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; First and Second Respondents 5 The applicant alleges that the first and second respondents carried on the business of the supply of medical services, the first respondent being a qualified medical practitioner and a director of the second respondent. It is alleged that the third respondent (whoever that may be) was also engaged in the supply of medical services and employed the first respondent to supply such services on its behalf. 6 On Sunday 8 June 1997 the applicant came to believe that she had symptoms of illness which she thought were attributable to the condition of the premises in which she was residing, in particular the amount of dust in the house. She concluded that it would be detrimental to her health if she were to continue to reside there. She alleges that she "responded to an advertisement for the supply of "after hours" medical services and negotiated an appointment at the clinic" operated by the third respondent. Upon arrival at the premises she signed a Medicare voucher and subsequently consulted the first respondent concerning what she believed to be a respiratory problem caused by her exposure to dust in the house. She told the first respondent that she was involved in disputes concerning her tenancy and showed him a sample of dust which she had collected from the house. She alleges that the first respondent refused to examine, care for or treat her thereafter and that in so doing, he breached Parts IV and V of the Trade Practices Act, the Human Rights and Equal Opportunity Commission Act and the Medical Act. She immediately sought other medical advice. She alleges that she was eventually diagnosed as having some form of lesion or tumour in the lower trachea. 7 I accept for present purposes that all representations and other conduct occurred in trade or commerce and that for present purposes, the first, second and third respondents should be treated as collectively responsible for one another's actions. This seems to put the applicant's case at its highest, which is appropriate in the circumstances. It is somewhat difficult to identify the exact ambit or nature of these various claims but it seems reasonable to infer that the applicant claims: · for breach of contract in refusing to treat; · for negligence in treatment; · for misleading and deceptive conduct under the Trade Practices Act and/or the Fair Trading Act; · pursuant to the Human Rights and Equal Opportunity Commission Act; and · under the Medical Act. Complaint in contract 8 There may have been a contract between the applicant and one or more of the first, second and third respondents, although it is unclear who may have been the other party. No terms are pleaded. It also is not pleaded that either the Health Insurance Commission or the applicant paid or promised to pay for the consultation. In par 41 it is alleged that the first respondent, amongst others, owed a duty to the applicant and to her immediate family and friends "to properly perform the terms and conditions of the contracts". This highlights the absence of any pleaded term or breach thereof. As a plea in contract, the statement of claim is so lacking in particularity as to be embarrassing. Negligence 9 Although the more general parts of the pleading seem to raise a case in negligence, it cannot be for negligent mistreatment because the first respondent did not treat her. As to any allegation of negligence in failing to treat her, she consulted another medical practitioner on the same day and so it seems unlikely that she could have suffered any loss of a result of non-treatment. In any event there is no basis in the pleading for alleging an obligation to treat other than pursuant to the contract. I have already dealt with that matter. Negligent misstatement 10 It seems to be asserted that the failure to provide "after hours" medical services as advertised constituted some form of misstatement, but clearly, medical services were available. The first respondent was at the clinic for that purpose. The fact that he declined to treat the applicant does not demonstrate that the original representation was in any way negligent. Trade Practices Act and Fair Trading Act 11 For present purposes I assume that there is no point in discriminating between claims under these acts. The applicant has not done so in her pleading. She seems to allege misleading or deceptive conduct. Similar comments apply here as applied to the claim for negligent misstatement. The advertisement was only that "after hours" medical services were available, and it seems that they were. Any claim arises, not from anything misleading or deceptive in the advertisement, but in the circumstances which attended her consultation with the first respondent. No breach of either act is demonstrated. Human Rights and Equal Opportunity Commission Act 12 It is not clear how this Act might apply. There is no identified right protected by the Act nor any allegation that any such right was breached. Medical Act 13 Again there has been no attempt to identify any particular right conferred by the Act or entitlement to any remedy pursuant thereto. 14 It follows that the statement of claim discloses no cause of action as against the first and second respondents. Fifth Respondent 15 The applicant alleges that on 8 June 1997 she also responded to an advertisement for the supply of "after hours" medical services by the fifth respondent. She attended at the surgery allegedly operated by it, consulted the fourth respondent and received treatment. She was referred to a respiratory specialist of her choice and chose the sixth respondent. The applicant alleges that she noted certain errors on the receptionist's appointment sheet concerning her appointment, although the relevance of this is not clear. She also alleges that the letter of referral was incorrectly dated 7 June rather than 8 June. The only conduct by the fifth respondent which is complained of in par 44 is the incorrect dating of the letter of referral. I will consider the fifth respondent's conduct