiatric injury. That may well be the case, but the difficulty for him in that situation is that, at least as a general proposition, damages for negligence are not recoverable for mere mental distress falling short of psychiatric injury.^[53]  No doubt there was a duty on the third defendant to take reasonable care to avoid causing the plaintiff psychiatric injury, or of aggravating the psychiatric problems he already had, but there cannot have been a duty on him not to cause the plaintiff distress.  Such a duty would have been inconsistent with his therapeutic obligations.  There must be numerous instances where it is appropriate to provide advice or treatment which is going to cause distress to a patient, but which is appropriate in the light of the plaintiff’s medical condition and the doctor’s actual opinion about treatment.

70. [70]
    This is of course in the context of an action for damages for negligence. There are some causes of action, such as defamation, malicious prosecution and other intentional torts, where damages for distress or disappointment can be and routinely are awarded.^[54]  If a person suffers a physical injury, then the assessment of general damages commonly includes allowance for distress.  In the case of psychiatric injury also, that injury is likely to be productive of distress to the plaintiff, which would be taken into account when assessing damages.  But one of the constraints on an action for negligently causing harm is that it does not extend to distress which falls short of psychiatric injury or at least an aggravation of psychiatric injury.  Emotional reaction such as distress or ordinary grief or sorrow are not compensated in themselves, for a variety of policy reasons directed to concern about the risk of indeterminate liability.^[55]  The position therefore in tort is that there will be a cause of action for negligence only when the damage extends to physical or some recognised psychiatric disorder.

71. [71]
    The plaintiff relied on a decision in Victoria in Giller v Procopets (2008) 24 VR 1.  But that was a case where the majority accepted that no cause of action existed for intentionally inflicting harm^[56] unless a recognisable psychiatric injury, as distinct from mere mental distress, had been inflicted:  see Ashley JA at [43], Neave JA at [475-8].  The plaintiff relied in particular on the judgment of Maxwell P, who dissented on this point:  see [2].  I prefer to follow the majority.  This was not a case where the court recognised that a cause of action in negligence would lie for causing harm which fell short of a recognised, or at least actual, psychiatric injury.  What matters, however, for present purposes is that, whatever the boundaries of the concept of damage for the purpose of negligently causing psychiatric injury, they remain an aspect of personal injury for the purposes of the Personal Injuries Proceedings Act, and therefore a claim which the plaintiff cannot pursue, at least in negligence.  In my opinion, there is no scope for negligently causing mental harm in the form of distress and similar symptoms which fall short of psychiatric injury so as not to amount to a personal injury for the purposes of the Personal Injuries Proceedings Act, but which are nevertheless actionable on the basis that they amount to sufficient damages for the purposes of an action for negligence.  Insofar as the plaintiff seeks to rely on the existence of such a category of case, I would reject it.

—breach of statutory duty

72. [72]
    The plaintiff alleged that the Superannuation Industry (Supervision) Regulation 1994, Regulation 6.01 impliedly imposed a statutory duty on a medical practitioner such as the third defendant to complete the medical certificate necessary within a reasonable time if the medical practitioner was honestly satisfied that the patient answered the description of total disablement by reason of incapacity or invalidity.  Section 6.01 is simply a definition section, and contains definitions for a number of terms including:

“Permanent incapacity, in relation to a member, means ill health (whether physical or mental) where the trustee is reasonably satisfied that the member is unlikely, because of the ill health, to engage in gainful employment for which the member is reasonably qualified by education, training or experience.”

73. [73]
    Obviously that provision does not impose any statutory duty on anyone. Section 6.17 of the Regulations provides that a member’s benefits in a fund may be paid only in certain specified circumstances, but must not be paid in that way except when and to the extent that the fund is required and permitted to do so under the relevant part.  Section 6.18 of the Regulation provides that a member’s preserved benefits in a regulated superannuation fund may be cashed on or after the satisfaction of a condition of release.  The term “condition of release” is defined in Regulation 6.01 as a condition of release specified in Column 2 Schedule 1.  Schedule 1 then provides “permanent incapacity” as a condition of release in Item 103 of Part 1, for which no restrictions are imposed in Column 3.

74. [74]
    Accordingly, the Regulation places responsibility for determining whether superannuation benefits are to be “cashed” on the ground of permanent incapacity on the trustee, since it is a matter for the trustee to be reasonably satisfied of the matters referred to in the definition of permanent incapacity. Although it is understandable and natural that a trustee would seek the opinion of medical practitioners in relation to that issue, so far as the Regulation and the legislation are concerned, it is a responsibility of the trustee to make that determination. The Act and the Regulation do not impose any obligation on a medical practitioner to provide a certificate, or at least no such provision has been identified and relied on by the plaintiff.

