Duty of Care to Trainees – a novel approach

by | Mar 10, 2016 | Health Blog

A trainee of the College of Dermatologists alleged, among other things, that the College owed him a duty of care to avoid psychiatric harm when exercising its disciplinary functions. The College denied that such a duty existed.

In Sklavos v Australasian College of Dermatologists [2016] FCA 179, Dr Sklavos made 3 claims against the College, being:

  1. The College engaged in either direct or indirect disability discrimination in contravention of the Disability Discrimination Act 1992 (Cth);
  2. The College breached a contract into which it had entered with him in respect of his training;
  3. The College negligently breached a duty of care it owed to him by virtue of his being a trainee of the College.

The relief sought from the Court by Dr Sklavos included an order that he be made a Fellow of the College, despite not having completed his examinations, together with monetary compensation.

The Federal Court dismissed his application, finding that the College’s refusal to waive any part of the examination requirements was not due to the doctor’s disability (he had been diagnosed with a specific phobia relating to sitting the College’s examinations) or any breach of the traineeship contract. It was also held that the College had not failed to fulfil the assumed duty of care.

The interesting aspect of this case is its discussion regarding whether or not a duty of care was owed by the College to the trainee.  Ultimately, the Court proceeded on the basis of accepting that the College was subject to the alleged duty of care. However, this appears to be because the College did not raise any legal argument before the Court as to why such a duty did not exist. The Court comments that the College’s submissions on this point amounted to little more than a bare denial that any duty of care existed and provided no assistance on the issue, which was surprising given the importance of the question.

In considering whether or not a duty of care existed the Court looked at the salient features of the relationship between the College and a trainee. It noted that the College had power over the trainee’s progress and satisfying the College’s requirements was the only pathway in Australia to enable a doctor to practice as a dermatologist.  It was also reasonably foreseeable that a trainee may suffer harm, be it economic or psychiatric, by subjecting themselves to the training program and the College’s disciplinary powers. Trainees were vulnerable to exercises of power by the College and had only limited capacity to protect themselves from those exercises of power. It was also the case that the College must be taken to know of the potential vulnerability of its trainees to its conduct.

Whilst it was acknowledged that these factors tended to support the existence of a duty on the part of the College, the Court noted that the indicia of proximity, vulnerability and control were not necessarily determinative of the point. Consideration must also be given to the College’s important functions of ensuring that only appropriately qualified dermatologists are allowed to practice and treat the general public. The Court considered that this demonstrated an unacceptable degree of inconsistency between the alleged duty of care and the College’s functions – a conclusion which then undermines the recognition of the alleged duty of care.

However, despite the persuasive arguments against the existence of a duty of care that the Court itself identified, it accepted that a duty was owed, primarily it seems, because the College did not strenuously argue against its existence. This is unfortunate and whilst the trainee in this particular case was unable to successfully establish any breach of the duty of care, the case does open the door for future claims to allege negligence against the College in relation to its conduct with trainees.

Gemma McGrath

Gemma McGrath