Kilvington v Grigg & Ors [2010] QDC 496 (23 December 2010)
The Facts
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 Issues
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 aggravated damages.
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.
The Decision
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 certificate.
The plaintiff's action failed with the plaintiff to pay the defendants' costs.
Comment
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 injuries.
Even though unsuccessful, we suspect that this will not be the last we will see of these types of cases.
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