75. [75]
    In these circumstances, I cannot identify any relevant statutory duty on the third defendant in relation to the certificate. There can therefore be no question of any civil cause of action for breach of such statutory duty, something that in any event is not readily implied in the absence of some indication in the statute that there is an intention to confer such a cause of action.^[57]  The claim for breach of statutory duty therefore necessarily fails.  The plaintiff’s argument in relation to this really came down to saying that unless the doctors were prepared to provide a certificate, the plaintiff would be unable to satisfy the condition of release referred to in the statute.  That may well be a factor which is relevant in determining whether there was a duty to take reasonable care to avoid causing economic harm to the plaintiff, and the content of that duty, but it cannot be a basis for implying a statutory obligation, as well as a cause of action for breach of that statutory obligation.

—breach of fiduciary duty

76. [76]
    The plaintiff also claimed that the defendants, relevantly the third defendant, was subject to a fiduciary duty to the plaintiff which duty included undivided loyalty and a duty to act in the interests of the plaintiff in the exercise of a power or discretion: paragraph 32 of the statement of claim.  As pleaded, this was based on the existence of an agreement (which may have been conditional) on the part of the third defendant to complete his version of the certificate, an agreement which I have found did not exist.  In those circumstances, the claim for breach of fiduciary duty fails at the outset.

77. [77]
    Apart from that, the authorities are against the proposition that the fiduciary relationship existed here. In Breen v Williams (1996) 186 CLR 71 a majority of the court held that the mere existence of a doctor-patient relationship did not give rise to a fiduciary relationship, although in some circumstances doctors place themselves in a fiduciary relationship, or owe fiduciary duties or duties that had fiduciary characteristics.  For example, Gaudron and McHugh JJ in a joint judgment at p 107 contemplated that there may be a fiduciary relationship in relation to confidential information provided by the patient to the doctor.  In that case, the crucial issue was whether there was a fiduciary duty to provide the patient with access to the doctor’s records, and the court held that there was not.

78. [78]
    This was furthermore not a case where there was any identified conflict of interest, or where the third defendant might have gained some advantage in some way from the plaintiff’s not having access to his superannuation money. The position was simply that the third defendant thought that the plaintiff ought not to be making a judgment in relation to financial matters at a time when his psychiatric state was disturbed, and was not satisfied that the plaintiff was permanently incapacitated. As to the proposition that there was a duty to act in the best interests of the plaintiff, the same joint judgment in Breen v Williams rejected the notion that a doctor impliedly promised that he or she would always act in the best interests of the patient:  p 104.^[58]

79. [79]
    Speaking in the context of a contractual relationship between the doctor and the patient, their Honours went on to say:

“The primary duty that a doctor owes a patient is the duty ‘to exercise reasonable care and skill in the provision of professional advice and treatment’.  The doctor does not warrant that he or she will act in the patient’s best interests or that the treatment will be successful.  If a doctor owed such a duty, he or she would be liable for any act that objectively was not in the best interests of the patient.  The doctor would be liable for treatment that went wrong, although he or she had acted without negligence.  That is not the law of Australia.”

80. [80]
    Their Honours went on to set out good reasons why Australian courts do not imply a “best interests” term as a matter of law, into doctor-patient contractual relationship; I need not quote those in detail, but they provide a good justification for not imposing a fiduciary duty to act in the best interests of the plaintiff either.

81. [81]
    The difficulty here for the plaintiff is that his case is bound up heavily with the notion that the third defendant had agreed to provide the certificate, which I have found was not the case. In addition, it is based on the assumption that if the third defendant did provide his honest opinion in relation to the matters sought in the form, it would be favourable to the plaintiff, and that I find, in the light of the third defendant’s evidence which I accept, was not the case. Without these two aspects, the plaintiff’s argument in relation to fiduciary duty is fatally weakened.

—enforcement of ethical obligation

82. [82]
    In paragraph 34 the plaintiff seems to be seeking to enforce as legal obligations various ethical obligations of medical practitioners.  I accept that ethical obligations are recognised in relation to medical practitioners, and frequently those ethical obligations will inform questions which arise as to the existence of a duty, or the standard of care, or some other issue in a legal context.  But the ethical obligations are not enforceable as a matter of law per se.  It is not sufficient for the plaintiff to point to the fact that the defendant was in breach of an ethical obligation as a medical practitioner.  It is necessary for the plaintiff to articulate a cause of action arising as a matter of law on the basis of facts proved by evidence.  A mere reference to ethical obligations necessarily does not achieve that.  It is therefore unnecessary to consider this issue further.

