Colefax v Hojaij[2021] QDC 324

DISTRICT COURT OF QUEENSLAND

Summary

1. [1]
   The appellant, a professional engineer who lost income after a flawed psychiatric assessment as to his capacity to practice, now appeals the summary judgment of the Magistrates Court in Cairns made on 11 May 2021.  The court awarded judgment to the respondent/defendant having been satisfied that the appellant/plaintiff had no real prospects of succeeding in negligence because the respondent psychiatrist did not owe a duty of care to the appellant, and there was no need for any trial.
2. [2]
   The grounds can be distilled into the determinative question as to whether the respondent psychiatrist owed a duty of care to the appellant/plaintiff professional engineer in conducting the health assessment pursuant to section 35E of the Professional Engineers Act 2002 (Qld).
3. [3]
   The appellant contends that the respondent did owe the appellant a duty of care in carrying out the assessment because there is no conflict of interest or duty, inadmissibility of the report is not determinative, and the statutory role was not exclusive of such a duty.  Therefore, it is argued, the appellant’s claim has a reasonable prospect of succeeding and needs a trial.  On the contrary, the respondent contends that there is no such duty and the appellant’s claim is bound to fail.  The respondent argues that a duty to the appellant conflicts with the statutory context and objectives to protect the public interests, and the engagement contraindicates any doctor patient relationship.
4. [4]
   I have concluded that the contended duty of care is incompatible with the nature of the assessor’s functions exercised by the respondent, the statutory constraints and protections and the statutory objectives to fulfill the public interests.  In my view, the invocation of the law of negligence to allow the recovery of damages for a substandard assessment in breach of a duty of care to the subject engineer, in circumstances where the statute renders the causative outcome inadmissible and the assessor not compellable, cannot be reconciled satisfactorily.  
5. [5]
   In the absence of a duty of the respondent to take reasonable care to avoid causing the appellant’s loss of income, I am bound to conclude that the appellant’s claim has no real prospect of succeeding, is doomed to fail, and a trial is unnecessary.
6. [6]
   For these reasons, in my respectful view, I am not satisfied that the learned magistrate erred, I affirm the summary judgment of the Magistrates Court in Cairns made on 11 May 2021 and dismiss the appeal.

Mode of Appeal

7. [7]
   The appellant appeals from the Magistrates Court decision pursuant to s 45 of the Magistrates Courts Act 1921 (Qld). 
8. [8]
   This court has the same powers as the Court of Appeal when hearing an appeal.^[1]  Those powers are contained in Part 3 Division 1 of the Supreme Court of Queensland Act 1991, and the relevant rules, in particular Chapter 18 Part 3.  By virtue of rule 785 of the UCPR, Part 1, other than rules 746, 753, 758, 766(3), 767, 776 and 777, applies to appeals to the District Court, with necessary changes, and subject to any practice direction of the court in which the appeal is brought.
9. [9]
   The mode of the appeal is by rehearing.^[2]  This court effectively tries the matter over again on the record of evidence before the trial magistrate.  The court is empowered to draw inferences of fact from that evidence,^[3] and any fresh evidence it allows on special grounds.^[4]  Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.  In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.^[5]
10. [10]
    The appellant must demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.^[6]
11. [11]
    Pursuant to s 47 of the Magistrates Courts Act 1921 (Qld), on the hearing of the appeal this court may:

    1. (a)
       draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed; 

    2. (b)
       order a new trial on such terms as it thinks just; 

    3. (c)
       order judgment to be entered for any party; 

    4. (d)
       make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties; 

    5. (e)
       as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;
    6. (f)
       make such order with respect to the costs of the appeal or special case as it thinks proper.

