PAUL V CAPITAL AND COAST DISTRICT HEALTH BOARD AND ANOR CA CA64/06

PAUL V CAPITAL AND COAST DISTRICT HEALTH BOARD AND ANOR CA CA64/06 29 September 2006IN THE COURT OF APPEAL OF NEW ZEALAND CA64/06BETWEEN DR GRAHAM PAUL Applicant AND CAPITAL AND COAST DISTRICT HEALTH BOARD First Respondent AND HUTT VALLEY DISTRICT HEALTH BOARD Second Respondent Hearing: 18 September 2006 Court: William Young P, Robertson and Arnold JJ Counsel: P J Cullen and L K McKenzie for the Applicant S J Turner for the Respondents Judgment: 29 September 2006 at 2.15 pmJUDGMENT OF THE COURT A The application for leave to appeal is dismissed. B The appellant is ordered to pay costs of $1,000 to each of the respondents together with usual disbursements.REASONS OF THE COURT(Given by William Young P)Background[1] Between 1997 and 2000, Dr Graham Paul was training to become a Fellow of the Royal Australasian College of Surgeons with a view to obtaining specialist recognition in general surgery. As part of his training programme, he worked as a surgical registrar with the two respondent Health Boards on a series of general surgical rotations (referred to as "runs"). The contracts between him and the Health Boards provided that the "run descriptions" would record four hours a week of rostered duty for the purposes of medical learning not directly derived from clinical work. [2] Dr Paul took the view that his contractual entitlements in this regard were not met and this led to complaints, correspondence, including a very formal claim, and meetings between him and those who were responsible for his training. Associated with this was some deterioration in personal relationships. At one meeting in 2000 Mr Stephen Purchas, the Supervisor of Advanced General Surgical Training at Hutt Hospital, commented on the formal claim made by Dr Paul in terms which suggested that this involved self destruction on Dr Paul's part. [3] Dr Paul received some unfavourable assessments of his performance on the training programme and in the end he failed the Part II Examination set by the College. He concluded that the poor assessment reports and his failure to pass the Examination resulted from him being offside with the medical establishment as a result of his formal claim and subsequent downstream events. [4] The upshot was that Dr Paul presented his own case before the Employment Relations Authority which eventually made some findings in his favour but awarded him less than had been offered to him on a Calderbank basis. So he was ordered to pay costs to the Health Boards.[5] Dr Paul's challenge to that decision was heard de novo in the Employment Court. Again he represented himself. In a lengthy judgment delivered on 9 March 2006, Judge Shaw found against him completely. [6] He now seeks leave to appeal from her judgment.The grounds of the proposed appeal[7] The following aspects of Judge Shaw's judgment are now under challenge: (a) Her conclusion that the Health Boards had met their contractual obligations in relation to the provision of medical learning; (b) Her conclusion in favour of the Hutt Valley District Health Board in relation to the self destruction remark; (c) Her conclusion that Dr Paul had not made out a claim for compensation for breach of implied obligations associated with trust and confidence (involving delays in responding to correspondence); (d) Her failure to address a discrimination claim based on Dr Paul taking leave; and (e) Her failure to refer to the decision of the Employment Relations Authority.The Judge's conclusion that the Health Boards had met their contractual obligations in relation to the provision of medical learning[8] Dr Paul's complaints as to breaches by the Health Boards of the medical learning obligations were not without force. Some of the education which the Judge allowed for in finding that the Health Boards had met their obligations was provided outside of rostered hours (ie the hours for which Dr Paul was formally rostered for duty). Other education was at times when he was rostered on for surgery. As well,as Mr Cullen pointed out, the Judge very much focused on the education provided as opposed to the educational opportunities "recorded" in the "run descriptions" which were at a generic level. But that said, the approach taken by the Judge in these respects involved the interpretation of the employment agreements and is thus outside the scope of further review in this Court, see s 214 of the Employment Relations Act 2000. [9] As well there were some factual (effectively arithmetical) errors made by the Judge in her conclusions. We say this because when full allowance is made for all matters referred to on the tabulated information recorded in her judgment, it is clear that there were at least two runs when the medical learning obligations were not met. But this is of no moment for present purposes as we have no jurisdiction to grant leave to appeal on factual issues.The Judge's conclusion in favour of the Hutt Valley District Health Board in relation to the self destruction remark[10] The Judge concluded that the remarks made by Mr Purchas were in the nature of friendly advice and out of concern for Dr Paul rather than by way of threat. Rigid insistence on entitlements (particularly in a professional and collegial environment) can have the tendency to produce breakdowns in personal relationships and, associated with this, an adverse impact on the career of the person concerned. The remarks made by Mr Purchas might be thought to have been a statement of