Aggravated damages, but not exemplary damages for inappropriate conduct by a doctor

Grieve v Gomez [2017] QDC 298

Muir DCJ

The plaintiff was a patient of the defendant, a qualified medical practitioner practising within the state of Queensland. In the pleadings, it was alleged that on either 29 November 2005 or 13 December 2005, the defendant asked the plaintiff if she was interested in becoming his mistress. Similar remarks were alleged to have been made later that year.

On 2 April 2007, the plaintiff alleged that the defendant, during the course of a full body examination for skin cancer, massaged the breasts and buttocks of the plaintiff without the plaintiff’s consent and in circumstances where such massaging was not necessary. In 2012 the plaintiff attempted suicide by drowning by walking into the ocean up to her neck before being rescued. The plaintiff claims that this conduct was entirely due to the distress caused by the defendant’s actions. In March 2017, the plaintiff again attempted suicide and has since continued to suffer from aggravation of her anxiety and depression.

The plaintiff commenced proceedings on 14 September 2016 for a severe psychiatric injury, and judgment in default of a Notice of Intention to Defend was signed by the Registrar on 7 June 2017. The case concerns that assessment of damages pursuant to that judgment, and in particular aggravated and exemplary damages.

The evidence

After analysing the evidence, Muir DCJ was satisfied that despite multiple flaws, there was sufficient cogence evidence to assess damages in the plaintiff’s favour. Her Honour stated as follows:

[54] In my view there is a lack of detail, particularity in the evidence. For example, there is no evidence as to why after 20 December 2005, when the defendant asked the plaintiff if she was interested in becoming his mistress, and she rejected him, she returned to see him two years later. The evidence touches on the myriad of issues the plaintiff has faced in her life. I would have expected there to more medical evidence dealing with those issues leading up to 2005 and more importantly 2007…

Assessment of damages

Her Honour accepted the plaintiff’s claim for general damages and past and future special damages however discussed at length the plaintiff’s claim for aggravated and exemplary damages. In this regard, her Honour stated:

[62] Aggravated damages are awarded to compensate a plaintiff’s increased mental suffering due to the manner in which the defendant behaved.[15] The plaintiff is entitled to be compensated to the extent she is worse off as a result of the defendant’s actions. …

Her Honour referred to WAQ v Di Pino [2012] QCA 283, where the Court of Appeal referred to the High Court’s statement in Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 (at p 149), that:

 “aggravated damages are given to compensate the plaintiff when the harm due to him by a wrongful act was aggravated by the manner in which the act was done.”

 

In its submissions, the plaintiff referred to P v R [2010] QSC 139 as having parity with the present case due to the similar consequences suffered by the plaintiff in both cases. Of this, Muir DCJ stated:

[71] There were aggravating features to P v R which do not appear in the present case. Here there is no evidence that the defendant used any violence or persisted with his conduct. Indeed, after the verbal approaches in 2005, the plaintiff was comfortable enough to return to see the defendant. There is no suggestion that in relation to the far more serious conduct in April 2007 (the massaging of the breasts and buttocks), the defendant continued with his actions. He stopped and the plaintiff rolled over after the breast incident. After the massage of the buttocks, the plaintiff left abruptly.

Her Honour found that there was no subsequent conduct by the defendant that could be said to justify an award of aggravated damages. Her Honour also stated that the evidence suggested that plaintiff’s suffering was not only related to the defendant’s actions, but also to her own personal circumstances. Despite this, her Honour went on to award $15,000 under this head of damage stating:

[76] … I consider that there is an additional factor that warrants an award of aggravated damages in this case. That factor is that the impugned conduct was by the plaintiff’s doctor. He was in a position of power and trust. The plaintiff was clearly a vulnerable woman. The defendant took advantage of her. That it was her doctor who carried on in such a way has, I accept, increased the plaintiff’s suffering. In these circumstances, I consider a small award for aggravated damages is appropriate.

In relation to exemplary damages, her Honour stated:

[81] It is uncontroversial that aggravated and exemplary damages are separate and distinct awards that can be made in proceedings based on tort.[22] Exemplary damages are punitive damages and are intended to punish a defendant for a contumelious disregard of a plaintiff’s rights and also to act as a deterrent.

However, her Honour noted the defendant’s financial circumstances and that because of the defendant’s restrictions he may not be able to regain employment. Taking this into consideration, and the damages already assessed, Muir DCJ was not persuaded that the already assessed damages would not be a sufficient punishment to the defendant.

As to costs, Muir DCJ stated:

[93] In my view, there is no reason why costs should not follow the event and be paid in accordance with the Magistrates Court scale as provided for (without other order) under UCPR r 697. It is difficult to fathom why the proceedings were commenced in the District Court in the first place. The amounts claimed were unreasonably high (particularly the claims for exemplary and aggravated damages).

Her Honour did not consider the matter was sufficiently complex to warrant commencing in the District Court or follow Connolly v Queensland Rugby Union [2017] QDC 251 in respect of costs. Her Honour ordered the defendant pay the plaintiff the sum of $43,247.69 including interest, plus costs of the Magistrates Courts Scale, save the costs of the Mareva Order.

David Cormack – Brisbane Barrister & Mediator

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