Kingsman v Health Administration Corporation [2000] NSWSC 136

New South Wales Supreme Court

CITATION : Kingsman v Health Administration Corporation [2000] NSWSC 136 FILE NUMBER(S) : SC 13327/93 HEARING DATE(S) : 01/02/00, 02/02/00, 03/02/00, 04/02/00, 07/02/00, 08/02/00, 09/02/00, 10/02/00 11/02/00 JUDGMENT DATE : 31 March 2000

PARTIES : Walter Frederick Kingsman v Health Administration Corporation JUDGMENT OF : James J

COUNSEL : In Person - Plaintiff S Woods - Defendant SOLICITORS : - - Plaintiff Lynn Boyd - Defendant DECISION : Verdict for the Defendant

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Friday 31 March 2000

013327/93 - Walter Frederick Kingsman v Health Administration Corporation

JUDGMENT 1 HIS HONOUR: This is an action for damages for personal injuries brought by the plaintiff Walter Frederick Kingsman, formerly known as Sean Walter Frederick Mordaunt, against the defendant, the Health Administration Corporation. The plaintiff claims that he suffered personal injuries as a result of treatment he received while he was a patient in the Chelmsford Private Hospital ("Chelmsford"). The plaintiff, who was born on 7 March 1946, was a patient in Chelmsford for five separate periods in 1968 or 1969, namely between 17 March 1968 and 7 April 1968, between 16 July 1968 and 3 August 1968, between 19 January 1969 and 13 February 1969, between 22 April 1969 and 9 May 1969 and between 7 July 1969 and 8 August 1969. While he was a patient in Chelmsford, the plaintiff was a patient of the late Dr H R Bailey and of Dr J Herron. It was not disputed by the defendant that during the periods he was a patient in Chelmsford the plaintiff was subjected to forms of treatment known as deep sleep therapy ("DST") and electroconvulsive therapy ("ECT"). It was however disputed that the defendant had any liability to the plaintiff or that the plaintiff had suffered the physical injuries he claimed he had suffered. 2 The present proceedings were commenced by the plaintiff in 1993. An application by the plaintiff for an extension of the limitation period for bringing the proceedings was not opposed by the defendant and was granted by the Court. 3 The Health Administration Corporation was the sole defendant at the hearing of these proceedings. It was not, however, the only person or body against whom Mr Kingsman had at some time brought proceedings. There was admitted into evidence a transcript of an interlocutory hearing on 13 February 1996 before Badgery-Parker J. On 13 February 1996 before Badgery-Parker J Mr Kingsman, who was appearing for himself, stated that he was discontinuing proceedings he had brought against the New South Wales Medical Defence Union and other insurers and other proceedings he had brought against Dr Bailey's estate, Dr Herron and the Medical Defence Union. 4 The Health Administration Corporation is a Corporation sole, which was created by the Health Administration Act 1982 No 135 and which was accordingly not in existence when the plaintiff was a patient in Chelmsford. How the Health Administration Corporation could be liable for any personal injuries suffered by the plaintiff while he was a patient in Chelmsford in 1968 and 1969 is a question which will have to be addressed later in this judgment. 5 There are a large number of documents in the court file in this matter. However, on the first day of the hearing it was agreed that a document described as "proposed amended statement of claim", which was filed on 9 May 1996, should be taken to be the statement of claim, that a document described as "amended statement of defence of the defendant to proposed amended statement of claim", which was filed on 17 May 1999, should be taken to be the defence and that a document described as a reply filed on 13 May 1996 should be taken to be the reply. Out of more abundant caution, I made orders that these documents stand respectively as the statement of claim, the defence and the reply. 6 The plaintiff appeared in person at the hearing. The plaintiff's brother, Mr George Mordaunt, was permitted, without any objection by counsel for the defendant, to sit alongside the plaintiff at the bar table and to assist the plaintiff in the conduct of the case. During the hearing the plaintiff frequently consulted his brother. 7 The plaintiff informed me that at certain earlier stages of proceedings he had brought he had been legally represented. He had had a number of solicitors and a number of barristers "off the top of my head, four barristers and about six legal firms". The plaintiff informed me that every solicitor he had had had been a "liar" and "cheat" and no solicitor or barrister he had had could be relied on to act on instructions given to him by Mr Kingsman. After I had suggested to Mr Kingsman that he should obtain legal advice and asked whether he had made any enquiries at the Law Society or the Bar Association about whether some arrangement could be made for him to receive legal advice, he told me that he would rather lose the case himself than have a solicitor lose it for him. The plaintiff had obviously devoted a great deal of time to the preparation of his case. He addressed written and oral arguments to the Court on such subjects as Crown immunity, vicarious liability, absolute liability, res ipsa loquitur, exemplary damages and the decision of the High Court in Sue v Hill (1999) 73 ALJR 1016. He relied on an array of documents, including the Charter of the United Nations and the Covenant of the League of Nations. He handed up to the bench legal text books on which he relied, many parts of which had been highlighted by him and which he had obviously read assiduously. 8 The plaintiff tendered the following documentary evidence at the hearing:- 9 1. An affidavit by him sworn 15 September 1999. This affidavit was admitted into evidence but, apart from some annexures, only as containing submissions or arguments by the plaintiff. 