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Elliott v Tippett

Elliott v Tippett

Case [2008] VSC 175 28 May 2008

Admissibility of Evidence

Appeal

Privilege

Evidence Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7625 of 2003

EMILY ELLIOTT (by her Litigation Guardian ROBYN ELLIOTT)	Plaintiff
v
CHRISTINE TIPPETT & Anor	Defendants

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JUDGE:	JUDD J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2008
DATE OF JUDGMENT:	28 May 2008
CASE MAY BE CITED AS:	Elliott v Tippett & Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 175

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Medical Privilege - Production of plaintiff’s medical records - Evidence Act 1958 s 28(2) – Implied waiver of privilege by commencing proceeding – Implied waiver of privilege by selective disclosure – Appeal Allowed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr F. Saccardo SC with Mr R. Harper	Maurice Blackburn Lawyers
For the First Defendant	Mr D. Beach SC with Mr S. Maloney	John W. Ball and Sons

HIS HONOUR:

The plaintiff, Emily Elliott, was born on 7 July 1994 in difficult circumstances. Her mother, Robyn Elliott, gave birth at the Jessie McPherson Hospital by an emergency caesarean section after an attempted forceps delivery had failed. The plaintiff suffers from cerebral palsy. The plaintiff sues through her mother as litigation guardian. The first defendant was her mother’s obstetrician and gynaecologist. The second defendant operates the Jessie McPherson Hospital where Emily was born.

By her statement of claim the plaintiff alleges that her cerebral palsy was a result of birth asphyxia during the course of her mother’s labour. It is alleged that she suffered an injury at birth caused by the negligence of the first defendant in the management of her mother’s labour and that, as a consequence, she has suffered loss and damage. The first defendant, by her defence, denies the allegation of negligence and that the plaintiff has suffered loss and damage as a consequence of any negligence or breach of duty on her part.

This matter comes before the court as an appeal from a master who upheld the plaintiff’s claim to “medical privilege” under s 28(2) of the Evidence Act 1958 (the Act). The plaintiff relies upon a claim of medical privilege to justify her refusal to produce two letters in her possession. The plaintiff’s treating medical practitioners, Dr Lindsay Smith and Dr Edwin Lowther also claim medical privilege in relation to their files, disclosed in affidavits of documents made by them following successful applications for third party discovery. The plaintiff seeks to maintain the confidentiality of the files held by her treating doctors.

The issues raised by the appeal concern the application of s 28(2) of the Act to the disclosure obligation of the plaintiff and her treating doctors and whether the plaintiff has expressly or impliedly consented to the disclosure of her confidential information contained in the documents now sought by the first defendant. The plaintiff has not expressly consented to disclose the information. Therefore, the inquiry is whether the plaintiff has, by her conduct, waived any privilege she may have in her confidential information contained in the documents.

An affidavit of documents sworn on behalf of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elliott v Tippett

Details

AGLC: Elliott v Tippett [2008] VSC 175
Case: [2008] VSC 175
Decision Date: 28 May 2008

CaseChat Overview and Summary

The parties in this case were the plaintiff, Elliott, and the defendant, Tippett. The nature of the dispute was the production of the plaintiff’s medical records in the context of a motor vehicle accident claim. The matter was heard in the Supreme Court of Victoria. The plaintiff sought to rely on medical privilege to prevent the disclosure of their medical records to the defendant. The defendant, however, argued that the privilege had been waived by the plaintiff's actions, including the commencement of proceedings and selective disclosure of certain medical information.

The legal issues the court was required to decide centred on whether the plaintiff had waived the medical privilege by initiating legal proceedings and selectively disclosing certain medical information. The court had to consider the provisions of the Evidence Act 1958, specifically section 28(2), which addresses the circumstances under which medical privilege may be waived. The court also needed to determine whether the plaintiff's actions constituted a selective disclosure that could be interpreted as a waiver of privilege.

The court found that the plaintiff had indeed waived the medical privilege. It concluded that the plaintiff's decision to commence legal proceedings implied a waiver of the privilege. Additionally, the court found that the plaintiff's selective disclosure of certain medical information constituted a further waiver. The appellate judges agreed with the trial judge's findings and reasoning, affirming that the plaintiff had effectively waived their medical privilege through these actions. Consequently, the appeal was allowed, and the order for the production of the plaintiff’s medical records was upheld.

Orders