Citation: Lee v Fairbrother [2009] NSWDC 192
Court: District Court of New South Wales
Date: 10 July 2009
Judge(s): Johnstone DCJ
Background
The plaintiff was a patient at a general practice clinic who first consulted the defendant doctor in early 2004 in connection with her son's dog bite, and then on her own behalf for an obsessive compulsive disorder. The plaintiff had a pre-existing and longstanding psychiatric history, including OCD, prior trauma, and previous episodes of instability, but had been in a period of relative stability for several years before the consultations began.
A sexual relationship developed between the plaintiff and the defendant during 2004 while he remained her treating GP. The parties lived together for a period and the plaintiff contended they had become engaged. The relationship ended acrimoniously in early 2005, with the plaintiff suffering serious psychiatric consequences including a cocaine-induced psychosis and hospitalisation. She also suffered extreme fear following the burning of her car and her home, events she attributed to the defendant, although no charges were laid against him.
Following a complaint to the Health Care Complaints Commission, the Medical Tribunal found the defendant's conduct to have been inappropriate and ordered his deregistration for a minimum of two years. The plaintiff then brought civil proceedings claiming that the defendant's conduct caused her psychiatric condition and seeking compensatory, aggravated, and exemplary damages.
Legal Issues
- Whether the defendant breached his duty of care as a general practitioner by entering into a sexual relationship with his patient
- Whether the sexual relationship amounted to assault
- Whether the plaintiff's psychiatric condition was caused by the defendant's conduct as her medical practitioner, given her substantial pre-existing psychiatric history
- Whether the Civil Liability Act 2002 applied to the claim, or whether damages fell to be assessed under the general law
- The appropriate quantum of compensatory damages, including past and future expenses and economic loss
- Whether aggravated damages were warranted
- Whether exemplary damages were appropriate in the circumstances
Decision
The court found that the defendant had breached his duty of care as a treating general practitioner by forming and pursuing a sexual relationship with the plaintiff while she remained his patient. The court rejected the defendant's account of events and found his credibility to be severely compromised, reaching a credibility assessment broadly consistent with that of the Medical Tribunal.
On causation, the court accepted that, notwithstanding the plaintiff's complex and pre-existing psychiatric history, the defendant's conduct materially contributed to her subsequent psychiatric deterioration. The relationship exploited a vulnerability that arose in the context of the therapeutic relationship, and the harm she suffered was causally connected to his conduct as her doctor.
The court determined that the Civil Liability Act 2002 did not apply, with damages assessed under the general law. This distinction is significant because it removed certain caps and thresholds that the Act would otherwise impose on damages for non-economic loss.
On aggravated damages, the court awarded an additional $10,000 above the compensatory sum. The basis was the defendant's continuing and unremorseful disregard for the plaintiff's rights, expressed even in his final submissions to the court, and his persistent lack of insight into the impropriety of his conduct. Exemplary damages were declined on the basis that the defendant had already suffered significant punishment through deregistration by the Medical Tribunal, meaning a further punitive award was not considered appropriate.
Orders Made
- Judgment for the plaintiff in the sum of $153,500, comprising:
- Past out-of-pocket expenses: $28,000
- Future medical expenses: $45,500
- Economic loss: $25,000
- General damages: $50,000
- Aggravated damages: $10,000
- Defendant to pay the plaintiff's costs, assessed on the ordinary basis up to 1 April 2008 and on an indemnity basis thereafter, following the plaintiff's acceptance that her offer of compromise of $120,000 (left open until that date) had been exceeded by the judgment sum
Key Takeaways
- The District Court confirmed that a general practitioner who enters into a sexual relationship with a patient while treating that patient for a psychiatric condition can be found liable in negligence for the psychiatric harm that results.
- A substantial pre-existing psychiatric history does not, of itself, defeat a causation finding; the court was satisfied that the defendant's conduct materially contributed to the plaintiff's deterioration over and above her baseline vulnerability.
- Where a defendant's conduct falls within the intentional or sexual misconduct exclusions that take a claim outside the Civil Liability Act 2002, damages are assessed under the general law, removing the statutory limitations that would otherwise apply.
- Aggravated damages are available where the defendant's conduct, including conduct during the litigation itself, demonstrates contumelious disregard for the plaintiff's rights or a persistent lack of remorse, provided the award reflects harm beyond that already captured by compensatory damages.
- Existing disciplinary consequences, such as deregistration by the Medical Tribunal, are a relevant factor in declining to award exemplary damages, as those consequences already serve a punitive function.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), s 3B(1)
Cases
- Qantas Airways v Lisica [2007] NSWCA 371
- Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
- Lamb v Cotogno [1987] HCA 47