—civil conspiracy

83. [83]
    Paragraph 36A of the statement of claim alleges a tort of civil conspiracy between the first and third defendants.  This unusual tort depends on the existence of an agreement between the first defendant and the third defendant for them to act in a way which would be damaging to the plaintiff, and for them to have implemented that agreement.  There is an issue on the pleadings between the parties as to whether there was an agreement between the first and third defendants that they would complete the medical certificates sought by the plaintiff only if the plaintiff delivered to each of them a document designating responsible applications of the funds if they were released.  For the reasons that I have given, I find that there was no such agreement between the first and third defendants.  I find that the production of such a document was entirely the idea of the first defendant, and was never sought by the third defendant.

84. [84]
    It is unnecessary therefore to look in any detail at the legal requirements for such a cause of action,^[59] since on the findings that I have made there was no agreement between the first and third defendants to engage in any particular concerted action, whether to deny the plaintiff the certificates or otherwise.  All that happened was a discussion about the matter, at the conclusion of which the first defendant was to see the plaintiff again, and to discuss the matter with him further.  The only thing on the evidence that was agreed was that the first defendant would report back to the third defendant, something which on the evidence did not occur except in the sense that, once the first defendant did eventually provide the certificate to the plaintiff, a copy of that was sent to the Mental Health Service with a view to its coming to the notice of the third defendant.  In those circumstances, the tort of civil conspiracy necessarily cannot be made out.

—promissory estoppel

85. [85]
    The plaintiff alleges that there is a cause of action on the basis of promissory estoppel, arising from the agreement alleged to have been made, although perhaps and only with the first defendant, that the first and third defendants would provide their certificates if the plaintiff prepared what he referred to in the pleadings as a “legal document”, that is to say if he gave a statement of what he proposed to spend the money on. It was alleged that the plaintiff went to trouble and expended money, in the form of a payment to a typing service, to prepare that legal document,^[60] and that accordingly the agreement is enforceable on the basis of promissory estoppel, so that the third defendant is liable to a mandatory injunction compelling him to complete his version of the medical certificate.  Without attempting to explore the boundaries of the doctrine of promissory estoppel, the plaintiff’s case as outlined in the pleading in paragraphs 39-41 is dependent upon the third defendant’s having agreed or at least represented to the plaintiff that if such a “legal document” was provided he would provide the certificate.  I am not persuaded that there ever was any such agreement or representation, so again this cause of action fails on the facts.

—Wilkinson v Downton

86. [86]
    Apart from that, the plaintiff relied on the principle in Wilkinson v Downton [1897] 2 QB 57.  In that case it was held that a wilful act or statement of the defendant calculated to cause physical harm in the form of psychiatric injury and in fact causing such injury to the plaintiff was actionable by the plaintiff.  That proposition was upheld by the High Court in Bunyan v Jordan (1937) 57 CLR 1, although on the facts of that case the court held that no tort had been committed.  It is a principle with which I have some familiarity, since I applied it in Bonham v Carrier (2000) 21 Qld Lawyer Reps 87, a case where I held that a parallel claim in negligence failed.  On appeal, however, the Court of Appeal held that I had erred in failing to find the defendant liable in negligence, and that the same considerations applied so as to produce the same result in both matters:  [2002] 1 Qd R 474.  Subsequently, the High Court in Magill v Magill (2006) 226 CLR 551 expressed the view that the Wilkinson v Downton line of cases should be regarded as cases which today would be accommodated within the tort of negligence.

87. [87]
    What was done in the present case was something far removed from the sort of case covered by Wilkinson v Downton; that decision was really concerned with what could be described as malicious acts, really a form of intentional tort.  That is not the situation here.  There is also the consideration that the duty on a medical practitioner, as identified in the passage referred to earlier from Breen v Williams, may well be inconsistent at times with the existence of an obligation enforceable by an action in tort not to do or say anything to the patient which would cause the patient harm in the form of distress.  It cannot be the case that a doctor is obliged to provide something to a patient if the patient is going to become upset and distressed if it is not provided, or even if the failure to provide it will cause or aggravate psychiatric problems, because otherwise the doctor will be liable for deliberately causing that result.  That is particularly the case when what is sought is a certificate which does not reflect the doctor’s actual opinion.

88. [88]
    In my view, what happened here did not come within the traditional principle of Wilkinson v Downton anyway, but in any case the effect of the recent decision of the High Court is that such a claim is to be determined by reference to the framework of the tort of negligence; either the plaintiff will succeed in negligence or the plaintiff will fail.  The plaintiff’s reliance on Wilkinson v Downton therefore adds nothing to the plaintiff’s case.