Background

12. [12]
    The appellant practised as a professional engineer from 1972.  He was a registered professional engineer in Queensland from about 1977.
13. [13]
    In or about 2016, a complaint was made to the Board of Professional Engineers of Queensland about the appellant’s capacity.  And the appellant expresses some personal insight into his mental state evidenced in a note made on 15 June 2016.
14. [14]
    On 23 March 2017 the Board required the appellant to undergo a health assessment to determine his fitness to practise pursuant to s 35E of the Act. 
15. [15]
    The Board appointed the respondent psychiatrist to assess whether the appellant  “is currently unable to competently and safely practise as a registered professional engineer”.  The respondent was made aware that the appellant had rights of review, and that the assessment report was not admissible in any proceeding except concerning registration.  The health assessment was carried out by the respondent with the full co-operation of the appellant between April and June 2017. 
16. [16]
    In reliance on the resultant assessment report which? was delivered on 18 June 2017, the Board cancelled the appellant’s registration to practise as a professional engineer in the State of Queensland on 7 August 2017.
17. [17]
    Consequently, the appellant ceased practise and his income was foregone.
18. [18]
    The appellant challenged the findings, obtained an expert opinion and applied to review the Board’s decision to the Queensland Civil and Administrative Tribunal on 28 August 2017.  In the result, QCAT stayed the Board’s decision on 29 November 2017 and the Board subsequently repealed its decision entirely on 9 June 2018.
19. [19]
    In August 2018, the appellant complained about the respondent to the Office of the Health Ombudsman, which led to an investigation by the Medical Board of Australia of the respondent’s assessment.  After investigation the Medical Board found that the respondent’s practice in relation to the appellant had been unsatisfactory because the testing was “inadequate and inappropriate as such testing is in the domain of Neuropsychologists who have the relevant experience to complete such testing”.  The? Medical Board imposed conditions on the respondent’s registration requiring him to undergo education, mentoring and auditing.
20. [20]
    In December 2020, the then self-represented appellant sued the respondent by claim and statement of claim in the Magistrates Court of Cairns for the loss of income incurred as a result of the respondent’s negligent health assessment between April and June 2017, which led to the cancellation of the appellant’s registration to practise as a professional engineer.  The respondent defended the proceeding on the grounds that he did not owe the appellant any duty of care in conducting the health assessment, and that the health assessment had been conducted with the “reasonable care and skill of a competent psychiatrist”.
21. [21]
    The respondent applied for summary judgment or, alternatively, for strike out of the appellant’s claim in whole or in part.  After a contested hearing,  on 11 May 2021, the learned magistrate allowed the application and gave summary judgment against the appellant on the basis that the appellant had no real prospects of succeeding in his claim.
22. [22]
    The learned magistrate relied on the High Court decision in Sullivan v Moody [2001] CLR 562 to conclude that no duty of care was owed to the appellant.  In the course of giving reasons, the learned magistrate found that the existence of a duty of care and whether it gives rise to a conflict with the policy of the Act saying:

“And, of course, we are not dealing with a patient here. So the case of Sullivan is important, particularly in terms of determining whether a duty of care exists in a case where there is also a statutory obligation. Here, the argument is that the policy of the Act to safeguard the public with, in effect, engineers who are safe and competent to do their work and not suffering from medical or mental health conditions that would prevent that, is, arguably, a – an Act policy – that requirement of the Act – which is why the assessment was ordered is, clearly, a conflicting duty.

…

The defendant argues that the establishment of a duty of care between an engineer and the medical assessor is inconsistent with the terms of the Act and to impose one would diminish the board’s ability to carry out the purposes of the Act stated in section 3. Here, it is clear as (sic) a starting principle from the cases that the assessor and investigators carrying out a statutory duty do not owe a duty of care to a third party as it would give rise to a conflict”.

23. [23]
    The learned magistrate found that in conducting a health assessment pursuant to s 35E of the Act, the assessor’s sole role was to fulfil a statutory obligation hence contraindicating any duty of care to the engineer, saying:

“… the defendant’s involvement was confined completely to carrying out the task which he was allocated by the board, and that is not in contest.  Third, it is raised that it is clear that the only involvement of [the defendant] was in the matter to fulfil a statutory role.”

24. [24]
    The learned magistrate also pointed to s 35I limiting the inadmissibility of the report in proceedings, compulsion of the assessor, and destruction of the assessor’s report as supporting the absence of a duty to the subject engineer, saying:

“… it certainly does enforce a view that the Act itself does not intend (sic) to (sic) create any duty of care between – by the health assessor to the engineer or further liability in circumstances where it is very prescriptive in saying that the health assessment report may only be used for the purposes of the Act and must be destroyed  as soon as practicable after it is no longer needed for those purposes”.