the obvious. So the finding made by the Judge was well open to her and, in any event, was factual and thus not a candidate for review in this Court.The Judge's conclusion that Dr Paul had not made out a claim for compensation for breach of implied obligations associated with trust and confidence (involving delays in responding to correspondence)[11] Mr Cullen pointed to the Judge's conclusion which was expressed in this way:Whatever his loss of trust it was not sufficient to drive him from the programme or prevent him from working and studying. There is no evidence to support Dr Paul's claim for compensation for lack of trust and confidence in the defendants.Mr Cullen suggested that this overstated the test which Dr Paul had to satisfy and also conflated what he said were two different questions, whether there was a breach and, if so what compensation was appropriate. [12] Earlier in the judgment the Judge had noted that all Dr Paul had to establish on the balance of probabilities was that:any loss of trust and confidence resulted in the undermining of the relationship.So we are not persuaded that there is a credible basis for arguing that the particular remarks relied on by Mr Cullen involved a mistake by the Judge as to the fundamental test. Further, although we accept that the Judge did not clearly distinguish between breach and remedy we see this as not being material for present purposes. Her judgment concluded, at least implicitly, that the Health Boards ought to have replied to the correspondence but that the failure to do so caused no adverse consequences to Dr Paul. Whether that means that there was no breach or alternatively that there was a breach but no loss is irrelevant in terms of the ultimate result. [13] Mr Cullen also complained that the Judge did not, in the exercise of her equity and good conscience jurisdiction, tease out from Dr Paul the sort of evidence which he might conceivably have given if asked to focus specifically on the consequences for him of the failure to respond to his correspondence. The extent to which a Judge should assist an unrepresented litigant in this way involves sensitive issues of judgment (particularly as that litigant's opponent is likely to resent overt judicial assistance in the formulation of a claim). We see no arguable error of law in the approach the Judge took here. [14] We might add that on the factual findings which the Judge did make (and which are not open to review in this Court) any award of compensation Dr Paulcould realistically expect would be de minimis. We have in mind her conclusions that Dr Paul had lost confidence in the Health Boards prior to their failure to reply to his correspondence and that, despite that loss of confidence, he nonetheless continued to apply for and be accepted into advanced training programmes and in the end sat his Examination. [15] We see no basis on which we could sensibly allow leave to appeal in respect of this aspect of the case.The Judge's failure to address a discrimination claim based on Dr Paul taking leave[16] Mr Cullen claimed that Dr Paul had been discriminated against by one of the Health Boards because of his taking of leave. This argument was based on evidence given by one of the supervising surgeons who made it clear that he had objected to the way leave was taken, the reasons given by Dr Paul (a desire to rest up from a heavy workload) and its impact on his ability to gain clinical experience. He accepted that this had an adverse impact on his assessment of Dr Paul. [17] Although this was complained about by Dr Paul in his closing submissions, the pleadings did not address this issue which unsurprisingly therefore was not addressed by the Judge. [18] Given that the issue was not pleaded and that the Health Boards had thus not had an opportunity to address it in evidence, we detect no arguable error of law on the part of the Judge in not addressing it in her judgment. It would have been potentially unfair for the Judge to have made an adverse finding against the Health Board on an unpleaded complaint based only on a few answers in cross-examination given at a time when this issue was not on the table.The Judge's failure to refer to the decision of the Employment Relations Authority[19] Mr Cullen complained that the Judge did not give proper consideration to the earlier decision of the Employment Relations Authority. In this regard he referred toCoutts Cars Limited v Baguley [2002] 2 NZLR 533 at [4] (CA) which makes it clear that it is permissible for the Employment Court to have regard to the decision of the Employment Relations Authority even where a challenge is heard de novo. [20] That the Authority's decision was not referred to by the Judge does not mean that she did not take it into account. In any event, in the end, she was far better placed than the Employment Relations Authority to determine on the key factual issues involved in the case given that the hearing before her involved far more evidence about, and detailed analysis of, the facts than the hearing before the Employment Relations Authority.Outcome[21] The jurisdiction of this Court to grant leave to appeal is limited and we are satisfied that it would be wrong for us to do so in this case. The application for leave to appeal is accordingly dismissed. Dr Paul is ordered to pay costs of $1,000 to each of the two respondents together with usual disbursements.Solicitors: Cullen - The Employment Law Firm, Wellington for Applicant Simpson Grierson, Wellington for Respondents