89. [89]
    What I have said covers I think all of the separate causes of action identified in the current statement of claim. Parts of it are a little difficult to follow, but I believe I have covered all the causes of action, or that, so far as anything else is relied on, the outcome will necessarily follow from the findings that I have made in relation to the causes of action I have identified. It follows that the plaintiff’s case fails generally against the defendants.

Causation

90. [90]
    Apart from these matters, the defendants raised a further question in relation to liability, that in any event even if the third defendant had provided the certificate it would not have assisted the plaintiff. This is because the third defendant did not satisfy the requirements for a certifying doctor laid down by the insurer, AMP Ltd. Exhibit 4 includes instructions from the insurer identifying what forms had to be obtained, and pointing out that the application for withdrawal on the ground of permanent incapacity had to be supported by one medical statement signed by two qualified medical practitioners or two medical statements each signed by a separate doctor.  The statement had to be dated and signed within the last six months and indicate how long the member had been a patient of the doctor.  It continued:

“It is a trustee requirement that the patient must be seeing both medical practitioners (GP) for a minimum of six months.  Where the medical statement is completed by a ‘specialist’, the six month period does not apply.”

91. [91]
    This was the only evidence about the requirements of the insurer. In these circumstances I do not think that the inverted commas around the word “specialist” are of any particular significance, and do not think that they suggest that someone other than a registered specialist, in the present case an actual psychiatrist, would satisfy the requirement in relation to the second medical practitioner. On the face of this material therefore, the third defendant did not satisfy either limb of these requirements, not having seen the plaintiff for six months (which did not come up until 18 February 2009, by which time he had ceased to be the treating doctor) and not being a specialist.  On the face of it therefore, if the third defendant had provided the statement, it would have been rejected by the insurer, and there would not have been a payout of the superannuation funds obtained.  On this basis, the absence of a certificate by the third defendant was not causative of the plaintiff’s loss, since the plaintiff would have suffered the same loss if a certificate had been provided by the third defendant even at the earliest opportunity.  It seems to me that this submission of the defendant is right, and is necessarily fatal to the plaintiff’s claim.

92. [92]
    It was submitted that the doctor-patient relationship should be regarded as continuing until the form had been completed, but I do not think that is the case. The plaintiff’s argument, that he remained the patient of the third defendant until the third defendant had completed his medical responsibilities towards him, really depended upon the existence of the duty to provide the certificate so as to provide a justification for the doctor-patient relationship. I have already considered and rejected this argument, in relation to the question of the existence of a duty, but the argument also arises in relation to the question of causation. Once the third defendant had been moved or rotated to a different position, he was no longer responsible for the patients at the Mental Health Service at Bell Street, and accordingly the plaintiff had ceased to be his patient.  Accordingly, it follows that this argument does not assist the plaintiff.

93. [93]
    The argument would not assist the defendants in relation to a claim for distress or indeed psychiatric injury as a result of the delay in providing the certificate, or indeed in providing a fair explanation as to what the situation would be in relation to the certificate. It does not appear that the third defendant ever saw the information from AMP Ltd setting out the requirements of a certifying doctor, so he was not in a position to know that he was not a person in a position to give a certificate, so far as the insurance company was concerned. No doubt if he had been aware of that it would have been a useful way for him to deal with the plaintiff’s requests that he provide the certificate. The plaintiff was in a position to know the requirements of the insurer, but assumed that the third defendant was a psychiatrist, who therefore met them. This misunderstanding led the plaintiff to the false belief that a certificate from the third defendant would be of assistance to him, and was perhaps the foundation of his concern about the attitude and behaviour, and particularly the failure to provide the certificate, of the third defendant.

94. [94]
    If the plaintiff had a claim for damages for emotional distress, or indeed psychiatric injury, as a result of the delay in making a final decision about the provision of the certificate, or even the failure to effect proper communication with the plaintiff, this argument would not assist the defendants, but these claims are either not actionable or cannot be pursued in this proceeding, as explained earlier. So far as the plaintiff’s claim is for economic loss or financial loss, arising because of the unavailability (or delayed availability) of the superannuation money, this argument in my opinion provides a good defence to the third defendant and hence the second defendant. It necessarily follows therefore that, on this ground also, the plaintiff’s case fails. Nevertheless, I will on a precautionary basis, and as best I can, deal with the question of damages.

Damages for financial loss

95. [95]
    In the statement of claim the plaintiff seeks damages for financial loss in the sum of $100,000, on a number of grounds: para 47.  The first of these is that the effect of the global financial crisis is that value of the plaintiff’s superannuation has declined, so that he is worse off with the current superannuation balance than would have been the case if he had had the money in his hand in early 2009.  That argument fails on the facts; the evidence is that between September 2008 and April 2009 the capital value of the fund increased rather than decreased, and there is no evidence that it has decreased since April 2009.^[61]  The plaintiff did not in fact suffer a loss because he failed to get his money out before the crash, largely because there really was no crash, at least not at the relevant time.