25. [25]
    The learned magistrate ultimately concluded that the appellant was unable, given the relevant sections of the Act, to show that a duty of care was owed to him by the respondent, and his case was fatally flawed with no real prospect of succeeding whatsoever.  In those circumstances, summary judgment pursuant to rule 293 of the UCPR was given to the respondent against the appellant. 

Grounds of Appeal

26. [26]
    The appellant relies on the grounds of appeal in the notice of appeal, as follows:

1. The learned magistrate erred in fact and in law in finding that the “starting principle” when dealing with the issue of duty of care is that the assessor and investigators, who are carrying out a statutory duty under the Professional Engineers Act 2002 (Qld) (‘PE Act’), do not owe a duty of care to the engineer being assessed as it would give rise to a conflict.
2. The learned magistrate erred in fact and in law in finding that the requirements under s 35 I(2) of the PE Act – that a health assessment is not admissible in proceedings; and s 35 I(4) of the PE Act – the requirement to destroy a health assessment report as soon as practicable after it is no longer needed for these purposes, are framed in a manner which indicate that the PE Act  does not intend to create a duty of care between a health assessor to the engineer being assessed.
3. The learned magistrate erred in fact and in law in finding that the appellant had no real prospects of succeeding in his claim against the respondent for professional negligence pursuant to s 35E of the PE Act.
4. The learned magistrate erred in fact and in law in finding that in conducting a health assessment pursuant to s 35E of the PE Act, the sole involvement of the Respondent was to fulfil a statutory role and hence the respondent did not owe a duty of care to the appellant.
5. The learned magistrate erred in fact and in law in finding that the Respondent owed no duty of care to the appellant when conducting a health assessment pursuant to s 35E of the PE Act.

27. [27]
    These grounds can be distilled into the determinative question of whether the respondent psychiatrist owed a duty of care to the appellant professional engineer in conducting the health assessment pursuant to section 35E of the Professional Engineers Act 2002 (Qld).

Did the learned magistrate err in finding that the respondent did not owe a duty of care to the appellant in conducting the health assessment pursuant to section 35E of the Professional Engineers Act 2002 (Qld)?

28. [28]
    The appellant contends that the respondent did owe the appellant a duty of care such that the appellant’s claim has reasonable prospects of succeeding and warrants a trial.  On the contrary, the respondent argues that there is no such duty and the appellant’s claim wholly fails.

Legislative context

29. [29]
    The Board of Professional Engineers of Queensland is the statutory regulator in Queensland for engineers under the auspices of the Professional Engineers Act 2002 (Qld). 
30. [30]
    Section 3 of the Act provides for the objects of the legislation to protect the public, maintain public confidence, and uphold engineering standards as follows:

“The main objects of this Act are—

3. (1)
   to protect the public by ensuring professional engineering services are provided by a registered professional engineer in a professional and competent way; and

3. (2)
   to maintain public confidence in the standard of services provided by registered professional engineers; and

3. (3)
   to uphold the standards of practice of registered professional engineers.”

31. [31]
    Part 2A entitled “Health Assessments” provides for a statutory regime embodied in ss 35E to 35I, with definitions contained in s 35D.
32. [32]
    Section 35E empowers the Board to force an engineer to undergo a health assessment if the Board reasonably believes that a registered engineer is unable to competently and safely practise because of the engineer’s mental health as follows:

35E  Health assessment

3. (1)
   This section applies if the board reasonably believes a registered professional engineer (the subject engineer) is unable to competently and safely practise as a registered professional engineer because of the engineer’s mental or physical health.

3. (2)
   The board may require the subject engineer to undergo a health assessment by a medical practitioner (the health assessor) appointed by the board.

3. (3)
   If the board decides to require a health assessment, the board must give the subject engineer an information notice about the decision to require the assessment that includes—

1. (a)
   a stated date, time and place, for the assessment; and

2. (b)
   the name and qualifications of the health assessor appointed by the board to conduct the assessment; and

3. (c)
   the possible consequences of failing to undergo, or cooperate during, the assessment.