10 2. An affidavit by the plaintiff sworn 4 December 1995, to which were exhibited three volumes described as a report by V L Kingsman and three volumes described as a report by Michelle L McLean. V L Kingsman is a daughter of the plaintiff. Michelle McLean is a sister-in-law of the plaintiff. The plaintiff expressly disclaimed any suggestion that either Ms Kingsman or Ms McLean had any relevant special expertise or that he relied on any expressions of opinion in their reports by either Ms Kingsman or Ms McLean. Counsel for the defendant objected to the tender of most parts of the two reports. 11 I admitted into evidence parts of volume 2 of Ms Kingsman's report, consisting of the hospital notes of Chelmsford for the plaintiff's five admissions, accounts from Chelmsford for the plaintiff's admissions, letters from the Archives Office of New South Wales relating to whether there was any written consent by the plaintiff to his treatment in Chelmsford in the documents of the Royal Commission into Chelmsford which was held between 1988 and 1990, the records of the Royal Brisbane Hospital and the psychiatric unit at the Prince Charles Hospital in Queensland relating to admissions of the plaintiff in 1967, a report of a psychological assessment of the plaintiff by a psychologist Mr Ivison on 24 July 1992, a completed request for medical details in relation to an application by the plaintiff in 1992 for a Disability Support Pension, a report of a psychiatric examination of the plaintiff by a psychiatrist Dr Field of 4 March 1994 and a report of a chiropractor Mr Andrew Vincent, which is undated but which was apparently prepared in late 1993. 12 I upheld counsel for the defendant's objection to the tender of any part of volumes 1 and 3 of Ms Kingsman's report. Volume 1 consisted of extracts from the report of the Chelmsford Royal Commissioner, interspersed with comments or submissions by Ms Kingsman, some of them apparently being based on what she had been told by the plaintiff. During the hearing I gave a judgment giving my reasons for holding that the extracts from the Royal Commissioner's Report containing findings by the Royal Commissioner were not admissible. 13 Volume 1 also contained schedules prepared by Ms Kingsman purporting to record the dosages of drugs received by the plaintiff during his admissions to Chelmsford. This information was said by the plaintiff to have been extracted by Ms Kingsman from the Chelmsford Hospital notes. It was disputed by counsel for the defendant that the information had been accurately extracted and the columns of the schedules headed "date" and "dosage received" were admitted only on the basis of being the plaintiff's summaries of the information in the hospital notes. The third column in the schedules, which was headed "maximum recommended dose in 24 hours (MIM 1994)", was rejected. 14 Volume 3 of Ms Kingsman's report consisted of articles published in medical journals at various times between the 1960's and the 1990's and parts of the 1994 MIMS Annual dealing with various therapeutic drugs and also tearsheets from a newspaper published in April 1995. I rejected all of the documents in Volume 3, apart from two articles which were admitted as being capable of being relevant to showing the state of scientific knowledge at the times the plaintiff was a patient in Chelmsford. 15 I did not admit any part of any Volume of the report by Ms McLean. Volume 1 consisted mainly of submissions by Ms McLean, with some extracts from medical works. Volume 2 reproduced many of the documents in Volume 2 of Ms Kingsman's report, which I had already admitted. Volume 3 contained extracts, apparently from some edition of MIMS, concerning various pharmacological drugs. 16 I told Mr Kingsman at the hearing that his case was in danger of failing for lack of necessary evidence and that his case required evidence from a qualified pharmacologist and a qualified psychiatrist. The plaintiff replied that he had tried to get experts to give evidence but "they won't do it". 17 3. Some miscellaneous documents, which were admitted into evidence, consisting of a medical report by Dr Cedric Swanton of 13 June 1969, a letter from the Health Insurance Commission sought to be relied on in support of the plaintiff's claim for damages for out of pocket expenses, some correspondence in March 1970 concerning the settlement of a claim by the plaintiff for damages arising out of a motor vehicle accident and a copy of a Queensland Industrial Award sought to be relied on in support of the plaintiff's claim for damages for loss of earning capacity. 18 Apart from the tendering of documentary evidence, the plaintiff gave oral evidence and the plaintiff's brothers George Mordaunt and Richard Mordaunt also gave oral evidence. As the plaintiff was unrepresented, much of the evidence of the plaintiff and of his brothers, before they were cross-examined by counsel for the defendant, was given in response to questions asked by me. 19 The defendant tendered a number of documents, which were admitted, consisting mainly, but not entirely, of medical reports. The defendant did not call any oral evidence. 20 On 21 June 1996 Professor P E Mullen, the Professor of Forensic Psychiatry at Monash University and the Director of the Victorian Forensic Psychiatry Services, was appointed as a court expert pursuant to Pt39 r2 of the Supreme Court Rules. The terms of the subsequent appointment of Professor Mullen were explained in a letter of 24 May 1996 to Professor Mullen from the Registrar of this Court. Professor Mullen furnished a report relating to the plaintiff which is dated 12 June 1996. The Registrar's letter, Professor Mullen's report and the materials which had been placed before Professor Mullen for the purpose of preparing his report were admitted into evidence. 21 It is convenient first to summarise the documentary evidence in the case and then to summarise the oral evidence.