96. [96]
    Then it is alleged that the plaintiff has suffered a loss of the amount in the superannuation policy, if the plaintiff does not obtain a mandatory injunction, or if the superannuation trustees do not approve the release of the funds. It is not apparent how the defendants could be liable for a decision of the trustees not to approve the release of the funds, unless it was on the basis of some qualification introduced wrongly into a certificate by the defendant, but the real difficulty here is that it looks at the financial loss only in terms of the funds immediately available for the plaintiff, without giving credit for the fact that, if he did not obtain a payment out of his superannuation monies on the basis of permanent incapacity, the superannuation monies still remain in the fund for his ultimate benefit.

97. [97]
    Even if one had to apply a discount rate to determine what the present value was of the future receipt of the benefit in the superannuation fund at the time when the plaintiff will be qualified by age to achieve it, it is likely, given the concessional tax treatment of superannuation funds, that the balance in the superannuation fund would grow at such a rate as to offset the effect of discounting to a present value. Accordingly, I suspect that for practical purposes the present value of the balance in the superannuation fund is the balance in the superannuation fund. The mere fact that the plaintiff was not able to withdraw that balance does not in my opinion produce an economic loss, either to the extent of the value of the balance, or at all.

98. [98]
    It was then alleged that the plaintiff had suffered very high interest rates on his credit card as a result of relying heavily on the credit card to pay debts including considerable discretionary expenditure. It is certainly the case that the plaintiff has incurred a large credit card debt since late 2008. At the time when the plaintiff prepared the statement of how he would spend the money if it were released to him, on 23 January 2009, he identified a credit card debt of $3,500:  Exhibit 5.  As at 16 June 2010, the plaintiff’s debt on his credit card had risen to $15,696.79:  Exhibit 22.  As at 17 October 2010 it had risen to $16,071.94.  In that month the total of fees and government and interest charges was just under $290.  In September 2010 the bank sent him a default notice under the National Credit Code, and it appears that the bank is considering enforcement action, and may well take such action if it thinks that step worthwhile:  Exhibit 20.

99. [99]
    Despite the very high interest rates charged on credit cards, it is immediately apparent that the increase in the balance has not been attributed solely to the accumulation of interest; indeed, the plaintiff said that he had for a time been living quite heavily off his credit card: p 21, p 63.  The plaintiff’s evidence is clearly to the effect that he lives beyond his means, at least insofar as his means are limited to the disability pension.  That produces about $730 per fortnight, from which he pays $123 per week rent:  p 26.  He also spends some money on food, but during cross-examination he agreed that he would spend of the order of $400 per week or more on alcohol:  p 27.  It appears from the details given there that he essentially makes up the difference on borrowed money, being supported by various family members and friends.  He claims that he keeps track of all of these loans, and says that he intends to pay them back, although obviously he will be unable to do that, at least without giving up alcohol, particularly bearing in mind that they include an amount of $50,000 made available by members of his family to fund the education through boarding school of his younger daughter.

100. [100]
     Indeed, it occurred to me during the trial that the weakness in the argument of the first defendant, that if the superannuation money was made available to the plaintiff it would simply fund increased alcohol consumption, was that in fact the plaintiff consumes the alcohol whether he has the funds to pay for it or not. That is to say, his alcohol consumption does not appear to relate to the availability of funds to pay for it. In those circumstances, preventing the plaintiff from accessing the superannuation funds will not have the effect of cutting down on his alcohol consumption.

101. [101]
     It does appear, however, that the plaintiff could have discharged the debt of $3,500 and that the plaintiff would have avoided running up large debts on which very high interest rates are charged on the credit card if he had other funds available. In essence I think it is more probable than not that the plaintiff would not have the credit card debt that he has today if the superannuation monies had been made available to him, and to that extent he is prima facie $16,000 worse off, though again allowance must be made for the fact that the plaintiff retains the money which would otherwise have been spent paying credit card debts or avoiding incurring credit card debts.^[62]  For practical purposes, therefore, the plaintiff’s loss represents the amount run up on interest on credit card debts.  That amount was not proved with precision by the evidence before me, but doing the best I can I would estimate a figure of $5,000 for it.  That amount can be seen as economic loss.