under the headings used for the first and second respondents. Contract 16 It is probable that there was a contract between the applicant and either the fourth or fifth respondent, or perhaps both of them, but there is no plea as to the terms, nor identification of any breach. Negligence 17 There is simply no basis for an allegation of negligence against the fourth or fifth respondent. Negligent misstatement 18 The only statements made by either the fourth or fifth respondent were as to the availability of medical services and in connection with treatment. Neither is alleged to be false, let alone negligent. Trade Practices Act and Fair Trading Act 19 There are no facts pleaded to support any claim under either act. Human Rights and Equal Opportunity Commission Act 20 For reasons previously given in connection with the first and second respondents, no claim is demonstrated. Medical Act 21 For reasons similar to those given in connection with the claims against the first and second respondents, no claim is demonstrated. 22 It follows that the statement of claim as against the fifth respondent demonstrates no cause of action and/or is frivolous. The fourth respondent has not been served, but I have disposed of this matter upon the basis that the fifth respondent is vicariously liable for his/her actions. Sixth REspondent 23 The sixth respondent is the respiratory specialist consulted by the applicant pursuant to the referral by the fourth respondent. She saw him on 10 June 1997. He examined the applicant, allegedly discovered a heart murmur, requested blood and urine samples and referred her to a respiratory function laboratory for tests. She was also sent to the tenth respondent for a chest x-ray which was performed by the ninth respondent. Blood samples were provided to the seventh and eighth respondents. On 23 June 1997 the sixth respondent allegedly provided the applicant with a report outlining his findings and opinion. He advised her not to return to the premises where she had been living for health reasons. On 24 June the sixth respondent's secretary informed the applicant that he was unavailable for a week and that certain test results could not be provided to her. The applicant discovered that the sixth respondent was attending to ward rounds at a nearby hospital. Subsequently, the results were made available. On 20 October the sixth respondent carried out a bronchoscopy procedure. The applicant asked for a video recording of the procedure. The sixth respondent informed the applicant that no abnormality could be seen in the bronchoscopy except for some minor inflammation, that there was no nodule, that she needed treatment of her sinuses and that this should take place urgently. She was treated accordingly. 24 On or about 22 October 1997 she again consulted the sixth respondent who treated her and prescribed medication. He also gave her the video tape of the bronchoscopy procedure and photographs taken in the course of it. She subsequently found that she could not view the video tape on normal VHS equipment and again spoke to the sixth respondent. There was some disagreement concerning this issue, but that does not seem to be relevant for present purposes. 25 The applicant asserts that on 25 October 1997 she became aware that there was: … a distinct tumour in her trachea, shown on the photographs and the video, in addition to mucosal swellings in the large bronchi and widespread bleeding and inflammation. 26 On 30 October, as it is alleged, the sixth respondent informed the applicant's general practitioner that there was no nodule seen during the bronchoscopy, making no reference to mucosal swelling nor to the "distinct tumour in the trachea". On 31 October a general practitioner referred the applicant to a respiratory specialist "for assessment and biopsy, if indicated, of the soft tissue nodule in the tracheal wall". On 14 November a respiratory specialist described the "tumour" as "a small mucosal lesion in the lower trachea". 27 The major complaint against the sixth respondent appears in subpars 44(g) and (h) as follows: (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. 28 Paragraph (h) is obviously frivolous, vexatious and argumentative. It adds nothing to the case. 29 The applicant's allegation that there was a tumour in the trachea appears to be based upon her own opinion rather than that of the medical practitioners who speak only of a "mucosal lesion" or a "soft tissue nodule". The applicant's use of the terms "tumour", "nodule" and "lesion" as if they were interchangeable causes some difficulty in understanding the pleading. If the applicant wishes to allege that the sixth respondent, negligently or in breach of contract, failed to identify a nodule or other lesion, she must plead that he was contractually bound, or otherwise had a duty to do so. The Court cannot take judicial notice of the purpose of a bronchoscopy, nor can it assume that any minor lesion seen during such procedure must be reported to the patient. In the circumstances, there is no clear plea of a contract or of breach, nor is there a plea of any other breach of duty. 30 It should also be noted that the sixth respondent reported on 20 October (par 25, p 7) and on 30 October (par 35). The applicant claims to have discovered her tumour on 25 October. It is difficult to see how any significant damage could have flowed from any breach of contract (other than nominal damages) or other breach of duty in such a short time. There is no pleaded basis for any statutory claim. The pleading, as against the sixth respondent is frivolous and embarrassing. It also fails to raise a cause of action. The statement of claim as against the sixth respondent should be struck out. Seventh and Eighth respondeNTs 31 The applicant was referred by the sixth respondent to the seventh and eighth respondents for pathological testing. It is probably more correct to say that they received certain specimens for testing and provided the results of that testing. In par 23 (p 6) of the pleading it is alleged that the applicant telephoned the