3. (4)
   The stated date must be no sooner than 14 days after the information notice is given to the subject engineer unless the engineer and the board agree, in writing, to an earlier date.

3. (5)
   The stated time and place must be reasonable having regard to the circumstances of the subject engineer as known to the board.

33. [33]
    Section 35F requires the board to assure the independence of the appointed health assessor as follows:

35F  Appointment of health assessor

Before appointing a medical practitioner as a health assessor, the board must be satisfied the medical practitioner does not have a personal or professional connection with the subject engineer that may prejudice the way in which the medical practitioner conducts the assessment.

34. [34]
    Section 35G compels the assessor to prepare a report about the assessment with strict reporting parameters and limited distribution to the Board and subject engineer as follows:

35G  Health assessment report

3. (1)
   A health assessor conducting all or part of a health assessment of a subject engineer must prepare a report about the assessment (health assessment report).

3. (2)
   The health assessment report must include—

1. (a)
   the health assessor’s findings as to whether the subject engineer is currently unable to competently and safely practise as a registered professional engineer; and

2. (b)
   if the health assessor finds that the subject engineer is unable to competently and safely practise as a registered professional engineer—the health assessor’ s recommendations as to any conditions that could be imposed on the engineer’s registration to overcome the inability.

3. (3)
   The health assessor must give the health assessment report to the board and a copy to the subject engineer.

35. [35]
    Section 35H makes the Board primarily responsible for the report, but enables the Board to recover the debt of an adverse assessment from the subject engineer:

35H   Payment for health assessment and report

3. (1)
   The board is liable for the cost of the health assessment and the preparation of the health assessment report.

3. (2)
   However, if the assessment is that the subject engineer is currently unable to competently and safely practise as a registered professional engineer, the board may require the engineer, by notice, to pay the board the amount of the cost of the assessment and of the preparation of the health assessment report.

3. (3)
   The amount mentioned in subsection (2) is a debt payable to the board.

36. [36]
    Section 35I forbids admissibility of the report or compulsion of the assessor to produce or testify about the report in any proceeding, except proceedings relating to the subject engineer’s application for, or appeal about, registration, followed by destruction when no longer needed for the purposes of the Act.

35I  Use of health assessment report

3. (1)
   A health assessment report is not admissible in any proceeding, and a person can not be compelled to produce the report or to give evidence about the report or its contents in any proceeding.

3. (2)
   Subsection (1) does not apply in relation to—

1. (a)
   a proceeding relating to an application by the subject engineer to whom the report relates for registration as, or renewal or restoration of registration as, a registered professional engineer under this Act; or

2. (b)
   a proceeding on an appeal by the subject engineer against a decision of the board—

1. (i)
   refusing to grant, renew or restore registration; or

2. (ii)
   cancelling or immediately suspending registration.

3. (3)
   Also, subsection (1) does not apply if the report is admitted or produced, or evidence about the report or its contents is given, in a proceeding with the consent of—

1. (a)
   the health assessor who prepared the report; and

2. (b)
   the registered professional engineer to whom the report relates.

3. (4)
   A health assessment report may only be used for the purposes of this Act and must be destroyed as soon as practicable after it is no longer needed for those purposes.

3. (5)
   In this section—

health assessment report includes a copy of the report or a part of the report or copy.”

Appellant’s Argument

37. [37]
    The appellant contends that the respondent did owe the appellant a duty of care in carrying out the assessment because there is no conflict of interest or duty, inadmissibility of the report is not determinative, and the statutory role was not exclusive of such a duty.
38. [38]
    The appellant is critical of the learned magistrate’s finding that a duty owed by the respondent assessor to the appellant engineer would conflict with the policy of the Act, particularly, that such a duty “would be inconsistent with the terms of the Act” and “would diminish the board’s ability to carry out the purposes of the Act.”.  He effectively argues that the finding is not supported by sufficient reasons and the circumstances of the case are distinguishable from Sullivan v Moody,^[7] which was apparently relied upon by the learned magistrate in coming to the conclusion that no duty of care was owed to the appellant.
39. [39]
    The appellant seeks to distinguish the case in the following respects:

    1. (a)
       The plaintiffs in that case had no personal dealings with the medical practitioners. Here, the appellant was the subject of the assessment by the Respondent and dealt with him personally.
    2. (b)
       The plaintiffs were potential suspects in the alleged abuse of their children in the context of a welfare assessment and this gave rise to conflicting duties being owed by the medical assessment.
    3. (c)
       The core complaint was that the plaintiffs asserted they were injured as a result of what they were told.  Here, the injury suffered by the appellant was the direct result of the conduct of the respondent ie his professional negligence.
    4. (d)
       The High Court held that the duty alleged by the plaintiffs should not be found if that duty was incompatible with other duties which the respondents owed. No incompatibility of duties arises on the facts of the present case. The duties owed by the respondent to the appellant are compatible with the duties he owed to the Board because if he had performed the assessment in a competent manner, he would be fulfilling the main objects of the Act.
    5. (e)
       Accordingly, there is no divergence of interests between the interests of the appellant and the interests of the Board because a negligent diagnosis is not only against the interests of the appellant but against the interests of the Board.
    6. (f)
       The plaintiffs in Sullivan v Moody did not contend any legal right had been infringed. Here, the appellant had a legal right to engage in his chosen profession to earn a living, a right which had been infringed by the negligent conduct of the respondent; it is an invaluable right that the courts should be jealous to protect.
    7. (g)
       The legislation in Sullivan v Moody expressly provided for immunity from civil liability for acts done in good faith and in compliance with the relevant section of the Act. Such a provision is absent in the Act.
    8. (h)
       Additionally, the Community Welfare Act 1972 (SA) further provided in that circumstance, liability would lie against the Crown.
40. [40]
    Instead, the appellant relies upon the approach of Hislop J in AR v New South Wales^[8], in distinguishing Sullivan v Moody.  He argues that the appellant’s position vis-à-vis the respondent is akin to the medical practitioners and the children in Sullivan v Moody where the interests of the children were the focal point of the subject assessment as distinct from their fathers.  On that basis, the appellant argues it is open to the appellant to pursue a claim based on tortious liability principles.  While the appellant accepts that the respondent was performing a statutory role in his assessment of the appellant, he points to AR v New South Wales and South Australia v Lampard-Trevorrow,^[9] to argue that that does not of itself preclude the respondent from also owing a duty of care to the appellant.
41. [41]
    He submitted that the court should employ the conventional principles of statutory interpretation^[10] and take into account the purposes and context of the legislation.  And he relies upon the legal presumption that for a statutory provision to infringe a personal right or override fundamental principles, the language of the provision must be clear and unambiguous.^[11]
42. [42]
    The appellant submits that the respondent’s duty of care to the appellant to ensure that he was qualified to undertake the assessment arises by the respondent’s implied warranty to the appellant that, by undertaking the assessment, he was qualified to so assess the appellant by adequate and appropriate testing with results that could be validated.  Accordingly, he argues that respondent’s incorrect diagnosis in breach of the duty of care caused the appellant loss, which is actionable.
43. [43]
    In the premises, the appellant argues that the appeal should be allowed, and the summary judgment Magistrates Court should be set aside.

Respondent’s Argument

44. [44]
    The respondent argues that there is no duty owed to the appellant because the statutory context and objects to protect the public interest, conflicts with such duty, and the engagement and other circumstances contraindicates a conventional doctor patient relationship.
45. [45]
    The respondent relies upon the approach in Sullivan v Moody,^[12] Commonwealth of Australia v Griffiths,^[13] and later cognate cases,^[14] to argue that the existence of a duty of care turns on the statutory context of the respondent’s activities.
46. [46]
    He points to the Act’s objects which only focus on the protection of the public; not the subject engineer.  Further, he submits that there is an obvious conflict if the assessor was to have a duty to the engineer as a clinician as well as the statutory function for the Board.  He argues that interests of the public favour the assessor resolving any uncertainty by finding an inability to practise safely and competently, whereas the interests of the engineer may warrant such a finding only in the clearest of cases.
47. [47]
    The respondent also relies on the contraindications to the existence of a duty in the circumstances of this case, being:

1. The appellant never sought advice, assistance, care or treatment from the respondent.
2. There was never any retainer between them.
3. The appellant never assumed an obligation to act in the interests of the plaintiff and the plaintiff never relied upon him to do so.
4. The Board dictated the date, time, place and clinician for the assessment pursuant to s 35E, and the appellant had no choice in those matters.
5. The question of the appellant’s suspension was not determined by the respondent’s conduct but by the board if it “reasonably believes” the engineer is unwell under s 35E, and a decision is taken about cancellation under s 28.
6. An attack on the assessor necessarily takes away from the finality contemplated by the Act because it involves a re-consideration of the engineer’s mental state, despite other available remedies by review to QCAT, submitting a check assessment to the Board, and/or complaining to the assessor’s professional body.
7. A clear statutory indication is given by s 35I as to the inadmissibility of the report, exclusive use for the Act’s purposes, non-compellability of the assessor, and later destruction.
8. If the appellant is owed a duty of care, why not other parties, such as a client who was planning to use the appellant as an engineer.

48. [48]
    The respondent seeks to dilute the appellant’s reliance on AR v New South Wales,^[15] because it is non-binding persuasive authority, the facts were novel, and as to the duty owed to the children the court held that “No costs saving would result from the preliminary determination of this issue…”, which is not the case here.
49. [49]
    In the premises, the appellant submits the learned magistrate properly determined the appellant’s claim.

Discussion

50. [50]
    When a defendant seeks summary judgment in respect of the appellant’s claim, r 293 provides that:

“If the court is satisfied—

1. (a)
   the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's claim; and

2. (b)
   there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff's claim and may make any other order the court considers appropriate.”

51. [51]
    The test to be applied in relation to applications for summary judgment is now settled. 
52. [52]
    In Deputy Commissioner of Taxation v Salcedo,^[16] the Court of Appeal reviewed the cases and emphasised the clear wording of the rule.  Williams JA (with whom McMurdo P agreed) said as follows: ^[17]

“That review of the authorities clearly establishes to my mind that there has been a significant change brought about by the implementation of Rule 292 and Rule 293 of the UCPR.  The test for summary judgment is different, and the Court must apply the words found in Rule.  To use other language to define the test (as was contended for in this case by Counsel for the Appellant relying on the reasoning of Chesterman J in Gray -v- Morris) only diverts the decision maker from the relevant considerations.  But, and this underlies all that is contained in the UCPR, ultimately the Rules are there to facilitate fair and just resolution of the matters in dispute.  Summary judgment will not be obtained as a matter of course and the Judge determining such an application is essentially called upon to determine whether the Respondent to the application has established some real prospect of succeeding at trial; if that is established then the matter must go to trial.  In my view, the observations on summary judgment made by the Judges of the High Court in Fancourt are not incompatible with that application of Rule 292 and Rule 293; what is important is that in following the broad principle laid down by their Honours the test as defined by the Rules is applied” [emphasis added].