102. [102]
     Further, it is said the plaintiff is at risk of bankruptcy and will lose the convenience of being able to use the credit card (which no doubt he already has lost) and will lose the built-in travel insurance on the card if he used it to travel. That is related to the claim that he will be unable to travel to Vietnam.  As to that, whatever benefits or advantages may accrue to the plaintiff in terms of his spirituality (p 71), his satisfaction with life, or even his ability himself to manage his mental health issues and his alcoholism if he were to travel to Asia, it is quite impossible for me to make any assessment of whether there would be, in strict economic terms, an advantage or a disadvantage to the plaintiff in travelling to Asia.

103. [103]
     No doubt day to day life is much less expensive in Asia than in Australia, but on the other hand there are travel costs involved, and if the plaintiff develops medical problems, particularly perhaps problems with his physical health rather than his mental health, the cost of obtaining proper medical treatment, if it can be obtained, is likely to be very high. Apart from the plaintiff’s mental health problems, the plaintiff has considerable problems with his physical wellbeing as set out in the more recent medical reports, particularly two reports from a specialist physician obtained this year, which are within Exhibit 1.  I will not go into the details of these conditions, but it is obvious from these reports, and indeed from, for example, the notes of Dr Grigg which are, or some of which are, Exhibit 2, that the plaintiff frequently consults doctors about various health issues apart from mental health issues.  It is by no means clear how this would impact on the plaintiff if he were travelling in Asia, but it could well be the source of considerable expense.  It is not clear (and there is no evidence) as to what extent such costs would be covered by the travel insurance he believed he would obtain using his credit card.   Accordingly I cannot find that the plaintiff is worse off in terms of economic loss because of his inability to travel to Vietnam, or indeed anywhere else in Asia.

104. [104]
     Another matter relied on by the plaintiff is that he has lost the opportunity to finalise a book that he has been writing. The plaintiff’s literary efforts are no doubt a source of pleasure and intellectual stimulation to him, but on the evidence that I have, I could not find that they were a source of any remuneration,^[63] so that there was any economic loss suffered by the plaintiff as a result of his inability to write a book, or indeed, as he claims, to complete a novel which he has almost finished.  The plaintiff has written a number of works detailed on the last page of Exhibit 9, but only one of these was published, “Judas – An Imaginary Life of Judas Iscariot” published in 2004:  see also Exhibit 11, which includes reviews of it in The Age and The Sydney Morning Herald, both of which are on the whole favourable.  Exhibit 11 includes a couple of short extracts from the book; it is certainly well written, though not the sort of thing that I would ordinarily choose to read.  More importantly, on the evidence it produced no significant financial return to the plaintiff.

105. [105]
     I was also provided with some information about an unpublished work, “Point at the Moon”, which exists in manuscript form: Exhibit 12.  The plaintiff has been making some attempts to have this published, and one of the witnesses spoke of having people read the book, and said that some people liked it and some did not.^[64]  As the plaintiff conceded, it is very difficult to get literary works published in Australia, and no doubt even more difficult to make any real money out of them:  p 71.  On the whole, I am not persuaded that the plaintiff has suffered any economic loss because of any interference with his literary work as a result of the failure to obtain the superannuation monies.

106. [106]
     Apart from the extra interest incurred, therefore, it is difficult to see that the plaintiff has suffered any real financial loss as a result of the failure to obtain those monies. One issue which arises is whether there would have been any offsetting loss if he had obtained the money, bearing in mind of course that if he had the balance as cash in his hand he would lose the advantage of the superannuation fund. Insofar as he would have spent the funds paying debts which he otherwise would have to pay anyway, then he would not be any worse off financially as a result of getting the superannuation funds, and a number of the matters identified in Exhibit 5 represent paying existing debts, including fees to typists, rent at his boarding house and an unpaid parking fine.  His motor vehicle also needed repairs for which he was seeking some money.

107. [107]
     An amount was wanted for a trip to Vietnam, and as I have said it is difficult to know how this should be treated.  I cannot find that there was a financial or economic loss as a result of being unable to go to Vietnam, but by the same token I cannot find that there was a financial advantage in being unable to go.  Some of the other matters that the money was to be spent on are I think more dubious.  That included some money for presents for his daughters, and to fund visits for the younger daughter (this occurred before she went into boarding school in Brisbane).  Also included were money for a typist to do more work on further projects, and preparing for publication papers on physics and chemistry.  The chemistry paper is said to be about “Brown’s gas”, of which I know nothing, but the physics paper, the thesis of which is that the universe consists of eleven dimensions, an insight said to have come to the plaintiff during a period of mania, is not obviously a productive use of funds.

