Kilvington v Grigg & Ors  QDC 496 (23
The plaintiff had been unable to work for a period of time and
sought to obtain an early payment from his superannuation policy on
the basis of "permanent incapacity". In order to obtain
the payment the plaintiff required 2 medical certificates to be
submitted with his application. The plaintiff sought one of the
medical certificates from his longstanding GP (the first defendant)
and the other from the third defendant who the plaintiff had
attended upon at a community mental health clinic, operated by
Queensland Health (the second defendant). The plaintiff incorrectly
believed the third defendant to be a psychiatrist. The first
defendant eventually provided the medical certificate. The third
defendant failed to provide the plaintiff with a certificate.
The action only proceeded against the second and third
defendants. The plaintiff argued that the third defendant's
failure to provide him with a medical certificate for his
superannuation application amounted to a breach of duty by the
third defendant and/or a breach of contract by the second and third
defendants for which the plaintiff was entitled to damages for
financial loss. The plaintiff also alleged various other breaches
including a breach of statutory duty and claimed exemplary and
The defendants argued there was no duty in contract, tort or
statute to provide a medical certificate to the plaintiff. The
defendants further argued that the plaintiff could not prove
causation on the basis that even if the certificate had been
provided, he would not have met the criteria for the payout.
Further the defendants argued that the plaintiff had not suffered
financial loss, as his superannuation balance remained available
for him to claim in the future.
In relation to the breach of contract claim the Court found the
plaintiff's lack of consideration (payment) as fatal to his
case. As a result, the Court concluded that there was no
contractual duty owed by the third defendant to the plaintiff.
The third defendant was also found not to owe the plaintiff a
duty of care in tort to "...act so as to avoid..." the
plaintiff incurring financial harm, by providing him with a medical
certificate, where the provision of such a certificate would not
assist the plaintiff. However, it was reasoned that where a doctor
provides a medical certificate, which is relied upon by a third
party, the doctor will owe that third party a duty of care in
relation to the matters contained within the certificate.
The Court also differentiated between the current case and the
situation where a person is sick and seeks a medical certificate
from their doctor in order to "...avoid loss of wages for that
period." Such a situation may place "...a duty on a
doctor...to provide such a certificate." The Court found that
not to be the position in the current case, concluding that the
plaintiff did not incur economic loss in the usual way. The
plaintiff was instead seeking to obtain a benefit (ie the earlier
payment of his superannuation).
The Court accepted the third defendant's professional
opinion that he could not determine whether the plaintiff met the
test for incapacity, as in his professional opinion the
plaintiff's psychiatric issues may have been manageable through
medication had it not been for the plaintiff's alcohol
consumption which was "not necessarily permanent".
Further, the Court could not find that the third defendant's
opinion was one which no reasonable medical practitioner in his
position could have arrived at.
In relation to causation the Court concluded that even if the
third defendant had provided a medical certificate, the insurer
would on balance have rejected it because the application would not
have complied with the insurance company's requirements that
needed to be met prior to making the payment. As a result no
superannuation payout would have occurred.
In addition the Court found that there was no statutory duty on
the part of the third defendant to provide the plaintiff with a
The plaintiff's action failed with the plaintiff to pay the
This case is of interest as there are few cases where a
plaintiff has sought to recover pure economic loss against a
medical practitioner. Plaintiffs generally sue medical
practitioners to obtain compensation for physical or psychological
Even though unsuccessful, we suspect that this will not be the
last we will see of these types of cases.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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What happens if a patient, particularly a mental health patient,.
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