53. [53]
    The respondent had the burden of satisfying the court of the two requirements of r  293(2) and in the circumstances of this case.
54. [54]
    The appellant’s cause of action is framed in negligence.  There is no viable cause of action unless the respondent owed the appellant a duty to take reasonable care to avoid causing the appellant damage or loss.   Consequently, if the court was persuaded that the respondent had no duty of care then the appellant’s cause of action is doomed, and a trial is unnecessary.
55. [55]
    While I appreciate the approach in Sullivan v Moody,^[18] Commonwealth of Australia v Griffiths,^[19] and later cognate cases,^[20] the factual circumstances here are distinguishable and a finding of the existence of a duty of care turns on the statutory context of the respondent’s role and his interaction with the Board and the appellant.
56. [56]
    In very broad terms a duty of care is owed only if a defendant ought reasonably to foresee that his or her conduct is likely to cause loss or damage to a plaintiff or a class of persons to which the plaintiff belongs.^[21]  But there remains no single comprehensive test for assessing whether a duty of care exists – reasonable foreseeability is not, in itself, a sufficient condition establishing a duty of care,^[22] nor is analogy to existing precedent or an established category of duty^[23] definitive in all circumstances, there is no common defining relationship between the parties^[24] that can be relied on, or some other unifying practical guide such as proximity.^[25]  While these features may contribute in the exploration of the issue or draw focus in the inquiry, their utility is limited as a process of reasoning towards a conclusion.^[26]
57. [57]
    In a novel case, such that this is, the appellant needs to show that the respondent owes the appellant a duty of care.  Beyond notions of reasonable foreseeability and fairness, the appellant will need to point to the salient features of the instant case and argue why the law of negligence should develop incrementally, by analogy to established categories of duty, to recognise a novel duty of care.^[27]  Like Sullivan v Moody, this case also requires consideration of whether a duty of care owed to the appellant would subvert the coherence of the law, manifested by the balancing of competing interests, or otherwise interfere or conflict with the performance of duties owed by the respondent as embodied in the statute.^[28]  This is so, despite judicial sympathy and even though the deliberate acts of a defendant contributed to resultant loss or damage to a plaintiff.
58. [58]
    The present case is framed in negligence arising from the respondent’s incompetent assessment of the appellant, which is alleged to have causally eventuated in the appellant’s foreseeable loss of income following the board’s cancellation of the appellant’s registration.  While it is conceivable that he might owe a parallel duty of care to the appellant in carrying out the assessment, the causative gap between the assessment and the loss, exposes the irreconcilable intersection of the respondent’s responsibilities as independent assessor under the statutory regime and any obligations to the appellant. 
59. [59]
    The assessment is benign without the potency of the outcome.  That outcome is the very subject of the respondent’s assessment report which was communicated to and replied upon by the Board to fulfill its statutory obligation.  The Board formed a reasonable belief that the appellant was unable to competently and safely prastice because of his mental health, and cancelled his registration.  It is that decision which caused his loss of income.  Therefore, while the assessment process per se is not subject of legislative constraint, the respective capacities of the appellant to prove his case in negligence about the assessment and the respondent to defend such a claim, are severely compromised by virtue of the statutory constraints.  In particular, s 35I of the Act forbids admissibility of the report and compulsion of the assessor to produce or testify about the report in the negligence proceeding, and the outcome communicated to the board in the form of the report is ultimately destroyed.  The conduct and consideration of the case will necessarily impinge on this statutory prohibition on the use of the outcome embodied in the report to the Board, it will undermine the non-compellability of the respondent as he is forced to defend himself, and the best evidence will not be before the court in the wake of its destruction, in any event. 
60. [60]
    These matters expose the irreconcilable inconsistencies in the respondent’s obligations to the board and the appellant and the statutory objects for the public interest.  The respondent was charged with the responsibility of conducting investigations, or exercising powers, in the public interest, and the law ought not ordinarily subject him to a duty to have regard to the interests of another class of persons where that would impose upon him conflicting claims and obligations and compromise his capacity to defend himself.
61. [61]
    In my view, the invocation of the law of negligence to allow the recovery of damages for a substandard assessment in breach of a duty of care to the subject engineer, in circumstances where the statute renders the causative outcome inadmissible and the assessor not compellable, cannot be reconciled satisfactorily.  It think that the contended duty of care is incompatible with the nature of the assessor’s functions exercised by the respondent, the statutory constraints and protections and the statutory objectives to fulfill the public interests.
62. [62]
    This is one of the rare cases where a finding of a duty of care would so cut across competing legal principles as to impair their proper application, and I am bound to conclude that there is no duty of care of the kind asserted by the appellant.  Therefore, the appellant does not have a viable cause of action absent a duty to take reasonable care to avoid causing his loss of income.   The appellant’s cause of action is doomed to fail, and a trial is unnecessary.

Conclusion

63. [63]
    For these reasons, in my respectful view, I am not satisfied that the learned magistrate erred in reaching the decision.  In the absence of any identifiable error, I affirm the summary judgment of the Magistrates Court in Cairns made on 11 May 2021 and dismiss the appeal.
64. [64]
    Unless either party applies for, or the parties otherwise agree to, a different costs order within 30 days of this judgment, the appellant will pay the costs of the respondent of the appeal to be assessed on the standard basis.

Judge Dean P. Morzone