Luck v Hunter [2001] FCA 466

FEDERAL COURT OF AUSTRALIA

Luck v Hunter [2001] FCA 466 GAYE LUCK (FORMERLY KUPERMAN) v DR ROSS B HUNTER, R B HUNTER (MEDICAL) PTY LTD ACN 088 496 995, NOCDOC, DR D MCALPINE, P W KERRISK (TOWNSVILLE) PTY LTD T/A AITKENVALE MEDICAL CENTRE ACN 011 003 231, DR PETER BUCHANAN, DR HENRY LAU, CONSULTANT PATHOLOGISTS (TOWNSVILLE) PTY LTD ACN 010 106 680, DR GRANT WITHEY, QUEENSLAND X-RAY SERVICES BN 3332160 V 392 of 2000 DOWSETT J 26 APRIL 2001 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY V 392 OF 2000

BETWEEN: GAYE LUCK (FORMERLY KUPERMAN)

APPLICANT

AND: DR ROSS B HUNTER

FIRST RESPONDENT

R B HUNTER (MEDICAL) PTY LTD ACN 088 496 995

SECOND RESPONDENT

NOCDOC

THIRD RESPONDENT

DR D MCALPINE

FOURTH RESPONDENT

P W KERRISK (TOWNSVILLE) PTY LTD

T/A AITKENVALE MEDICAL CENTRE ACN 011 003 231

FIFTH RESPONDENT

DR PETER BUCHANAN

SIXTH RESPONDENT

DR HENRY LAU

SEVENTH RESPONDENT

CONSULTANT PATHOLOGISTS (TOWNSVILLE) PTY LTD

ACN 010 106 680

EIGHTH RESPONDENT

DR GRANT WITHEY

NINTH RESPONDENT

QUEENSLAND X-RAY SERVICES BN 3332160

TENTH RESPONDENT

JUDGE: DOWSETT J

DATE: 26 APRIL 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 Ms Gaye Luck, the applicant, claims that on 8 June 1997 (a Sunday) she became concerned about her health and thereafter consulted a number of medical practitioners over the period commencing on that date and continuing, for present purposes, until 14 November 1997. Those consulted included the first, fourth, sixth, seventh and ninth respondents. The other respondents (with the exception of the third respondent (NOCDOC)) are companies associated with one or other of these medical practitioners. NOCDOC is a business name. I am told that it is owned by a company which is in liquidation. It has not appeared. The fourth respondent has not been served. I am presently concerned with three notices of motion, one on behalf of the first, second, sixth, seventh and ninth respondents, one on behalf of the fifth respondent and one on behalf of the eighth respondent, all seeking dismissal or stays of the various claims. Although the applicant has had notice of these motions she has not appeared. For reasons which I have already given, I am proceeding in her absence. 2 Because of the way in which the applicant has pleaded her claims it is appropriate to deal with these motions in the following order: · that on behalf of the first and second respondents; · that on behalf of the fifth respondent; · that on behalf of the sixth respondent; · that on behalf of the seventh and eighth respondents; and · that on behalf of the ninth respondent. 3 All claims arise out of Ms Luck's perception that she suffered injury to her health as a result of residing in certain rented premises in Townsville where, in her view, she was exposed to unhealthy levels of fibreglass particles. She has a number of actions on foot against various respondents. In the present action the applicant claims damages for breach of contract, breach of duty of care, negligence, misrepresentation, unconscionable conduct and misleading or deceptive conduct in trade or commerce in contravention of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1989 (Qld). There is also reference to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and "State complementary legislation" and to the Medical Act 1939 (Qld). The damage said to be caused by these breaches of duty appears in par 63 of the statement of claim. It is alleged that: · the applicant's health and life (have been) endangered and the illness and convalescence prolonged; · the applicant experienced extreme emotional shock; · the applicant experienced extreme feelings of being discriminated; · the applicant experienced feelings of fear and torment; · the applicant experienced extreme torture in a resolve to understand the circumstances of such discrimination and conspiracy; · the applicant experiences further and ongoing discrimination and vilification; · the applicant has lost social support of family and friends; and · the applicant is mostly unable to obtain non-discriminatory examinations, care and treatment from medicos, social welfare, public hospitals, friends, families and all other social structures. 4 The conduct by the respondents of which the applicant complains involves failure to diagnose and/or appropriately treat her alleged medical conditions. However the bases of the claims are unusual. It will be easier to understand the significance of the conduct complained of if I first set out the paragraphs of the pleading in which the applicant explains the significance which she attributes to that conduct. Paragraphs 38 and 39 apply specifically to the first, second and third respondents. Paragraphs 40 – 43 apply to all presently relevant respondents. Each of the subparagraphs of par 44 relates to a specific respondent or respondents. Paragraphs 61 and 62 are of general application. I set out these paragraphs below: 38. In the circumstances the first respondent, the second respondent and the third respondent could reasonably foresee that and knew or ought to have known:- PARTICULARS: (a) the applicant would most likely respond to an advertisement for the supply of after hours medical services on Sunday, 8 June 1997; (b) the applicant had been exposed to a hazardous substance and