Bester v Fantasy Egg Farm (Tas) Pty Ltd

[1989] TASSC 116

Serial No B38/1989
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Bester v Fantasy Egg Farm (Tas) Pty Ltd [1989] TASSC 116; B38/1989

PARTIES:  BESTER
  v
  FANTASY EGG FARM (TAS) PTY LTD
  CREST POULTRY PTY LTD

FILE NO:  1600/1984
DELIVERED ON:  27 September 1989
JUDGMENT OF:  The Master

Judgment Number:  B38/1989
Number of paragraphs:  17

Serial No B38/1989
File No 1600/1984

BESTER v FANTASY EGG FARM (TAS) PTY LTD
AND CREST POULTRY PTY LTD

REASONS FOR JUDGMENT  THE MASTER

27 September 1989

1. The first named defendant filed an interlocutory application seeking orders that the plaintiff make further and better answers to interrogatories numbered 1(b) and 4.

1. At the outset of the hearing counsel for the plaintiff conceded that a further and better answer should be given to interrogatory number 1(b). Interrogatory number 4 remains in issue.

1. The pleadings in this action, which have been tendered, disclose that the plaintiff claims against the defendants in negligence, breach of contract and statutory duty arising out of an alleged accident on 14 June 1983, when the plaintiff, as an employee of the first defendant, suffered a spinal injury whilst loading a delivery truck with trays of eggs from a trolley.

1. The first–named defendant denies the material allegations pleaded in the statement of claim and does not admit that the plaintiff suffered the injury alleged. The first–named defendant pleads, in the alternative, contributory negligence.

1. Interrogatory number 4 and the answer are as follows:–

"Interrogatory No 4
What did you tell Dr          I object to answering this

Graham Jones as to how     interrogatory as it seeks
your injury was                to obtain information which
received?  is privileged and is not a
matter proper for Interrogatories. It is fishing."

  

1. The objection to answering the interrogatory was not taken in the affidavit verifying the interrogatories, as required by O33, r7(3)(a) of the Rules of Court but no point was taken to this requirement.

1. Mrs Mills of counsel for the plaintiff objected to interrogatory number 4 being answered on three grounds. Firstly, she submitted that the plaintiff's statement to the doctor is privileged pursuant to the provisions of s96(2) of the Evidence Act 1910. Secondly, it is submitted that the question is not a matter proper for interrogatories as it seeks evidence as to the plaintiff's case rather than facts which are directly or indirectly in issue between the parties and, thirdly, the interrogatory is fishing in that it seeks evidence as to conversations which are not material parts of the facts in issue.

1. As to medical professional privilege, Mr Pickard of counsel for the first–named defendant submitted that the interrogatory in issue is not directed to the medical content of what the plaintiff discussed with her doctor about the nature of her injury, but how it was received.

1. He further submitted that the privilege given under s96(2) of the Evidence Act 1910 does not extend to statements made by a patient to the physician, but only to the revelation of such statements by the physician.

1. There is no medical professional privilege at common law and it appears that only Victoria, Tasmania and the Northern Territory have enacted legislation to give statutory recognition to it. Mr Pickard referred to Cross on Evidence, 3rd ed. at p246, where the learned author deals with "the subject of communications between doctors and their patients". The underlining is mine. He also referred to Wheeler v Le Marchant (1881) 17 Ch D. 675 for the proposition that s96(2) of the Evidence Act 1910 should be given a restricted interpretation. Wheeler's case dealt with the question of legal professional privilege, but at p681 Jessel MR said:–

"The communications made to a medical man whose advice is sought by a patient with respect to the probable origin of the disease as to which he is consulted, and which must necessarily be made in order to enable the medical man to advise or to prescribe for the patient, are not protected."

1. Section 96(2) of the Tasmanian Evidence Act 1910 alters the common law position and gives the privilege a similar standing to that of legal professional privilege.

1. In reply, Mrs Mills submitted that to restrict the privilege of the communications between the doctor and patient only to the doctor would render s96(2) otiose.

1. Upon the material before me on this application, I am satisfied that what the plaintiff might have told Dr Jones about how she received the injury was an integral part of any communication and was necessary to enable him to diagnose, prescribe or act for the plaintiff in treating her injury. As such the nature of any such communication does not fall outside the protection of medical professional privilege as enacted in the statute.

1. It is clear from numerous authorities that communications passing from the client to a solicitor and from the solicitor to the client for the purpose of obtaining legal advice or in anticipation of legal proceedings are privileged. (See Grant v Downs (1976) 135 CLR 674). In my view the same principle should apply to communications by a patient to a doctor for the purposes specified in s96(2) of the Evidence Act 1910. Any other view, I think, would make the protection of the subsection largely illusory. (See Taylor v Taylor [1956] Tas SR 84). In that case, which was an appeal under the Maintenance Act 1921, Gibson J held that a spouse's communication to her doctor was privileged. His Honour said at p86:–

"Her statements to him and to her husband in his presence as to domestic trouble, as to her husband's excessive sexual demands and excessive drinking, and as to their financial affairs were clearly all communications of the character described in s96 (2)."

Further the applicant in that case was not deemed to have waived the privilege in giving the evidence of communications to the doctor in cross–examination. His Honour held at p87:–

"The particular matters as to which the appellant's solicitor wished to call Dr Thompson were matters which were not put forward by the respondent. They were introduced in her cross–examination; and it would be destructive of the purpose of s96 if a consent could be manufactured by the simple process of cross–examining on the matters sought to be introduced."

1. I therefore uphold the plaintiff's objection to answering the interrogatory in question on this ground. I would also, as a matter of discretion, uphold the plaintiff's objection on the ground that the interrogatory is not sufficiently relevant to allow it. Apart from the question of privilege it borders on matters of evidence and cross–examination as to credit rather than material facts. As Walters J said in Tiver v Tiver [1969] SASR 40 at p50:–

   "To sum up my discussions of the principles governing the admissibility of interrogatories, I think it is correct to say that the Court has a wide discretion in determining whether interrogatories should be allowed, that interrogatories ought not to be allowed merely as to the credibility of a party, or if their object is only to establish facts which, if proved, will not of themselves prove the material issues apparent on the pleadings, or provide a link in the chain of evidence necessary to establish the case disclosed by the pleadings. It is my view, therefore, that the questions which fall for consideration on this appeal are whether the facts which are the subject of the interrogatories under appeal are substantially relevant to the existence of the facts in issue, whether they are of sufficient importance to the proof of the appellant's case, whether the answering of the interrogatories will involve nothing more than a pure cross–examination, whether it will create vexation and oppression to require the respondents to answer them, and finally, whether they will give rise to a complicated investigation and undue expense."

2. Interrogatories will not be allowed merely as to credit, but are matters proper for cross–examination. However, if the questions relate to material facts, they may be allowed, even though a question of credit is involved. (See Dunbar v Perc [1956] VLR 583 and Kadlunga v Electricity Trust of South Australia (1986) 43 SASR 313 at p322).

1. I therefore hold that the plaintiff is not required to make a further and better answer to interrogatory number 4. The plaintiff is required to make a further and better answer to interrogatory 1(b). I shall hear counsel as to the time in which the interrogatory should be answered.