108. [108]
     Even aside from the possibility that some of the money might have been spent on alcohol (which I am inclined to think was spent on alcohol anyway), there are some items in this list which suggest that if he had received the money some of it at least would in objective terms have been wasted. This makes it very difficult to quantify any overall economic loss. In all the circumstances therefore, I am not persuaded that on the balance of probability any economic loss has been proved as a result of the inability to access the superannuation funds.

Damages for mental distress

109. [109]
     The other matter which I should say something about is compensation for mental distress. I do not doubt that the frustration the plaintiff felt at being unable to obtain what he believed he was entitled to obtain caused him considerable mental distress. For what it is worth, I think it quite likely that it aggravated his psychiatric illness, although there was no actual medical evidence to support that view. He did describe episodes of acute mental distress occurring since the time the dispute blew up, and it was obvious the plaintiff has been very upset by the whole thing. There was the incident when he said that he went to the Mental Health Service in need of care and he was effectively turned away, and he was very distressed at that time. There was another occasion when he became very distressed and felt that there was nowhere that he could turn.

110. [110]
     There was evidence that at about Easter this year he was very depressed and suicidal. On one occasion he was so distressed that he wrote a very strange letter which he presented to the police, all about the possibility of his having engaged in some criminal conduct with the daughter of a friend of his: Exhibit 14. On another occasion in the course of a dispute with the solicitors for the defendants in relation to disclosure, he wrote a long, rambling and very strange letter which is significant really as an illustration of the extent to which he was distressed and disturbed as a result of these matters: Exhibit 13. All of these matters are of concern, and indicate that there was certainly significant mental distress suffered by the plaintiff in the period since January 2009. To some extent in the very early period this was associated in part with the behaviour of the first defendant as well as the behaviour of the third defendant, and I must disregard any effects caused by the behaviour of the first defendant, but once the first defendant had provided a certificate it seems to me that the distressed caused thereafter was attributable solely to the third defendant, for which the second defendant is responsible.

111. [111]
     It is very difficult to know how to assess damages for mental distress falling short of psychiatric injury. This is necessarily not a matter governed by the Civil Liability Act and Regulation, and I think that perhaps the best guide would be, common aw decisions in relation to damages for psychiatric injury.  These will have to be discounted, bearing in mind that on the hypothesis on which I am assessing damages the plaintiff did not suffer actual psychiatric injury, though there would perhaps be not very much difference and little discount involved because it seems as though the mental distress he suffered was similar in many ways to the sort of distress one would suffer from psychiatric injury.  On the other hand, there would be the prospect of a fairly rapid recovery for the plaintiff, at least if this litigation been successful, as would have been the case if damages were actually being awarded, so I am concerned with mental distress only for a relatively short period; some of the psychiatric injury cases produce injuries which are expected to have long lasting effects.

112. [112]
     Overall, therefore, and doing the best I can, if I had to assess damages for mental distress I would assess a sum of $25,000. However, as this is a precautionary finding, as for the reasons I have given there is no liability for damages for mental distress.

Aggravated and exemplary damages

113. [113]
     The plaintiff also claimed aggravated and exemplary damages on two bases. The first was in respect of what he described as a refusal to provide mental health services to the plaintiff at the Bell Street Mental Health Service after the action was commenced, a matter I have already referred to. The circumstances surrounding the closing of the plaintiff to that service are very strange, and it is clear that proper procedures were not followed. Nevertheless, I find it plausible that there was a great deal of pressure on that service and pressure therefore to discharge patients who were seen as stable or relatively stable. The plaintiff may well have been seen as relatively stable in early 2009, and I suspect that it was a combination of the plaintiff’s stability when last seen by Dr Lipohar and the fact that he missed an appointment that was seen as providing a justification for discharging him. 

114. [114]
     I am not persuaded that he was in fact discharged because of the commencement of the proceedings. The whole matter was I think handled very badly by that service, and is another example of what, so far as I have been able to tell on the evidence before me, was the apparent stunning administrative inefficiency of that service, though to be fair that has not been litigated as such and accordingly the second defendant has not really had the opportunity in these proceedings to call evidence to defend such an allegation. Indeed, in other circumstances I might have been sceptical about the third defendant’s denials of ever having had any of the material which was left to be passed on to him, but overall the evidence all points in the direction of administrative inefficiency rather than anything more sinister as an explanation for this. Besides, this service is part of Queensland Health, which is scarcely a bi-word for administrative efficiency.^[65]  Accordingly, I do not consider that either aggravated or exemplary damages are available on this ground.

115. [115]
     The second matter relied on was that the solicitors for the third defendant had failed to make proper disclosure for a long period, in that in the initial list of documents they had disclosed the contents of three medical files simply by reference to their being files. It was submitted by the plaintiff that this was not proper disclosure and that it was necessary for the plaintiff’s to go through and list all of the relevant documents within each file. But the contents of the file were very likely to be all or substantially all relevant; indeed, ultimately all three files were tendered in the course of the trial.

