Rubasin v Murphy [2026] QCA 125 (Link to JADE).
Ultimately Bond JA (Bradley and Doyle JJA agreeing) did not express a view on whether it is possible to plead the duty of care on which the self represented applicant apparently sought to rely, in such a way as would survive a strike out application, in the event leave to commence was ever given ([24]). That will need to await a further application by the applicant, if one is made.
The applicant alleged that she had pursued a workers compensation claim for psychological injury arising from workspace bullying; that Workcover had appointed the respondent, a consultant forensic psychiatrist, to examine the applicant; that the respondent had produced a report dated 5 June 2020 and that Workcover had relied on the respondent’s report to reject the applicant’s workers compensation claim.
The applicant alleged that the respondent psychiatrist breached his duty of care to her by diagnosing her as having Schizophrenia; by making erroneous statements about her in the report which could be regarded as negligent misrepresentations and by making manipulated statements about her in the report ([6]).
Although the primary judge recognised by reference to authority that an application for leave was not the occasion for a hearing or determination on the merits, the primary judge’s ex tempore reasons reveal that she made just such a determination by accepting the submissions from the respondent that “the duty of care as alleged by the applicant does not arise in respect of the particular relationship between the applicant and a medical practitioner who is appointed to undertake an independent medical examination pursuant to the Workers’ Compensation and Rehabilitation Act.” ([13]).
Her Honour erred by deciding to embark on a consideration of the underlying merits of the existence of the alleged duty of care ([19]). The Court of Appeal went on to re-exercise the discretion, but the inadequacies of the claim and the statement of claim were such as to warrant a refusal of the exercise of the discretion to grant leave to commence the proceeding by filing the claim and the statement of claim in their present form.([21]).
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