seventh respondent on 25 June and requested "a microscopic examination and comparison with sputum cytology samples, of a household dust sample previously collected by an accredited inspection firm". The sample was sent by mail to the seventh and eighth respondents on 25 June. The applicant subsequently received a sputum cytology report which stated "no malignant cells seen satisfactory specimen". There was no mention of what the applicant describes as "squamous metaplastic cells (second stage cancer cells)." The applicant spoke to the seventh respondent by telephone on 27 June. The latter allegedly "verbally confirmed that the applicant's opinion that there was fibreglass in the sputum and the dust sample." On 30 June the applicant received a report from the seventh and eighth respondents stating that "… fibreglass seen in household dust but no fibreglass seen in sputum cytology, but some squamous metaplastica cells, macrophages and the usual neutrophils and no malignant cells." 32 The thrust of the case against the seventh and eighth respondents appears in subpars 44(c) and (d) of the pleading where it is alleged that: (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 … . 33 Subparagraph 44(c) must be read in conjunction with par 18 where it is alleged that the applicant's level, under the heading "Lactate Dehydrogenase", was 323 IU/L, well within either of the two ranges referred to in subpar 44(c). The complaint is merely that the report showed the "normal" range as 180-500 when, as it is alleged, that range is 200-500. The difference appears minimal to a layman, and one suspects that the "normal" range is a matter about which experts may differ. Clearly, the applicant can have suffered no loss as a result of this "error" as she was in any event within the appropriate range. It must also be kept in mind that the report was for use by another medical practitioner, not for use by the applicant. The absence of any sensible allegation of loss flowing from this claim must defeat any claim in tort or pursuant to the Trade Practices Act. Fairly clearly, there is also no claim against these respondents arising under the Human Rights and Equal Opportunity Commission Act or under the Medical Act. The only claim might be in contract but any such claim would yield only nominal damages. In any event, the applicant has not stipulated any particular term of the contract as having been breached. It is unlikely that the contract was to supply information as to the "normal" range. It is more likely that the seventh and eighth respondents were asked to analyse and report on the specimens in question. They did so. Any claim based upon this alleged "error" would, in my opinion, be frivolous and vexatious. 34 As to subpar 44(d), it relates to the allegations contained in pars 21 – 28 of the pleading (pp 5-6). In effect, it is said that the seventh and eighth respondents made no mention of squamous metaplastic cells in the report relating to specimens taken on 21, 22 and 23 June (which report the applicant received on 26 June) but on 30 June, reported such cells in a sample which was sent to them by the applicant on 25 June. The sixth respondent had requested sputum cytological examinations of the specimens taken on 21, 22 and 23 June. There is no allegation as to what that might involve. The applicant seems to have requested a similar test on 25 June. The pleading appears to assume that because squamous metaplastic cells were discovered in the sample taken on 25 June, they should have been discovered in the samples taken on 21, 22 and 23 June. However that has not been expressly pleaded. If these facts are to be the basis of a claim, then it is necessary to plead the obligation undertaken by the seventh and eighth respondents as a result of their instructions from the sixth respondent. It is also necessary to plead the basis for inferring that the result obtained in connection with the sample of 25 June ought also to have been obtained from the samples taken on 21, 22 and 23 June. In the absence of some pleaded factual basis for these assumptions, the plea should not stand. Of course there are also other difficulties. Any actionable loss must be attributable to the delay in identifying the presence of squamous metaplastic cells from 26 June 1997 until 30 June 1997. The case is not promising. In any event, as presently pleaded, it should not continue. NinTh Respondent 35 The ninth respondent is said to be a medical practitioner employed by the tenth respondent to whom the applicant was referred for a chest x-ray. The ninth respondent reported that the applicant's lungs were "hyper-inflated". The chest scan was performed on 13 October 1997. According to par 29 of the pleading, the ninth respondent made mention in his report of "bullous emphysematous change, a tracheal soft tissue nodule" and recommended bronchoscopy. The thrust of the complaint against the ninth respondent appears to be that in the report there was no mention of the heart nor of pericardial effusion when, as it is said, there was pericardial effusion present. See subpar 44(e). 36 Again, the applicant has not pleaded what was involved in the procedure undertaken by the ninth respondent. Thus it is not pleaded that in failing to mention pericardial effusion, the ninth respondent was in breach of any contract or otherwise in breach of any duty. No cause of action is pleaded as against the ninth respondent. 37 In the circumstances I am of the view that the statement of claim must be struck out as against the first, second, fifth, sixth, seventh, eighth and ninth respondents. I will hear further submissions as to other orders. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 26 April 2001 There was no appearance for the Applicant: Counsel for the First, Second, Fifth, Sixth, Seventh, Eighth and Ninth Respondents: Mr R Traves Solicitor for the First, Second, Sixth, Seventh, Eighth and Ninth Respondents: Tress Cocks & Maddox Solicitor for the Fifth Respondent: Boulton Cleary & Kern Date of Hearing: 7 December 2000 Date of Judgment: 26 April 2001