116. [116]
     Giving discovery of documents by way of bundles is a very longstanding practice, and has always been acceptable so long as the documents are capable of being identified later.^[66]  The only deficiency in the present case in the defendant’s disclosure was that the documents within the files were not individually numbered, for the purposes of identification.^[67]  For that reason strictly speaking the disclosure was defective.  In theory, however, the matter could have been overcome if the plaintiff simply sought and was given a complete copy of the documents.  That might have been subject to theoretical criticism on the ground that it amounted to overdisclosure, but it would certainly have provided the plaintiff with copies of all of the documents that could have been relevant and subject to disclosure.

117. [117]
     That would have overcome the matter, and would have been the obvious way in which to deal with it; unfortunately the matter became bogged down in the plaintiff’s insistence that the contents of the files be listed individually.^[68]  I do not consider that that was required under the rules, and in those circumstances it is perhaps unsurprising that it was resisted by the solicitors for the defendants, although ultimately they did comply, I suspect simply to placate the plaintiff.

118. [118]
     One matter that did surprise me in the course of the trial was that it seemed to be very difficult for the defendants to be able to produce a proper copy of the Mental Health Service file, that is a complete copy of all the documents, or at least all the relevant documents, on the file. It took them three attempts to produce Exhibit 24, which was supposed to be a complete copy, and I am by no means confident that it is.  This I suppose is one of the advantages of discovery being conducted properly, that is to say, by numbering the documents or pages in the bundle and then identifying them by reference to a bundle or a file containing documents numbered one to whatever.  I think there was some defect in the disclosure by the defendants’ solicitors, but I do not consider that this involved any deliberate attempt on their part to crush or discourage or upset the plaintiff, and I would not consider that the circumstances justify an award of aggravated or exemplary damages.

119. [119]
     There is the further difficulty with any award of aggravated or exemplary damages, in that I accept that exemplary damages cannot be awarded unless compensatory damages are also proved.^[69]  Although that is particularly clear in the case of exemplary damages, I consider that by analogy the position is the same in relation to aggravated damages, and if other damages cannot be proved, an action for negligence will fail even if, had other damages been proved, aggravated damages would have been awarded.  There is therefore no basis for the award of aggravated or exemplary damages on either ground relied on by the plaintiff, and such damages cannot stand on their own anyway.

Conclusion

120. [120]
     Perhaps I should say that there are some things that I do not think I need to make any findings about. It is not for me to decide whether or not the plaintiff in fact met the test for permanent incapacity referred to in the superannuation regulation. It follows that it is unnecessary for me to consider questions such as whether or not the plaintiff was capable of managing his money at the time he made the request of the doctors, and whether or not the doctor was “correct” in his view in relation to whether the plaintiff met that test. I have already found that the third defendant’s opinion was not one which no reasonable medical practitioner in his position would have held. It is not appropriate for me necessarily in terms of the issues in the action to make a finding about whether the plaintiff met that test, and I do not do so.

121. [121]
     It is also unnecessary for me to make any findings about the nature of the plaintiff’s alcoholism, and the extent or otherwise to which it interferes with his ability to manage his life, and manage his finances, and would interfere with his capacity to make decisions in relation to financial maters. It is also unnecessary for me to make any findings as to his ability to function as a barrister, though for what it is worth, although aspects of this case and the conduct of this litigation were no doubt facilitated by his legal training, the plaintiff’s conduct of the case, formulation of the issues and presentation of argument did not provide any support for the notion that he is or is likely in the future to be able to function as a practising barrister.

122. [122]
     An aspect of that was that I was presented with very long and somewhat rambling submissions on behalf of the plaintiff. I am sorry if these reasons ultimately do not do them justice; I have attempted to deal as well as I can with the issues identified in the pleadings and that emerged as real issues in the course of the trial. I believe that the findings that I have made deal with all of those issues, and deal with the substance of the matters raised by the plaintiff in the course of his submissions. Because they are so long and detailed, it is not practicable for me to respond in detail to every point made by the plaintiff in his submissions. Most of them are dealt with either directly or indirectly in the course of the reasons that I have given; to the extent that there are others that are not, it is sufficient to say in a general way that I am not persuaded by them to depart from any aspect of the reasons set out earlier.

123. [123]
     The plaintiff’s action overall fails. Unless some other order is appropriate for reasons not known to me, if the defendants seek costs it will be appropriate to order that the plaintiff pay the defendant’s costs of and incidental to the action to be assessed, but I will await the delivery of these reasons to see what happens.