was in immediate need of examination, care and treatment; (c) by refusing such examination, care and treatment, the applicant's health and life could be endangered and the illness and convalescence prolonged; (d) by refusing such examination, care and treatment, the applicant would experience feelings of discrimination; (e) by refusing such examination, care and treatment, the applicant would experience feelings of fear and torment; (f) by refusing such examination, care and treatment, the applicant would experience torture in a resolve to understand such a refusal; (g) by refusing such examination, care and treatment, the applicant would experience further discrimination and vilification; 39. Further and in the circumstances the first, second and third respondents owed a duty of care to the applicant, the applicant's immediate family and friends and were negligent and unconscionable and:- (a) by failing to supply after hours medical services as advertised, the first, second and third respondents engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of Part IV and V of the Trade Practices Act 1974 (Cth) and Fair Trading Act 1989 (Qld); (b) by failing to examine care for and treat the applicant, the first, second and third respondents engaged in conduct that was in contravention of Part IV and V of the Trade Practices Act 1974 (Cth), the Medical Act 1939 (Qld) and the Human Rights and Equal Opportunity Act 1986 (Cth) and State complementary legislation; 40. PARTICULARS Further, in the circumstances, the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth respondents could reasonably foresee that and knew or ought to have known:- (a) that the applicant was relying upon the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth respondents:- (i) to exercise all due care, skill and diligence in making any representations (ii) to know the applicant was likely to act upon any representations (iii) to know that if the applicant acted upon the representations and they proved to be untrue, the applicant would suffer injury, loss and damage. 41. Further, in the circumstances the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth respondents owed to the applicant, all the applicant's immediate family and friends, duty of care:- (a) to properly perform the terms and conditions of the contracts (b) to exercise all due care, skill and diligence when making the representation and giving advice. 42. Further, in the circumstances and relying upon the truth of the representations made by the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth respondents the applicant was unable to obtain proper examinations, care and treatment from medicos, social welfare, public hospitals, friends, families and in general all aspects of the applicant's life. 43. Each of the representations was made in trade or commerce within the meaning of that term in the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1989 (Qld). 44. When the representations were made and the advice was given to the applicant the representations were false and misleading in that:- (a) the advertisement on 8 June 1997, made by the first, second and third respondent for supply of after hours medical service was not supplied as advertised; (b) the referral letter supplied by the fourth and fifth respondents was written on the 8 June 1997, and was clearly dated 7 June 1997; (c) the blood test report supplied of about 11 June 1997, supplied by the seventh and eighth respondent stated the normal range for Lactate Dehydrogenase is (180-500) IU/L 37C when the true situation is that the normal range is about (200-500) IU/ml, as reported in authoritative medical texts; (d) the sputum cytology test reports of tests supplied by the seventh and eighth respondent on or about 21 June 1997, 22 June 1997 and 23 June 1997 indicated normal results, when the true situation was that squamous metaplastic cells were evident and not reported; (e) on the CT Scan report supplied by the ninth and tenth respondents, on or about the 13 October 1997 there was no mention of the heart nor any pericardial effusion, when the true situation was that there was pericardial effusion present; (f) the CT Scan films supplied by the tenth respondents, on or about the 17 October 1997 were labelled with the incorrect name and time of procedure; (g) the sixth respondent reported to the applicant and to a treating medical practitioner in writing that there was no mucosal lesion or nodule seen in the bronchoscopy procedure, when the true situation is that there is a tumour in the trachea, which is evidenced by the opinion of a respiratory specialist and a medical practitioner after viewing photographs taken by the sixth respondent while performing the bronchoscopy procedure. (h) the behaviour of the sixth respondent was generally misleading, deceptive and unconscionable in relation to the results of the bronchoscopy and the video tape provided as part of the contract with the applicant. 61. In the circumstances the representations were made and the advice was given negligently. 62. At all material times the second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth respondents:- (a) induced the said contraventions; (b) were knowingly concerned in and a party to the said contravention; and (c) conspired with others to effect the contravention;